JAI SHANKAR PD Vs. JAGDISH UPADHAYA

JUDGEMENT

(1.) Ram Das, who was the second plaintiff in the suit and respondent No. 8 in the appeal, died during the pendency of the appeal in the lower appellate court but no application for substitution was made within limitation by Jai Shankar Prasad, the son of the first plaintiff Ram Prasad who alone had appealed from the decree of the trial court dismissing the suit. After the death of Ram Das, an application was made by the respondents before the lower appellate court, praying that the appeal be declared to have abated as a whole. According to the plaintiff-appellant, Ram Das was a pro forma respondent and the appellant had the right to prosecute the appeal and to have it heard in spite of his death and without substituting his heirs and legal representatives. An application under Order XXII, Rule 9 of the Civil P. C. accompanied with an application under Section 5 of the Limitation Act was also moved by the plaintiff-appellant in the lower appellate court for setting aside the abatement caused by the death of Ram Das and for substitution of his heirs, after condoning the delay in making the application for setting aside the abatement. The fact of the death of Ram Das was established to the satisfaction of the lower appellate court The lower appellate court considered the application under Order XXII, Rule 9 of the Civil P. C., and that under Section 5 of the Limitation Act and held that there was no sufficient explanation from the side of the plaintiff-appellant to show "as to why he did not apply for the prayer Under Section 5 immediately after the application 23-C2 of the contesting respondent"; and that the application Under Section 5 was made "about' 2 1/2 months after the respondent's application 23 C/2". The lower appellate court refused to condone the delay in applying for setting aside the abatement of the appeal caused upon the death of Ram Das. The lower appellate court also held on the basis of the decision of this court in Sis Ram v. Asa Ram, AIR 1963 All 306 that the appeal could not be heard and must be deemed to have abated as a whole.

(2.) Mr. Triloki Nath, learned counsel for the plaintiff-appellant relied on a decision of the Supreme Court in Mahabir Prasad v. Jage Ram. AIR 1971 SC 742 and contended that it was open to the plaintiff-appellant to have appealed from the decree without impleading Ram Das as a respondent inasmuch as the decree of the trial court proceeded on a ground common to all the plaintiffs and if the plaintiff-appellant had done so, there was nothing in the Civil P. C. to prevent the lower appellate court from reversing or varying the decree of the trial court in favour of all the plaintiffs under Order 41, Rule 4 of the Civil P. C. It was urged that in a case to which Order 41, Rule 4 of the Civil P. C. is applicable as aforesaid, it is not necessary for the appellant to implead the heirs and legal representatives) of the deceased respondent, who is not a necessary party to the appeal but has been impleaded merely as a pro forma respondent. The decision of the Supreme Court in Mahabir Prasad's case is a clear authority in support of the contention of Mr. Triloki Nath that the appeal did not abate on the death of Ram Das and could be heard as a whole at the instance of the plaintiff-appellant; and the appellate court could in exercise of its power under Order 41, Rule 4 of the Civil P. C., even reverse or vary the trial Court's decree in its entirety, notwithstanding that the heirs and legal representatives of Ram Das were not before it.

(3.) Mr. S. N. Srivastava, learned counsel for the respondents, placed before me another decision of the Supreme Court in Hari Har Prasad Singh v. Bal-mik Prasad Singh, AIR 1975 SC 733. That decision does not run counter to the facts of Mahavir Prasad's case. It appears that in Hari Har Prasad Singh's case one of the appellants had died during the pendency of the appeal and his legal representatives were not brought on record. Mr. Srivastava, learned counsel for the respondents then relied on the majority judgment of Palekar, J. in Ramagya Prasad Gupta v. Murli Prasad, AIR 1972 SC 1181 and pointed out that although Mathew. J, in his minority view relied on Mahabir prasad's case (AIR 1971 SC 742) (supra), the majority view is not consistent with the view in that case. Be that as it may, the facts of that case are distinguishable, inasmuch as the majority clearly observed (para 17 at 1185) that the various parties in the appeals and the suit in that case stood both in the position of a plaintiff and a defendant, and it did not overrule or dissent from the view taken in Mahabir Prasad's case which must have been present to their minds inasmuch as it was relied upon by Mathew, J. The case before me is squarely covered by Mahabir Prasad's case.