LOBI DEI Vs. KUBERA BALABANTARA

JUDGEMENT

(1.) THIS revision at the instance of defendants 1 (kha) and 2 is against the order of the Munsif, Puri, dated 6 -7 -1983 passed in OS. No. 35 of 1975 -1 allowing substitution of the legal representatives of plaintiff No. 2. The facts relevant for the purposes of this revision are as follows: The plaintiffs in the aforesaid suit prayed for declaration of title, confirmation of possession and for injunction against the defendants in respect of certain trees standing over the suit plot. The suit was dismissed on contest by the learned trial Court by his judgment dated 12 -2 -1979. The unsuccessful plaintiff preferred Title Appeal No. 33/29 of 1982/1979 and the appellate Court disposed of the appeal on 1 -10 -1982 remanding the same to the trial Court with a direction to give findings afresh on all the issues, taking into consideration the entire evidence on record after appointment of a fresh commissioner and taking evidence, if any, adduced by both the parties after the report of the commissioner is accepted. On 16 -4 -1983 during the pendency of the suit in the trial Court after remand the plaintiff No, 1 came up with an application praying for substitution of the legal representatives of deceased defendant No. 3 along with petitions for setting aside abatement and for condonation of delay. As per the averments in the said petitions, defendant No 3 died on 1 -7 -1982 when the suit was pending in appeal and subsequent thereto the appeal was disposed of as aforesaid, as the appellate Court was not informed about his death. The reason for delay in praying for substitution has been explained by saying that defendant No. 3 died at a different village which fact was not known to the plaintiff No. 1 till 14 -3 1983 when the commissioner deputed to the spot submitted a report mentioning about the death of defendant No. 3 and giving the date of death.

(2.) ON 16 -4 -1983, the date on which plaintiff No. 1 filed the application for substitution, another application was filed by the wife, three sons and one daughter of deceased -plaintiff No. 2 under Order 22, Rule 9 read with Order 1, Rule 13, CPC, to set aside the order of abatement passed against plaintiff No. 2 and to substitute them or implead them in the place of plaintiff No. 2. They also filed a petition Under Section 5 of the Indian Limitation Act to condone the delay in filing this petition. The learned Munsif after hearing the parties refused the substitution prayed for in respect of the deceased -defendant No. 3 on the ground that the death having taken place during the pendency of the appeal, the trial Court would have no jurisdiction to set aside the abatement and allow the substitution. So far as the power of the legal representatives of deceased -plaintiff No 2 is concerned, the learned Munsif allowed their application relying on the decision of the Supreme Court reported in AIR 1983 S.C. 355 (Bhagwan Swaroop and Ors. v. Mool Chand and others) wherein it has been decided that a Court can allow the legal representatives of the plaintiff to be impleaded as parties under Order 1, Rule 10, CPC, by taking resort to the general provisions of the Civil Procedure Code even though there has been no substitution under Order 22, Rule A, CPC. It is against this order that this revision has been filed.

(3.) THE proper procedure to be adopted by a Court in such a situation has been indicated in the decisions reported in AIR 1972 Keral. 116 (Chovveri Abduila v. Erancherry Illath Darnodaran Namboodiri and others) which relies upon the decision of the same Court reported in AIR 1967 Kerala 135 (Meenakshy Pillavathiri Amma v. Lakshmi Amma) and the decision of Patna High Court reported in AIR 1958 Patna 278 (Bhagwat Prasad v. Bansi Mahton) and that of Calcutta High Court reported in AIR 1923 Cal 676 (Abdul Aziz v. Lakshmi Chandra Majumdar). In identical situation Their Lordships have held that where one of the parties to the appeal dies, which fact not being brought to the notice of the Court, the appeal was allowed by setting aside the decision of the trial Court and remanding the case for fresh disposal and it was brought to the notice of the trial Court after remand that the death had occurred during the pendency of the appeal, the proper procedure for the trial Court is to send the case to the appellate Court with a report who should deal with the question of setting aside abatement and substitution/impletion of the legal representatives in place of the deceased party whereafter the matter must be sent back to the trial Court for fresh disposal in accordance with the order of remand. The learned Munsif having not done, that the order of impletion of legal representatives of plaintiff No. 2 must be set aside.