1987 Supreme(MP) 551

IN THE HIGH COURT OF MADHYA PRADESH
T. N. Singh, J.
Avantilal – Appellant
Versus
Amroo – Respondent
S.A. No. 146 of 1986 (G)
Decided On : 18-02-1987

Headnote:(1) Civil Procedure Code, 1908 – O.22, R. 3 – date of death disputed – enquiry should be made.

       (2) Civil Procedure Code, 1908 – S. 100, O. 43, R. 1 (k) – second appeal found not maintainable – may be converted into miscellaneous appeal to correct jurisdictional error.

       (3) Constitution of India – Art. 227 – second appeal under S. 100 CPC found not maintainable – powers under this article may be exercised to correct jurisdictional error.

        Short Note

       1. I have been taken through the order sheet of the appellate Court and it is rightly pointed out to me by Shri Lahoti, appearing for the appellants that on 7 – 9 – 1981, counsel for both sides appeared and on their prayer, hearing of the appeal was adjourned to 5 – 12 – 1981. It is only on 5 – 12 – 1981 when the matter came up before the Court that respondent's counsel submitted to the Court that the appeal had abated on the death of respondent No. 1. The further fact recorded in the order sheet is that the submission of respondent's counsel was that on the proceeding date the information to that effect was given to the appellants' counsel. On the prayer of appellants' counsel on that date, namely, 5 – 12 – 1981, time was granted till 28 – 1 – 1982 for bringing on record legal representatives of the deceased respondent. However, before that on 7.12.1981 itself, an application was filed under Order 22, Rule 3, C. P. C. in that regard, on which four legal representatives were noticed on 28 – 1 – 1982.

       Held: Long thereafter, on 12 – 3 – 1984, the proposed legal representatives preferred their objection in which they, for the first time, mentioned that first respondent was dead on 8 – 1 – 1981. The Court of appeal below, without making any enquiry, dismissed the appeal as abated which order cannot, in any view of law, be sustained as a reasonable, proper or legal order. It may be only mentioned in this connection that when on 7 – 12 – 1981, the application under Order 22, Rule 3, C. P. C. was filed, the appellant/applicant did not mention therein the date of death of the first respondent. Indeed, it is for this reason that the appellants herein as also in the Court below were penalized. Merely because after having information of the death of respondent No.1 Lalchand their failure to state in their application the date of his death, could not be construed as any negligence on their part to prefer the application for substitution beyond 90 days of their knowledge.

       2. When the date of death was not admitted and there was material to suggest that the appellants could not have been in the know of the date even until 7 – 9 – 1981, it was not within the competence of the Court below to accept the averment made by the proposed legal representatives of the deceased respondent as a gospel truth and non – suit the appellants without holding an enquiry in the matter.

       3. For the reasons aforesaid, this appeal must succeed and is allowed. The judgment only of the Court below is set aside and as there is no decree prepared in this case, I agree with the contention of Shri Arun Mishra that this second appeal is not maintainable. I also accept his submission that the order, in fact having been passed under Order 43, Rule 1 (k), C. P. C., a miscellaneous appeal would lie against the impugned order. However, being in session of the matter, I do not see any reason not to treat this appeal itself as a Miscellaneous Appeal and to give necessary relief to set aside the jurisdictional error of the Court below. What I would only add and is that it is a fit case in which I can exercise my power under Article 227 of the Constitution and I have no hesitation at all to do so also in this case. Appeal allowed.