The appellate court lacks jurisdiction to address merits if it has determined the appeal abated due to a party's death; the proper procedure requires remanding the matter for addressing substitution.

JUDGMENT :

PRANAY VERMA, J.

1. This appeal under Section 100 of Code of Civil Procedure has been preferred by the plaintiff being aggrieved by the judgment and decree dated 13.09.2022 passed in Civil Appeal No.1/2022 by the District Judge, Bhanpura, District Mandsaur arising out of the judgment and decree dated 06.12.2021 passed in Civil Suit No.5A/2019 by the Civil Judge, Senior Division, Bhanpura, District Mandsaur.

2. The plaintiff had instituted an action against the defendants for declaration of title and permanent injunction with respect to the suit land. Rughnath was impleaded as defendant No.2 to the suit. He did not contest the claim by filing any written statement. The claim was contested only by defendant No.1. During pendency of the suit, Rughnath died on 22.03.2019 but no steps for bringing his legal representatives on record were taken by plaintiff. The suit was decided on merits by judgment and decree dated 06.12.2021 by the trial Court and was dismissed.

3. In appeal preferred by the plaintiff, notices were issued to the defendants. The notice issued to Rughnath was received back with the note that he has expired. The plaintiff then filed an application under Order 22 Rule 4 of the CPC for bringing his legal representatives on record. By order dated 12.09.2022 the said application was rejected by the Appellate Court finding no sufficient cause having been made out for permitting substitution. Thereafter, it proceeded to decide the appeal and dismissed the same on merits as well as recorded a finding to the effect that the same stands abated in view of death of Rughnath.

4. By order dated 10.01.2025 this appeal was admitted on the following substantial questions of law:

"A) Whether in view of death of Rughnath having taken place on 22.03.2019 i.e. before the trial Court, the Lower Appellate Court ought to have sent the application for substitution of his legal representatives to the trial Court for decision in accordance with law?

B) Whether upon recording a finding to the effect that appeal has abated, the Lower Appellate Court had jurisdiction to decide the same on merits?"

5. Learned counsel for the plaintiff has submitted that since Rughnath had expired during pendency of the suit, the appellate Court had no jurisdiction to consider the application for his substitution. The same ought to have been sent to the trial Court for adjudication since death had taken place before the trial Court. It is further submitted that once the appellate Court had held that the appeal has abated, it could not have decided the same on merits.

6. Per contra, learned counsel for defendant No.1 has submitted that both the Courts below have recorded a categoric finding that plaintiff has failed to prove his case on merits hence no fruitful purpose would be served by remanding the matter back to the trial Court. The decision has been given on merits in which there is no illegality in view of which the appeal deserves to be dismissed.

7. I have heard the learned counsel for the parties and have perused the record.

8. It has been well settled by decisions of this Court as well as other High Courts that it is the Court where abatement takes place which alone is competent to deal with a prayer for setting aside the abatement. In Hiralal Rupdeo Mandloi V. Deepa Bondar 1960 JLJ 415 this Court categorically held that the Court in which the suit or appeal has abated is the one competent to consider if the abatement should be set aside.

9. The Division Bench of this Court in Ramanand vs. Indira Bai F.A. No.95 of 1967 decided on 03.12.1970 reported in 1971 JLJ Short Note No.49 has held that if abatement takes place in the trial Court during pendency of the suit the decree would appear to hav