GOBINDA PROSAD DAWN Vs. RAJANI KANTA DAWN

JUDGEMENT

(1.) THIS appeal has abated as the legal representatives of respondent No. 1, Rajani, who died about two years ago were not brought on record. Respondent No. 2 Sasthipada who filed a cross-objection claims that although the appeal has abated he has the right to have his cross-objection heard, even if the heirs of respondent No. 1 are not on record. The appeal arose out of a suit for declaration of plaintiff-respondents title to some lands and for recovery of khas possession thereof on removal of obstacles. The trial court had decreed the suit on contest in part. The learned Subordinate Judge who heard the appeal remanded the case to the trial court for a fresh local investigation in regard to the c. s. plot in question. The further direction was as follows:

(2.) MR. Dutta, learned Advocate for the cross-objector, has argued that it on the death of an appellant, another appellant is competent to proceed with the appeal, as has been held in Satulal Bhattacharjee v. Ashiruddin Sheikh (1) (38 C. W. N. 743) and Sarat Chandra Narayan Chowdhury v. Fezuram Nath (2) (46 C. W. N. 281), there is no reason why a cross-objector in similar circumstances; should not be allowed to be heard. Order 41, rule 22 of the Civil Procedure Code contains the law relating to the hearing of cross-objections. Under the law, as it stood before the amendment of the Code in 1908, the cross-objection could be heard only when an appeal was heard. By the addition of sub-rule (4) the rigor of the law has been relaxed, but as has been pointed out in Abduliamiya Hamdumiya v. Mahomedmiya Gulam Hussein (3) (I. L. R. 1949 Bom. 263) by Chagla, C. J. , it has been relaxed only to this extent, namely, where the appeal is withdrawn or where the appeal is dismissed for default. The same view had been taken in Purushottamdas Sakal Chand v. Dev Karan (4) (A. I. R. 1939 Nag. 39) and the principle was followed in Arjun Singh v. Matukdhari Singh (5) (A. I. R. 1955 Patna 391) and the Municipal Council, Chicacole v. Sripada Satyanarayan Sharam (6) [1947 (11) M. L. J. 339]. There is no scope for application of the principle of ejusdem generis in Order 41, rule 22 (4) of the Code. On the face of it the sub-rule is self-contained. It may be that in some cases hardship will result but the clear wordings of the sub-rule must be given effect to. There is no reason to think that the sub-rule was not intended to be exhaustive. Nor can it be argued successfully that a default is tantamount to abatement. The connotations are altogether distinct, and it will be futile to equate 'default' with 'abatement', although time might be granted in certain cases to bring the representatives of the deceased on record. But failure to substitute the heirs of the deceased cannot amount, in the opinion of this court, to any default in the true sense of the term. The contention of the learned Advocate for the cross-objector cannot, therefore, be accepted. In the result, the cross-objection fails and is dismissed. There will be no order as to costs.