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1992 Supreme(J&K) 69
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
B.A. Khan, J.
Maya Ram - Appellant
Versus
Nanak Chand & Ors. - Respondent
CIMA No. 20/1980
Decided On : 08 May, 1992
Advocate For Appellant: L.K. Sharma
Advocate For Respondent: R.S. Thakur
An order of abatement passed on account of failure to bring LRs on record within the prescribed time or as a result that a particular applicant is not the legal representative, may not amount to a decree within the meaning of Section 2 (2) CPC. But that can’t hold true about cases where abatement is due to the court deciding that right to sue does not survive.
Headnote:
ABATEMENT OF SUIT - ORDER OF ABATEMENT - APPEALABILITY - ORDER OF ABATEMENT PASSED ON ACCOUNT OF FAILURE TO BRING LRS ON RECORD WITHIN THE PRESCRIBED TIME OR AS A RESULT THAT A PARTICULAR APPLICANT IS NOT THE LEGAL REPRESENTATIVE, MAY NOT AMOUNT TO A DECREE WITHIN THE MEANING OF SECTION 2 (2) CPC. BUT THAT CAN’T HOLD TRUE ABOUT CASES WHERE ABATEMENT IS DUE TO THE COURT DECIDING THAT RIGHT TO SUE DOES NOT SURVIVE.
Fact of the Case:
A suit for recovery of Rs. 2,500/- was instituted against the appellant in 1968. During the trial, one of the Plaintiffs died in 1972. The trial court ordered the removal of the deceased plaintiff from the index and allowed the other two plaintiffs to continue the suit. The trial court decreed the suit in 1974. In appeal, the District Judge remanded the suit to the trial court to find out whether it had abated. The plaintiffs filed an application for substitution as legal representatives and the court held the suit to have abated as a whole. The plaintiffs appealed against the order of abatement.
Finding of the Court:
The court held that the appeal against the order of abatement was competent. The court held that an order of abatement passed on account of failure to bring LRs on record within the prescribed time or as a result that a particular applicant is not the legal representative, may not amount to a decree within the meaning of Section 2 (2) CPC. But that can’t hold true about cases where abatement is due to the court deciding that right to sue does not survive. In such cases, there is a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and the order amounts to a decree and becomes appealable under section 96.
Issues: Whether the appeal against the order of abatement was competent.
Ratio Decidendi: The court relied on the following principles: * An order of abatement passed on account of failure to bring LRs on record within the prescribed time or as a result that a particular applicant is not the legal representative, may not amount to a decree within the meaning of Section 2 (2) CPC. * But that can’t hold true about cases where abatement is due to the court deciding that right to sue does not survive. * In such cases, there is a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and the order amounts to a decree and becomes appealable under section 96.
Final Decision: The court dismissed the appeal.
2. The short and the point only canvassed that arises for consideration is whether or not the appeal before District Judge was competent.
3. Mr. LK Sharma LC for appellant is emphatic that no appeal would lie against the order of abatement recorded by the trial court, as no such appeal was provided under order 43 of CPC. He says that an appeal could lie only against an older refusing to set aside order of abatement, which could only be passed on an application to be filed by plaintiffs under order XXII Rule 9. Since they had made no such application and judgment of trial court could not be treated to be an order refusing to set aside abatement, therefore, appeal before District Judge, Kathua was incompetent. According to him, it was neither a decree within the meaning of section (2) and, therefore no appeal could lie against it under section 96. He relied upon AIR 1963 All 389 and AIR 1978 Cal. 274 in support of his contention.
4. Mr. R.S Thakar, representing respondents made a two fold counter attack to show that appeal was competent. He argued that since trial court had decided against survival of right to sue of surviving plaintiffs and had ordered the abatement of the suit as a whole, the order was not an order of abatement simplicitor, but a decree and thus appealable under section 96 CPC. Taking the worst, he submitted that plaintiffs application dated 20-5-1976 seeking substitution of legal representatives, was in substance an application for setting aside abatement under Order XXII Rule 9 and the order passed by the trial court an order refusing to set aside abatement which is appealable under order 43.
5. It is in the face of these rival contentions that I am called upon to determine whether or not plaintiffs appeal before District Judge was maintainable? If it can be hold to be maintainable, the trial court™s judgment will go and the suit shall proceed to be decided on merits.
6 Order XXII Rule 3 of CPC deals with procedure in case one of several plaintiffs or sole plaintiff dies. It provides that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or sole surviving plaintiff dies and the right to sue survives, the court on an application made in that behalf, shall cause the legal representatives of deceased plaintiff to be made a party and shall proceed with the suit. Sub-section (2) says where within the time limited by law no application is made under sub-rule (1), the suit shall abate as for as deceased plaintiff is concerned. Rule 9 (2) then provides that when a suit abates or is dismissed under order XXII, the plaintiff may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from c
