GURDIAL SINGH Vs. RATTAN SINGH

JUDGEMENT

(1.) The brief facts of the case are that Rattan Singh, plaintiff-respondent, filed a suit on 28th February, 1972, for permanent injunction to the effect that the defendants be restrained from further construction of the Kotha at the site in suit and also for mandatory injunction to the effect that the construction of Kotha by the defendants be removed and the status quo be restored. This suit was decreed on 16th February, 1973 by the trial Court against Giani Kartar Singh, proprietor, Giani Goods Transport Company and Gurdial Singh. Both the defendants filed an appeal before the Additional District Judge, Jullundur, against the said decree of the trial Court. During the pendency of the said appeal, Giani Kartar Singh, one of the appellants, died. An application under Order 22 Rule 3 of the Code of Civil Procedure, was filed on behalf of Smt. Shanti Devi and Surinder Singh, alleging that Kartar Singh deceased was the husband of smt. Shanti Devi and father of Surinder Singh had he having died on June 26, 1973, they be brought on record as his legal representatives. The said application was contested by the plaintiff-respondent. One of the issues framed by the Court was whether the application was barred by time. As the said legal representatives did not lead any evidence, the application was dismissed, and, consequently, under Order 22 Rule 3(2) the appeal abated so far as the deceased appellant was concerned. Simultaneously the question as to the effect of the abatement on the appeal qua Gurdial Singh, was taken up for consideration and relying upon certain authorities of the Supreme Court, it was held that the appeal has abated as a whole. This order was passed on 15th April, 1974.

(2.) On 23rd April, 1974, the said legal representatives of the deceased Giani Kartar Singh and the surviving appellant Gurdial Singh, filed an application under Order 22 Rule 9 read with Section 151 of the Code of Civil Procedure, for setting aside the abatement. An objection to its maintainability was taken by the plaintiff-respondent. Consequently, an issue to this effect was framed by the learned Senior Subordinate Judge, with enhanced appellate powers, and he vide his order dated 11th January, 1977, held that this application under Order 22 Rule 9 of the Code of Civil Procedure, is not maintainable. The view taken by him was that this rule does not apply to those cases where the Court has already dismissed an application under Order 22 Rule 3 of the Code of Civil Procedure, because that order amounts to a decree which could be appealed against as such. In support of this proposition, he relied upon Mt. Laxmi V. Ganpat,1921 AIR(Nag) 23 and Arjun and others V. Balwant,1954 AIR(MB) 45. The present appeal has been filed against this order dismissing the application under Order 22 Rule 9 of the Code of Civil Procedure. Earlier this appeal came up for hearing before S.P. Goyal, J., but his Lordship was of the opinion that there is some conflict in two Single Bench decisions of the Lahore High Court, reported as General Trading Company, Kahuta V. Nihal Singh and others, 1925 AIR(Lah) 208 and Nand Ram V. Mt. Ralli and others,1927 AIR(Lah) 865(1 , and the question involved being such as is likely to arise frequently, his Lordships referred the case to be settled by a Division Bench.

(3.) The main contention of the learned counsel for the appellants is that the application under Order 22 Rule 9 of the Code of Civil Procedure is maintainable on behalf of the surviving appellant, i.e. Gurdian Singh, as well as on behalf of the legal representatives of the deceased appellant Kartar Singh. For this proposition, he relied upon Nand Ram s case and Tirithdas Keshavdas and another V. Dr. Harchandrai and others, 1940 AIR(Sind) 137 On the other hand, the learned counsel for the respondent cited Niranjan Nath V. Afzal Hussain,1916 AIR(Lah) 245 (Full Bench); Ram Sarup V. Moti Ram and others,1920 AIR(Lah) 8 General Trading Company's case and Arjan's case and also a Full Bench Decision of the Allahabad High Court Habibur Rahman Khan V. Pooran and others, 1966 AIR(All) 353 We have gone through the said authorities and also the relevant provisions of the Code of Civil Procedure. Order 22 Rule 3 and Order 22 Rule 9 of the Code of Civil Procedure read as under :-