SARASWATI GANDANE Vs. MUKTABATI BASRA

JUDGEMENT

(1.) THIS present A.H.O. has been preferred by the plaintiff challenging the decision of the Hon'ble Single Judge dated 17 -11 -1987 passed in Misc. Case Nos. 52, 53 and 54 of 1987 arising out of First Appeal No. 175/75 rejecting the applications for substitution of the legal representatives of deceased Respondents Nos. 1, 3, and 4 of the First Appeal and setting aside the abatement because of the late filing of the said substitution petitions. The Hon'ble Single Judge rejected the petitions and observed that Respondent No. 1 died sometime in the year 1984, and Respondent No. 3 died sometime in 1983. As far as Respondent No. 4 is concerned, she died, according to the Hon'ble Single Judge, leaving no legal heir and her name was only to be expunged from the records. In the impugned order, the Court had observed that the actual date of death of the aforesaid respondents was not mentioned. The counter that was filed to such application also did not give the actual dates of their death and the ground taken in the petition for substitution which was made by the appellant was that she was an indigent person and she came to Know about the death of the aforesaid respondents in December, 1986 which was strongly controverted in the counter affidavit wherein it was stated that the appellant being a noice of the respondents has knowledge of the death as she attended the funeral ceremonies.

(2.) THE A.H.O. was admitted by the order dated 5 -4 -1988 subject to the question of maintainability, which was required to be considered first before the appeal was to be taken up on merits. When the matter was subjudice in this Court by a memo, it was brought to the notice of this Court that the name of Respondent No. 4 was deleted in the trial Court on 10 -3 -1973 and accordingly a prayer was made to the Court that the name of respondent No. 4 be delated at the risk of the appellant. In the said memo it was also indicated that the name of Respondent No 13 is Santa alias Rambha Gandhani wife of Thama Ganda and the counsel for the appellant was permitted by order dated 19 -9 -1984 to make necessary corrections in the cause title of the A.HO. The maintainability of the A.H.O. is to be decided first as stated above and by order dated 2 -4 -1992 this Court directed that the argument on this point must await till the decision of the Full Bench in A.H.O No. 23/86 where maintainability of the A.H.O. was being considered. In the present case, the grounds of objection to the maintainability of the A.H.O. was that the order passed by the Hon'ble Single Judge rejecting the petition for substitution and refusing to set aside the abatement was not 'judgment' so as to maintain a Letter's Patent Appeal under Clause 10 and the Letters Patent being a special law, the provisions of appeal against the orders as contained in Rule 43 (1) of the Code of Civil Procedure did not apply to an A.H 0. against such an order. The judgment in AH O. No. 23/86 (Barendra alias Birendra Kumar Majhi (dead) and after him Ramani Majhi and Ors. v. Smt. Sitamani Bewa and after her Surendra Kumar Majhi and Ors.) was delivered on 7 -8 -1992 by the Full Bench In the said case the Full Bench was called upon to decide whether the Letters Patent Appeal was maintainable in view of Section 104(2) of the Code of Civil Procedure. The two decisions of this Court namely Smt. Sashikala Padhi v. Smt. Hiron Ghosh and Ors. reported in 71 (1991) CLT 197 and (Sukuri Dibya and Ors. v. Hemalata Panda and Ors.), reported in 32 (1990) OJD 431 (Civil) since held different views, the question came up for consideration in the Full Bench. It is needless to say that Sashikala's case decided without taking note of the judgment in Sukuri Dibya and Ors. v. Hemalata Panda and Ors., reported in 32 (1930) OJD 431 (Civil). The point for determination before the Full Bench was whether Section 104(2) of the Code of Civil Procedure barred an appeal filed under Clause 10 of the Letters Patent. Section 104(2) of the Code provides that 'No appeal shall lie from any order passed in appeal under this section.' The Full Bench while deciding this point took notice of the case of Shah Babulal Khimji v. Jayaban D. Kania, reported in AIR 1981 SC 1736 and ultimately came to hold the decision in the earlier case namely Sukuri Dibya v. Hemalata Panda, 32 (1990) OJD 431 (Civil) laid down the correct Iaw and overruled the decision in Smt. Sashikala Padhi v. Smt Hiron Ghosh 271 (1991) CLT 197. In that case the question was raised for consideration was if the letters patent appeal was hit by Section 104(2) of the CPC because the order which was challenged was not an appellate order but was an initial order passed for the first time in appeal by the Hon'ble Single Judge. The Full Bench made certain references in paras -7 and 9 of the decision which are relevant for the purposes, In para -7 referring to the judgment of Fazal Ali, J. (speaking for self and Veradarajan, J.) concluded on the submission of Sri Sorabji, who was appearing for the appellant before the Hon'ble Supreme Court in the following orders :

(3.) I agree.