PUNJAB STATE Vs. TARSEM SINGH

JUDGEMENT

(1.) The plaintiff-respondent Tarsem Singh and others filed a suit for declaration to the effect that they were owners-in-possession of the suit land, etc. The trial Court decreed the said suit on 2nd November, 1982. One of the plaintiffs namely Udham Singh, son of Lehnu Singh died on 20th December, 1982, i.e., after the decision of the trial Court. An appeal was filed by the defendants-State of Punjab on 3rd January, 1983, whereby the said Udham Singh, deceased, was made a party as such. During the pendency of the appeal, factum of the death of Udham Singh was brought to the notice of the defendant-State on 22nd February, 1983. However, since no death certificate was filed by the plaintiffs, necessary application for making the legal representatives of the deceased as parties to the appeal could not be filed. The death certificate was filed on 18th July, 1984.

(2.) There is an application dated 5th May, 1984, which was filed on behalf of the defendant-State purporting to be under Order 16, Rule 10/Order, R. 17, read with Section 151, for amendment of the Written Statement. However, there was no such plea for adding the legal representatives of the deceased-plaintiff as respondent to the appeal. The plaintiff-respondents moved an application dated 8th May, 1984, that since the appeal had been filed against the dead person the same was incompetent and liable to be dismissed. As observed earlier, since the death certificate was not filed till then, no specific orders could be passed. By virtue of the order under appeal, the learned Additional District Judge dismissed the appeal as not maintainable because it could not proceed in the absence of the legal representatives of the deceased-plaintiff Udham Singh.

(3.) The learned counsel for the State-appellant submitted that after the amendment of Order 22 R.4, C.P.C., the question of abatement did not arise, and it was the duty of the respondents to bring the legal representatives of the deceased-plaintiffs on record.