HIRALAL RUPDEO MANDLOI Vs. DEEPA BONDAR

JUDGEMENT

(1.) IN this appeal by the Plaintiff -Appellant from the concurrent judgments dismissing his suit, we are at present concerned with a question of procedure. The first appeal itself having abated during hearing as against at least one of the Defendant -Respondents, which is the Court competent to dispose of the belated application for setting aside the abatement made now in this Court during second appeal ? Till this is disposed of, the merits of the second appeal cannot be investigated.

(2.) THE facts are somewhat unusual. The Plaintiff -Appellant Hiralal son of Rupdeo, sued three persons apparently cousins inter se, namely, Deepa, Bhana and Luna, for declaration of title and restoration of possession of certain lands. The suit being dismissed, Hira went up in first appeal which was numbered 4 of 1955 in the Court of Additional Civil Judge First Class, Dhar (with powers of appeal). While this was pending in that Court, one of the Respondents Luna died. It is now common ground that he died on 28 -6 -1955 but this was not brought to the notice of the Court which subsequently completed the hearing and delivered judgment on 30 -6 -1956. Both, in the appellate judgment and appellate decree, Luna is mentioned as a Respondent, neither party having apprised the appellate Court of his death. This second appeal was filed on 1 -10 -1956 by the Plaintiff now impleading the son and the widow of Luna, as substituted Respondents without, however, either stating that he had died during the hearing itself of the first appeal, or seeking to get the abatement set aside. After the parties appeared, it was alleged and admitted that Luna had died on 28 -6 -1955. Thereupon, the Plaintiff -Appellant made the prayer by a petition dated 15 -9 -1959 that the abatement might be set aside and leave granted to substitute the heirs in place of Luna. The Respondents, including the heirs have urged that whatever the merits of the prayer, this matter should be moved before the first appellate Court and till then, the High Court can take no action on this appeal, which is in fact, an appeal from a decree against dead person. On behalf of the Appellant however, it is suggested that at the present stage, the High Court itself may consider this question. Case -law has been cited by both the parties; but the position is simple and can be disposed of without summarizing the case -law.

(3.) THERE is one more point that has to be clarified even at this stage. In case, the abatement is set aside, it will not be the choice of the plain tiff -Appellant to ask for a rehearing of his first appeal. As far as he is concerned, his first appeal has been heard on merits and disposed of, and he cannot by his own latches get the benefit of a re -agitation of his case. Theoretically, the substituted heirs of Luna will, in the event of the abatement being set aside, be entitled to choose whether to accept the decision already given by the first appellate Court or to ask for a re -hearing. But in the present case, where the appeal has been dismissed against their predecessor -in -interest (Luna) they are not likely to ask for a re -hearing. In effect, the first appellate Court will have, after hearing the parties. either to affirm the abatement and reject the present petition, or to set aside the abatement and repeat its earlier judgment as against the substituted Respondents as well.