Article 227 jurisdiction not to interfere with lower courts absent perversity; prior deletion of deceased defendant from parties negates abatement or substitution issue post-remand.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this petition, filed under Article 227 of the Constitution of India, the petitioners have challenged the judgment passed by learned Appellate Court in an appeal preferred under Section 96 of the CIVIL PROCEDURE CODE , in terms whereof, learned Appellate Court upheld the judgment passed by learned Trial Court. This petition has been preferred under Article 227 of the Constitution of India against the judgment and decree passed by the learned Appellate Court in light of the provisions of Section 102 of the CIVIL PROCEDURE CODE , in terms whereof, no second appeal shall lie from any decree when the subject matter of the original suit for recovery of money does not exceeds Rs.25,000/-. As the suit was for recovery of Rs.10,000/- as nominal damages and in light of Section 102 of the CIVIL PROCEDURE CODE , as the second appeal was not maintainable, the petitioner has invoked this provisions on the ground that the there is perversity in the judgment and decree passed by the learned Courts below.

2. Learned Counsel for the petitioners at the very outset submitted that in fact the petitioners had earlier filed a Regular Second Appeal against the judgment and decree passed by the learned 1st Appellate Court, but the same was withdrawn and thereafter, this petition has been filed under Article 227 of the Constitution of India.

3. Learned Counsel argued that the suit filed by the plaintiff was earlier decreed in terms of judgment and decree dated 28.11.2024. This judgment and decree was assailed by way of an appeal under Section 96 of the CIVIL PROCEDURE CODE . Learned Appellate Court, in terms of judgment dated 26.07.2016, allowed the appeal and remanded the matter back to the learned Trial Court to, inter alia, decide the case afresh in light of the fact that it was pointed out before the learned 1st Appellate Court that learned Trial Court had passed the decree against defendant No.1 Hari Ram, who was dead and who died during the pendency of the civil suit on 12.04.2024 and his legal representatives were not brought on record during the trial. In this backdrop, learned Appellate Court while remanding the matter back and setting aside the judgment and decree under challenge, passed directions to the learned Trial Court to allow the plaintiff to take consequential steps on the death of defendant No.1 Hari Ram and decide the question of substitution of her legal representatives and also the question of abatement of the suit itself.

4. Learned Counsel submitted that the perversity with the judgments and decrees under challenge is that this specific direction issued by the learned Appellate Court while remanding the matter has been ignored both by the learned Trial Court as well as the learned Appellate Court as the issue of abatement has not been discussed and adjudicated upon by both the learned Courts below.

5. On the previous date of hearing, this Court had directed the Registry to produce the record of the proceedings before the learned Trial Court as well as learned Appellate Court. The original record has been made available for the perusal of the Court. A perusal of the original record demonstrates that after remand when the matter was taken up by the learned Trial Court, then on 14.09.2016, it passed the following order:-

“File taken up today as 13-9-16 was holiday.

Ld. counsel appraised the counts that name of defendant No.1 has already been deleted deleted as per statement. From perusal of order sheet, it is evident that vide order dated 5-7-04 name of defendant No I is deleted, however, amended memo was no