BALA RAM Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The order passed on 25/07/1991 by the Additional District Judge, Nahan, Sirmaur District Camp at Solan, is under challenge in this revision petition at the behest of the plaintiffs, who were respondents in the appeal before the lower appellate court. The facts giving rise to the revision petition may be narrated.

(2.) A suit was filed by the plaintiffs-petitioners in the court of Sub Judge, Kandaghat, wherein they claimed a decree for declaration that they, along with pro forma defendants, are the owners in possession of the suit land according to the shares, as per Shajra Nasab and the entries in the revenue record as also certain mutations were illegal, against facts and had no effect on their rights and also that they along with pro forma defendants alone had got a right to get compensation in respect of the part of the suit property, which had been acquired by the State of Himachal Pradesh. After a protracted trial, the suit was decreed on 22/06/1987. The decree was passed to the following effect :

(3.) Feeling aggrieved, an appeal was preferred by the State of Himachal Pradesh. On 13/09/1990, a statement was made by the counsel for the plaintiffs that one of the plaintiffs, namely, Hans Raj, who was respondent No. 6 in the appeal had died. The Additional District Attorney, appearing for the appellant-State of Himachal Pradesh, sought adjournment to enable him to take steps for bringing on record the legal representatives. Further adjournment was sought on 13/11/1990. Steps were not taken, and again adjournment was sought on 13/12/1990, 18/01/1991 and 13/03/1991. It was on 14/03/1991 that an application was moved to bring on record the legal representatives of deceased Hans Raj. It was stated in the application that Hans Raj had died on 9/07/1990 and had left behind Smt. Saraswati, his widow and two sons Mohan Dutt and Ramesh Dutt. It was further stated in the application that the factum of death came to the knowledge of the appellant on 19/01/1991 when the information, after verification, was received from Tehsildar, Solan and the application was being made in time. In para 4 of the application, it was stated that even otherwise, if the court comes to the conclusion that the application is not within time, the same be condoned in the interests of justice and consequently a prayer was made for bringing on record the legal representatives. This application was opposed by the plaintiffs, who stated that the averments made in the same were patently wrong since the same were contrary to the record. Knowledge of the death was acquired by the appellant on 13/09/1990, when a statement was made at bar in the presence of Additional District Attorney. Even from the date of acquiring knowledge, the application had not been made within a period of 90 days. The appeal had, in fact, abated on the expiry of 90 days from the date of death and since there was no prayer for setting aside abatement, the application was liable to be dismissed and appeal deserved to be dismissed in toto.