RAJDEO Vs. BOARD OF REVENUE

JUDGEMENT

(1.) By means of this writ petition the plaintiff-petitioner has prayed for quashing the order dated 6. 2. 1976 passed by the appellate Court whereby the plaintiff's appeal has been abated and also for quashing the order passed by the second appellate Court dated 17. 1. 1977 whereby the order in first appeal has been maintained. Necessary facts giving rise to the present petition are that the plaintiff-petitioner had filed a suit under Section 229-B of U. P. Z. A. and L. R. Act for declaration of his tenancy right In the disputed land against the defendant-opposite parties in the present writ petition. The suit was dismissed on 4. 9. 1972. Against the judgment of the trial court the plaintiff had preferred an appeal. During the pendency of the first appeal Smt. Chiraiya, defendant-respondent had died and the parties in appeal joined issue about the heirship of Smt. Chiraiya in the appeal, hence a report was called for from the trial court by the appellate Court through the order dated 17th November, 1973 when the enquiry was pending before the trial court it 'appears that Moti Lal, defendant-respondent had died, and the plaintiff-petitioner applied for substitu tion of heirs of deceased Moti Lal through his application dated 27. 6. 1974 (though wrongly typed as '75' in Annexure '2' attached with the writ petition ). The application dated 27 6 1974 was allowed by the trial Court on 17. 12. 1974 and the heirs of the deceased Moti Lal were substituted in the plaint before the trial Court. Thereafter the trial Court submitted Its report about the heirship of deceased. Smt. Chiraiya and the appellate Court passed ther order regarding substitution of the heirs of deceased Smt Chiraiya. When the appeal was taken up for final hearing, a preliminary objection was raised by the respondents to the effect that Moti Lal respondent had died more than a year ago and no substitution application had been moved in the appeal before the appellate Court, hence the appeal had abated. The learned counsel for the plaintiff-petitioner took a stand that the substitution of the heirs of deceased Moti Lal had taken place before the trial Court when the enquiry was pending, hence it was not necessary for the plain tiff-appellant to file any substitution application before the appellate court and the substitution of the heirs of deceased Moti Lal would ensure for the benefit of the plaintiff- appellant at every stage of the proceedings. The appellate Court did not agree with the contention of the learned Court for the plaintiff-appel lant and abated the appeal as is evident from the impugned judgment dated 6. 2. 1976. Aggrieved by the judgment of the appellate Court the plaintiff filed a second appeal which has also been dismissed through the impugned judgment dated 17. 1. 1977. Now the plaintiff-petitioner has approached this Court under Article 226 of the Constitution and has prayed for the quashing of the judg ment of the first appellate Court and that of the second appellate Court. Before me also the learned counsel for the plaintiff-petitioner has reitera ted his intentions and has placed reliance upon the ruling reported in Brij Inder Singh v. Laja Kanshi Ram and other (A. I. R. 1917 P. C. 156) and Rangubai kom Sankar Jagtap v. Sunderabai Bharater Shakaram Jadhe and others (A. I. R. 1965 S. C. 1794) The learned counsel for the plaintiff-petitioner also invited my attention to the ruling reported in Ajodhia Prasad v. Ram Narain and another (A. I. R. 1921 All. 127 ). He has emphasised before me that the appellate Court and the second appellate Court have patently erred in dismissing the plaintiff's appeal on the ground that it had abated In the circum stances mentioned above. None appeared on behalf of the defendants-respondents. I have considered the contentions raised on behalf of the plaintiff-peti tioner. I have gone through the ruling in Ajodhia Prasad v. Ram Narain and another (supra) I do not find any thing material regarding the question under consideration in the present writ petition. The learned counsel for the peti tioner could not point out any observation in the aforesaid ruling which could be helpful in support of his contention. To my mind the aforesaid ruling has no bearing upon the question under my consideration. In Brij Inder Singh v. Lola Kanshi Ram and other (supra) no doubt it has been observed that the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages. The aforesaid observation in the ruling of their Lordship of Privy Council has been considered by Madras High Court as well by their Lordships of the Supreme Court. The learned counsel for the plaintiff- petitioner has also placed reliance upon the ruling reported in Rangubai Kum Sankar Jagtap v. Sunderbai Bhartar Sakharam and others (supra) and has emphasised that the substitution of the heirs of deceased Moti Lal respondent before the trial Court was enough on the part of the plaintiff-petitio ner in the circumstances of the present case and the first appellate court and the second appellate Court have patently erred In dismissing the plaintiff's appeal as abated. I have gone through the aforesaid ruling of the Supreme Court and it is difficult for me to accept the contention of the learned counsel for the plaintiff-petitioner in this case. Their lordships of the Supreme Court have considered the ruling and have also considered the ruling reported in Brij Inder Singh v. Lala Kanshi Ram and others (supra) and have also considered the Madras view expressed in Shankaranaratna Sarajaya v. Laxmi Hengs and others A. I. R. 1931 Mad. 277,278 and thereafter they have expressed themselves in paragraph 10 of their judgment as