GUDRI Vs. RAM KISHUN

JUDGEMENT

(1.) THIS is an appeal by the Defendants against an order passed by the lower appellate Court allowing the substitution application filed by the Plaintiff -Respondents to bring on record the legal representatives of deceased Ram Adhar.

(2.) ACCORDING to the facts disclosed in the case, suit No. 83 of 1970 was filed by the Plaintiffs -Respondents for injunction. That suit was, however, dismissed on 28.3.1974 against which appeal No. 90 of 1974 was filed. One of the Defendants -Respondents in the Court below was Munshi who died during the pendency of the appeal. His three sons were brought on record including one Ram Adhar. It is said that this Ram Adhar also died on 1.3.1977 as per the version of the Appellant before me. The Plaintiffs -Respondents, however, contend that he had died on 16.4.1977 but they remained absolutely in the dark about his death. For the first time, in early September, 1978, the fact of his death was disclosed by the Appellant's Counsel and, therefore, an application was immediately moved on 13.9.1978 along with an application for setting aside abatement and for condonation of delay in moving that application. By the impugned order, the said application has been allowed and the Court has believed the contention of the Plaintiffs -Respondents that the deceased Ram Adhar was living in another village 10 miles away and that the Plaintiffs could have no notice of his death and, therefore, they were held to have been prevented by sufficient cause from not moving an application for setting aside the abatement within time. Aggrieved by this order, some of the Defendants have come up in appeal.

(3.) IT appears that since the matter now in controversy before me was not directly involved before the Full Bench, due to some oversight the aforesaid observation has been made. The observation does not, however, show that the matter was actually considered by the Bench but shows that it was merely referring to the provisions contained in the Code of Civil Procedure. If there is obvious mistake, the said observation cannot be said to be binding and must be treated to be merely obiter dicta. In the circumstances, the appeal is not legally maintainable and is liable to be dismissed on this ground alone.