GHANSARA SINGH ETC. Vs. SMT. AJUDHIA ETC.

JUDGEMENT

(1.) These are two civil miscellaneous petitions, and since a common question of law and fact arises, both can be disposed of by a single judgment. C.M.P. (Main) No. 15 of 1971 is filed by Ghansara and others Respondents in Regular Second Appeal No. 93 of 1968 under clauses 3 and 10 of the Letters Patent for the necessary leave to file letters -patent appeal against the judgment of this Court dated 19 -5 -1971. The other civil miscellaneous petition is No. 661 of 1971 which is filed by the Appellants Shrimati Ajudhia and others essentially under Order 47, Rule 1 read with Rule 3 of the Code of Civil Procedure for review of the aforesaid judgment of this Court. The matter arises in this way.

(2.) The Plaintiffs Lachhi Ram and others filed a suit for permanent injunction against the Defendants Ghansara and other, and the suit related to a certain land in Palampur tehsil over which the Plaintiffs claimed a right of pasturage, while the said right was denied by the Defendants. The trial Court decreed the suit, while the first appellate Court dismissed the same. Accordingly the Plaintiffs Lachhi Ram and others came in second appeal which is R.S.A. No. 93 of 1968. This appeal was decided on 19 -5 -1971 and the case was remanded for reframing of issues and for fresh decision on merit. Against that order Respondents Ghansara and others have filed an application for leave to file a letters -patent appeal, while the Appellants have filed the other miscellaneous petition for review of that judgment under Order 47, Rule 3 of the Code of Civil Procedure. A civil miscellaneous petition No. 343 of 1971 was filed by the Appellants on 17 -6 -1971 alleging that Lachhi Ram Appellant died on 9 -4 -1971 although the fact regarding his death was not known to either party. The appeal was decided on 19 -5 -1971 and the remand order was made against a dead person. Hence in C.M.P. No. 343 of 1971 a request was made by the Appellants that legal representatives of Lachhi Ram be brought on the record. These legal representatives were Roshan Lal and others. This application was not opposed by the Respondents and was allowed on 7 -11 -1973. Roshan Lal and others were brought on the record as legal representatives, on 5 -7 -1971 C.M.P. (Main) No. 15 of 1971 for permission to file letters -patent appeal was preferred by the Respondents. Thereafter on 28 -10 -1961 C.M.P. No. 661 of 1971 for review of that judgment was filed by the Appellants. The allegation made was that Lachhi Ram died and the remand order has been made against a dead person and hence the judgment need be reviewed. It appears Roshan Lal too has died, and C.M.P. No. 336 of 1974 was moved on 10 -4 -1974 for bringing on the record the legal representatives of Roshan Lal. This petition was allowed on 8 -5 -1974 and Ajudhia and others were brought on record as legal representatives of Roshan Lal. Thus it appears, Ajudhia and others are the Appellants while Ghansara and others are the Respondents.

(3.) It is abundantly clear that the remand order has been made against a dead person. The fact regarding death was not known to the Appellants or to the Respondents. A question arises, whether this would be a sufficient cause for reviewing the judgment made by this Court on 19 -5 -1971. In my opinion, this should be a sufficient cause under Order 47, Rule 1 as well as under Order 47, Rule 4. There is a mistake or error apparent on the face of the record. At any rate, there was a sufficient reason to set aside the judgment. It is obviously true that a judgment passed against a dead person was a nullity. The learned Counsel for the Appellants wanted to adhere to the judgment and for that purpose relied on Abdul Aziz and Ors. v/s. Lakhmi Chandra Mujumdar and Ors., A.I.R. 1923 Cal 676. In that case too the appeal was ordered for re -hearing and the judgment against a dead person was not retained as such, although an observation was made that the judgment in appeal may not be held to be a nullity. At any rate, re -hearing was ordered, and a similar order is required in the present case.