below: "but the same legal position cannot be invoked in the reverse or converse situation. A suit is not a continuation of the appeal An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom but it cannot be projected backward into the appeal that has already been filed. It cannot possibly become an order in appeal. Therefore, the order bringing the legal representatives of the 7th respondent on record in the final decree, proceedings cannot ensure for the benefit of the appeal filed against the preliminary decree". To my mind on analogy it can be said in the present case that the substi tution regarding the deceased Moti Lal before the Trial Court when enquiry was pending would not be of any help to the plaintiff- petitioner in the appeal filed by him and pending before the appellate Court. It was necessary for the plaintiff-petitioner to have applied for the substitution of the heirs of deceased Moti Lal in the appeal before the appellate Court within time. Moreover, the learned counsel for the plaintiff-petitioner should have applied for substitution of heirs of deceased Moti Lal and for setting aside the abatement and for condonation of delay in bringing the substitution application in the circumstances of the present case before the first appellate court. Apart from the legal stand taken by the learned counsel for the plaintiff- petitioner he should have taken alternative stand by applying for substitution and setting aside by abatement with a prayer for condonation of delay. In not doing so he has committed a blunder. At no stage of the suit, proper and correct stand has been taken on behalf of the plaintiff-petitioner so far. I find that in Tikam Singh and others v. Lakhi Singh and others A. I. R. 1929 All, 319 a similar question as under my consideration in the present writ, arose before a Division Bench of this Court and it has been answered as below; "the only Court which had seisin of the appeal was, therefore, the Court of the learned District Judge of Agra, while proceedings were pending under the Directions of the learned District Judge before Mr. Shamsul Hasan, the Additional Subordinate Judge of Agra one of the respondents died on 14th November, 1924. No application was made for substitution of the names in the Court of the District Judge within 90, days from the date of the death of Frunt, On 18th April, 1925 the respondents made application in the Court of Mr. Shamshul Hasan that Frunt having died and no legal representative of Frunt having been brought upon the record within the statutory period, the appeal has abated in its entirety and the Court should declare that the appeal has so abated. The learned Additional Subordinate Judge had no jurisdiction to entertain this application, and he properly refused to grant the prayer contained in the application of the respondents. The plaintiff-appellant, however, moved the Additional Subordinate Judge by an application dated 22nd April, 1925 that certain persons should be brought upon the record as the legal heirs and representatives of Frunt deceased. Notice was issued upon this application and it was eventually granted on 30th May 1925. The learned District Judge had already held that the pedigree set up by the plaintiff was established. When the appeal came on for final disposal it was urged that the appeal had abated because there was an indivisible cause of action affecting Frunt and the other two defendants and that no legal representatives of Frunt had been brought upon the record in the Court below within the statutory period. The learned District Judge refused to entertain this plea and the reasons given by him are rather curious', "on 30th May, 1925 the learned Additional Judge ordered under Order 21, Rule 4 that the legal representatives of Frunt should be brought on the record and he issued notice to them and brought them on the record and subsequent to this evidence was taken. Under Order 43 Rule I. there is no appeal from an order under Order 22 Rule 4, bringing legal representatives of deceased defendant or respondent on the record. Consequently the matter cannot be raised in appeal. " The findings of the court below on this point proceeds upon an obvious fallacy. The only Court which had the seisin of the appeal was the Court of the learned District judge and his powers in whole or in part had not been delegated to the Additional Subordinate Judge. The only Court, therefore, which could entertain an application for substitution of names was the court of the learned District Judge. The Additional Subordinate Judge was not com petent to either entertain or to pass any orders upon the application made by the plaintiff for substitution of namw. The order, therefore of the learned Subordinate Judge dated 30th May 1925 was pasted without jurisdiction. In my opinion in the present case the order passed by the Trial Court while enquiry was pending before it and the first appeal filed by the plaintiff was pending before the appellate Court, the substitution of the heirs of deceased Moti Lal would be without "jurisdiction and such an order would be of no help to the plaintiff-petitioner in the circumstances of the present case. Thus the abatement of the first appeal by the first appellate court confirmed by the second appellate Court cannot be termed as patently erroneous in the circumstances of the present case. To my mind the impugned judgments in the present writ petition are quite in consonance with the decision given by the Division Bench of this Court in the year 1929 mentioned supra. In the result, the writ petition lacks merits and deserves dismissal. Accordingly I dismiss the writ petition and direct the parties to bear their own costs. .