GANPAT RAM Vs. VISHNU DUTT ETC

JUDGEMENT

(1.) Ganpat Ram, plaintiff-petitioner, filed this suit against Vishnu Dutt and 12 more persons giving rise to this revision petition for possession of the suit land claiming himself to be the sole heir of Harphool deceased. One of the defendants was Molar son of Ravi Dutt. The suit was decreed by the trial Court. In the appeal filed against that decree, one of the grounds urged was that the said Molar defendant had died during the pendency of the suit and his legal representatives having been not brought on the record, the suit had abated. The appellate Court in view of this averment set aside the said decree and remanded the case with the direction that the plaintiff may move an application for setting aside the abatement in the trial Court. Consequently, the plaintiff moved a composite application under rules 4 and 9 of Order 22, Civil Procedure Code (hereinafter called the Code) on June 15, 1971. It was averred in the first instance that one of the legal representatives Smt. Godawari was already on the record and there was, therefore, no question of abatement of the suit and that the only other legal representative Jagdish son of the deceased may also be impleaded as defendant. It was further averred in the application that the plaintiff being resident of Rajasthan could not know about the death of the said defendant, that the limitation may be condoned and that the legal representative be brought on the record. This application was tried as an application under Order 22, rule 9 of the Code which is apparent from the following issues framed by the trial Court :-

(2.) After recording the evidence of the parti is, the trial Court held that there was no ground for condoning the delay and dismissed the application vide judgment dated December 14, 1973. By that very judgment, the trial Court also dismissed the suit as having abated in toto. Aggrieved by the judgment and decree, the plaintiff filed the appeal which was dismissed as incomplete by the learned Additional District Judge, Karnal, vide judgment dated July 24, 1976 on the ground that the impugned judgment was only an order dismissing the application under Order 22, rule 4 of the Code. Still dissatisfied the plaintiff has come up in this revision.

(3.) As already noticed above, the application filed by the plaintiff was a composite application under rules 4 and 9 of the Order 22 but was treated as an application under rule 9 only and decided as such. According to the view of this Court, the application filed under rule 4 after the period for impleading the legal representative has expired can be treated as one for setting aside the abatement under rule 9 and disposed of as such. No argument was advanced by the defendants in the trial Court that the application could not be so treated. In the lower appellate Court, no doubt, the learned counsel for the plaintiff primarily relied on the fact that one of the intermeddlers with the property of the deceased could be treated as the legal representative of the deceased who was already on the record. But he also urged that the said application could be treated as one under rule 9, Order 22 of the Code. In any case, the trial Court had passed the order under rule 9 and, therefore, the appeal was competent against that judgment. That apart, by the said judgment, the trial Court not only refused to set aside the abatement but also dismissed the suit as having abated in toto. It was, therefore, a composite judgment which was followed by a decree. There cannot be two opinions on this matter that an appeal would be competent against the judgment and decree whereby, apart from dismissing the application for setting aside the abatement for bringing on record the legal representatives of the deceased, the suit is also dismissed having become incompetent against the remaining defendants, which is sometimes loosely described as total abatement of the suit. Looked at from any point of view, the conclusion is irresistible that the learned Additional District Judge illegally refused to entertain the appeal and dismiss it as incompetent.