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PATNA HIGH COURT
S.N.P.Singh and S.K.Jha JJ.
Parhlad Jha
Versus
Sonelal Mahton
Appeal From Appellate Decree No. 704 of 1964 ;
Miscellaneous Appeal No. 354 of 1963 ;
Decided On : MARCH 15, 1974
Held, that it is well settled that if under the provision of Or. 1 R 9 of the Code, the Court can deal with the matter in controversy so far as regards the rights and interest Vis-a-Vis the remaining respondents, it shall proceed to so decide. (Para 4)
Code of Civil Procedure (Act 5 of 1908) Or. 22 R. 2, 4 & 9-Non substitution of one of the heirs of the deceased respondent-Abatement Principles of.
Held, that under the provisions of order 22 R. 2, where there are more defendants or respondents than one or any of them dies and where the right to sue survives against the surviving defendant or respondents alone, the Court has to cause an entry to be made to that effect on the record and the suit or the appeal shall proceed as against the surviving defendants or respondents. Where however the right to sue does not survive as against the surviving defendants or respondents alone, there the provisions of Rules 4 of Order 22 will be attracted immediately. Under the provisions of Rule 4 an application must be filed to bring on record the heirs and legal representatives of the deceased defendant or respondent in whom the right of the deceased devolves and against whom the right to sue may be said to survive. If such an application "is not made within the period of limitation, namely 90 days from the date of death, then abatement occurs and the suit or appeal abates as against the deceased defendant or respondent In the event of such an abatement taking place, an application under the provisions of Rule 9 of or. 22 must be filed within the prescribed period for setting aside abatement. The well settled principles are :-
(a) if the case is covered by the provisions of Rule 2 of Or. 22, there is no question of any application for substitution. This will be a case where all the heirs of a deceased defendant or respondents are already on the record in whatever capacity they may be.
(b) Where all the heirs of the deceased defendant or respondent are not on record, then an application in terms of express provisions of or 22 R. 4 must be made, because in such a case it can not be said that the right to be sued against survives only on such heirs who are already on record"... Therefore where a party respondent dies, although some of the heirs may be on record, that can not absolve the appellant of the duty to file an application in terms of Rule 4 of Or. 22.
(c) Where upon the death of a defendant or respondent an application is made bonafide within the period of limitation bringing only some of the heirs and legal representatives of the deceased on the record, the law deems it to be sufficient representation because an application in terms of Rules 4 has already been filed within the prescribed period.
(d) Where an heir or legal representative of the deceased defendant respondent is left out malafide due to some ulterior motive or on account of fraud or collusion, then the legal fiction of such a full representation of the estate will not be attracted and the suit or the appeal in such circumstances will also be held to have abated against the deceased defendant or respondent. (Para 4)
Held, on the facts of the case that since on the death of Respondent No. 5 all the legal representatives were not on the record and no application to bring on record any of such heirs was made within the prescribed period, abatement did occur...... The application was not made bonafide within the prescribed period in terms of Rule 4 of or. 22 and the appeal must he held to have abated of against deceased respondent No.5. (Para 5)
Resjudicata-Abatement in lower appellate Court-High Court remanding the case for deciding the question of abatement-lower appellate Court on remand holding abatement of appeal-question that there has been no abatement, whether can be raised in appeal after the order passed on remand.
Held, that the appellants cannot be permitted to raise the plea that there was no abatement, since the High Court having remanded the case on the previous occasion to the court of appeal below on the ground that the appeal had abated against deceased Respondent No.5. The point must be held to be barred by the principles of res judicata. (Para 7)
S.K.Jha, J.
1. These two appeals have been preferred by the plaintiffs. The Miscellaneous Appeal is directed against the order of the lower appellate court dismissing the plaintiffs (who were also appellants in the lower appellate court) application for setting aside abatement and substitution of the heirs and legal representatives of one Satahu Mahto, who was minor respondent No. 5 before that court. The second appeal is directed against the judgment and decree holding, in pursuance of the above mentioned order of rejection of the application for setting aside abatement, that the entire appeal before the lower appellate court had become incompetent and, accordingly, the plaintiffs appeal before that court was dismissed.
2. Shortly stated the facts giving rise to these appeals are these. The appellants had instituted Title Suit No. 92 of 1953 for a declaration of title and recovery of possession against a number of defendants including the aforesaid Satahu Mahto, who was the minor defendant No. 5 in the suit, his father, Sonelal Mahto having been impleaded as defendant No. 1 in the suit. The suit was based on allegation, inter alia, that the plaintiffs-appellants were the rightful owners having right, title and interest to 1 B. 13 K. and 13 dhurs of land of khata No. 200 bearing survey plot Nos. 366 to 369 and 1203 and 1204 situate in village Gobindpur Bela. The defendants were alleged to be trespassers who, according to the plaintiffs case, had dispossessed them giving rise to a cause of action for instituting the suit. The trial court dismissed the plaintiff-appellants suit on the findings, inter alia, (i) that the plaintiffs had no right, title and interest over the disputed land, (ii) that the defendants had been coming in possession over the disputed land as of right and openly for much more than 12 years acquiring title by adverse possession and (iii) that the plaintiffs story of possession and dispossession as alleged was not correct and the suit was barred by limitation. Against this decree of the trial court, the plaintiffs preferred an appeal before the lower appellate court which, however, was dismissed by a judgment and decree dated the 31st of January, 1959. The appellants thereafter preferred Second Appeal No. 554 of 1959 in this Court. During the pendency of the aforesaid second appeal, it transpired that one of the defendants-respondents namely, Satahu Mahto, minor respondent No. 5 son of Sonelal Mahto, respondent No. 1 had died on 3-10-1958 during the pendency of the appeal before the lower appellate court. The matter came up on the Lawazima Board before the learned Registrar on 1-8-1960 at the instance of the appellants merely for noting of the fact that the aforesaid Satahu Mahto was dead and that his heirs were already on record. On 9-12-1960, however, the respondents filed an application before this Court supported by an affidavit that the respondent No. 5 aforesaid had died leaving behind his mother, Musammat Daulat Kuar, who had not been brought on the record by the appellants within the period of limitation although the appellants knew of the existence of the mother of the deceased respondent No. 5. The appellants, thereafter on 14-3-1971 filed a counter-affidavit in this Court stating that they had learnt about the death of the aforesaid Satahu Mahto on 25-7-1960 and that at that time the appellants did not know of the existence of the mother of the deceased respondent No. 5. An application was, accordingly filed for setting aside abatement before this Court. At the final hearing of the aforesaid second appeal, this Court remanded the case to the lower appellate court, after setting aside its judgment and decree, for disposing of the appeal after passing appropriate orders on the application for setting aside the abatement of the appeal in the court below. It is on such a remand that the present judgment and decree dated the 31st of July, 1963, has been passed by the lower appellate court where
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