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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
V.G. BISHT, J.
Narhari S/o Shrawan Moon – Appellant
Versus
Silas S/o Kannobaji Punwatkar – Respondent
Second Appeal No. 208 of 2019
Decided On : 10-03-2022
Code of Civil Procedure, 1908 - Order 22 Rule 3 and 9 - Limitation Act - Section 5 – Civil Suit – Suit for declaration - Jurisdiction of court - Substitution application on death of party - Legal representatives - Whether impugned Judgment and order of learned Ad-hoc District Judge-1 is legally sustainable in law - Whether learned Ad-hoc District Judge-1 had jurisdiction to decide appeal when appellant had expired during pendency of appeal and their legal representatives were not brought on record - Deceased - plaintiff i.e. father of appellant Nos.1 and 2 herein had filed Regular Civil Suit for declaration that defendant No.1 / respondent No.1 and respondent No.2 are not born from womb of deceased and are not son and daughter of said Jaiwantabai - Deceased - plaintiff had also challenged order passed by Sub-Divisional Officer in Appeal - Deceased - plaintiff had also joined his sister Vijaya Khade as proforma defendant. It was contention that the plaintiff's sister married with Kanhoba - Jaiwantabai had died issueless - Kanhoba had performed second marriage with Ahilyabai in 1964-1965, and respondent Nos.1 and 2 are son and daughter of Kausalyabai.
Finding of the court:
On the death of party in appeal, if no application was made by the party concerned to the appeal or by the legal representatives of the deceased to whom right to sue was devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically after expiry of 90 days from the death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "Dismissed as abated" - The appeal so abated before the Ad-hoc District Judge-1, Kelapur could have been revived for hearing only when firstly, proposed legal representatives of deceased - plaintiff had filed an application for substitution of their names and secondly, they had applied for setting aside the abatement under Order 22 Rule 9 of the Code and making out therein sufficient cause for setting aside abatement and lastly, had filed application under Section 5 of the Limitation Act seeking condonation of delay in filing substitution application under Order 22 Rule 3 of Code beyond statutory period of 90 days. If these applications had been allowed by the First Appellate Court, the First Appeal could have been revived for final hearing but not otherwise. No such case was made out before the learned Ad-hoc District Judge-1, Kelapur inasmuch as no such applications had been filed.
Result: Appeal is allowed
JUDGMENT :
V.G. BISHT, J.
1. Heard. Admit. Heard finally with the consent of learned counsel for the parties.
2. This appeal is filed by the legal representatives of original plaintiff against the Judgment and order dated 23.11.2018 passed by the learned Ad-hoc District Judge-1, Kelapur, whereby the learned District Judge was pleased to dismiss Regular Civil Appeal No. 8/2013.
3. For the sake of convenience, the parties to the proceedings are described as they were described in the proceedings before the learned Ad-hoc District Judge-1, Kelapur. Some of the relevant facts, in brief for deciding this second appeal.
4. The deceased-plaintiff i.e. father of the appellant Nos.1 and 2 herein had filed Regular Civil Suit No. 84/2007 for declaration that defendant No. 1/respondent No. 1-Silas Punwatkar and respondent No. 2-Nalini Tenpe are not born from the womb of deceased-Jaiwantabai W/o Kanhobaji Punwatkar and are not son and daughter of said Jaiwantabai Punwatkar. The deceased-plaintiff had also challenged the order dated 13/08/2007 passed by Sub-Divisional Officer, Wani in Appeal No. RTS-64/4/2006-2007 Mouza Nipani Pimpri, Tq. Wani, Dist. Yavatmal. The deceased-plaintiff had also joined his sister Vijaya Khade as proforma defendant. It was the contention that the plaintiff's sister Jaiwantabai married with Kanhoba Punwatkar. Jaiwantabai had died issueless on 23.08.1992. Kanhoba had performed second marriage with Ahilyabai d/o Laxman Taksande in 1964-1965 and respondent Nos. 1 and 2 are son and daughter of Kausalyabai. In this factual background, suit for declaration and setting aside the order passed by the Sub-Divisional Officer, Wani was filed.
5. After appreciating case of the parties, learned 2nd Joint Civil Judge, Junior Division, Wani, Dist. Yavatmal was pleased to dismiss the suit. The deceased-plaintiff preferred Regular Civil Appeal No. 8/2013, wherein the Ad-hoc District Judge-1, Kelapur was also pleased to dismiss the appeal.
6. It is against this Judgment of learned Ad-hoc District Judge-1, Kelapur. The legal representatives of deceased-plaintiff has filed the present appeal.
7. Heard Shri A.V. Bhide, learned counsel for the appellants and Shri M.L. Chouhan, learned counsel for the respondent Nos. 1 and 2.
8. The only issue raised by the learned counsel for the appellants is that during the pendency of appeal before the learned Ad-hoc District Judge-1, Kelapur, the original plaintiff died and admittedly, since legal representatives were not brought on record, the impugned Judgment came to be passed on merits against the said persons. The learned counsel for the respondents does not dispute this factual position.
9. The short question which arises for consideration in this appeal is “Whether the impugned Judgment and order of learned Ad-hoc District Judge-1, Kelapur is legally sustainable in law?” In other words, the question is whether learned Ad-hoc District Judge-1, Kelapur had jurisdiction to decide the appeal when the appellant had expired during the pendency of appeal and their legal representatives were not brought on record?
10. There is no dispute to the fact that the original plaintiff died on 28.03.2013 i.e. during the pendency of Regular Civil Appeal No. 8/2013. The impugned Judgment and order came to be passed on 23.11.2018 i.e. after the death of deceased-plaintiff. No steps were taken by any of the legal representatives representing the deceased-plaintiff to whom the right to sue had devolved, to file an application under Order 22 Rule 3 of the Code of Civil Procedure, 1908 (For short “the Code”) for bringing their names on record in place of deceased-plaintiff to enable them to continue the lis.
11. On going through the record, it also transpires that though the original plaintiff died on 28.03.2013, the appellants herein were not aware about the pendency of Regular Civil Appeal No. 8/2013 and therefore, they could not bring themselves on record. It is only after the decision of Regular Civil Appeal No. 8/2013, th
Order 22 Rule 3(2) of the Code applies in the case of death of the appellant - plaintiff and provides the consequences for not filing the application for substitution of legal representatives by the ....
Any decree passed in favor of or against a dead person is a nullity.
A judgment against a deceased individual is a nullity, and issues of substitution of legal heirs must be addressed by the court where the case was pending at the time of death.
Substitution and abatement – Where a party dies in a pending suit/appeal and judgment/decree is passed in ignorance to such death, question of substitution of his/her legal heirs and setting aside ab....
A decree passed in favor of a deceased individual is a nullity unless legal representatives are substituted timely, reflecting the necessity of following procedural requirements under the Code.
The central legal point established in the judgment is the necessity of substitution of legal representatives of deceased parties in civil proceedings and the consequences of non-substitution.
The central legal point established in the judgment is the principle that if the entire appeal abates, then the judgment delivered in such an appeal is a nullity.
The non-substitution of legal representatives does not lead to abatement if an application for substitution is timely granted.
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