ABDUL SATTAR Vs. RAM RAKSHPAL

JUDGEMENT

(1.) POONAM Srivastava, J. Heard Sri P. P. Srivastava, Senior Advocate assisted by Sri Suneet Kumar, learned Counsel for the appellant and Sri K. M. Garg, Advocate for the plaintiff- respondent.

(2.) AN objection has been raised at the very out set regarding maintainability of this second appeal by Sri K. M. Garg on the ground that the appeal was instituted by a dead person. Sri P. P. Srivastava appearing for the defendant-appellant has brought to my notice the relevant dates relating to the present second appeal. The plaintiff-respondent instituted a suit No. 134 of 1989 before the Civil Judge (Junior Division), Bijnor for recovery of possession, damages and mesne profit at the rate of Rs. 500/- per month alongwith 18% interest. The Trial Court decreed the suit in part, for recovery of possession and mesne profit at the rate of Rs. 20/- per month with 18% per annum. The defendant-appellant preferred an appeal vide Civil Appeal No. 25 of 2003 which was dismissed vide judgment and decree dated 19-4-2005 by the Additional District Judge, Bijnor. The present second appeal was prepared and affidavit filed in support of the stay application was sworn on 5-7-2005. The appeal was reported on 6-7-2005. It was reported that the limitation of the appeal is up till 3-8-2005. The appeal was presented on 1-8- 2005. In the intervening period, when the appeal was reported and it was presented before the Court, within limitation, the appellant died on 17-7-2005. The order sheet dated 4-8-2005 shows that the appeal came up before the Court for the first time on 4- 8-2005 and thereafter it was adjourned on a number of dates. It transpires from the record that on 8-8-2005 a substitution application under Chapter X, Rule 3 of the High Court Rules read with Order XXII, Rule 4 C. P. C. was moved. On 22-8-2005, this application came up before the Court. Counsel for the plaintiff- respondent accepted the notice and prayed time to file a counter- affidavit. Subsequently, another application under Section 151 C. P. C. was filed and the Court directed the application alongwith accompanying affidavit to be kept on record on 22-8-2005. ANother application under Section 5 of the Indian Limitation Act was also filed for condonation of delay. Simultaneously on the same day another application under Chapter X, Rule 3 of the High Court Rules read with Section 151 C. P. C. was filed, to which counter and rejoinder affidavits have been exchanged. Before the appeal was heard on merits, the respective Counsel for the parties were heard at length on the question of maintainability of this appeal. In the circumstances, I proceed to decide the substitution application and also application under Chapter X, Rule 3 of the High Court Rules read with Section 151 C. P. C. Order XXII, C. P. C. deals with the substitution proceeding to be adopted on the death, marriage and insolvency of the parties.

(3.) AFTER going through the aforesaid decisions cited by the respective Counsels for the parties, so far the application under Order XXII, C. P. C. is concerned, it is correct to say that no substitution can be permitted in a case where there was sole defendant or the appellant and he was dead on the date of institution of the appeal, but where there are more defendants than one, and one of them was dead when the suit was filed or the appeal was presented, the Courts have held that the legal representatives of the deceased-defendant can be brought on record subject to the question of limitation. If there would have been a number of appellants then the suit was very much maintainable at the instance of the other appellants and application for substitution under Order XXII, Rule 4 C. P. C can very well be entertained, In the case of Bala Prasad (supra) this High Court had clearly held that where a suit is filed against the several defendants, one of whom was dead at that time of institution, the suit cannot be considered to have been instituted against a dead person and it cannot be said that it is not a validly instituted suit. In such an event, the Court can exercise all the powers of Order XXII Rule 4 C. P. C. In the present case, however, the situation is altogether different, the appeal was presented by a dead person. Admittedly the appellant Abdul Sattar was not alive on 1-8-2005. He was not alive at the relevant time, therefore, the appeal can very well be said to be a nullity and no aid can be taken under the provisions of Order XXII, Rule 4 or Order VI, Rule 17 C. P. C. The decisions cited on behalf of the plaintiff-respondent so far the provisions of Civil Procedure Code is concerned, appears to be correct law and therefore I come to a conclusion that the application for substitution under Order XXII or Order 6 Rule 17 C. P. C. cannot be allowed. The application for substitution is accordingly dismissed.