MADAN LAL Vs. BALBIR SINGH AND OTHERS

JUDGEMENT

(1.) Challenge herein is to the judgment and decree dated 6th November, 2015, passed by learned Additional District Judge, Sirmaur District at Nahan, Camp at Paonta Sahib, in Civil Appeal No. 0000089 N/13 of 2014 whereby the appeal stands dismissed and the judgment and decree passed by learned Civil Judge (Junior Division), Court No.2, Paonta Sahib, in Civil Suit No.157/1 of 2008, upheld.

(2.) It is worthwhile to mention that one of the respondents, i.e., respondent No. 2, Sh. Sher Singh has expired on 28th January, 2015 during the pendency of the appeal in the lower appellate Court. The appellant/defendant has failed to bring on record his legal representatives. As a matter of fact, on his death and for want of requisite steps, the appeal before learned lower appellate Court stood abated automatically, however, only qua deceased plaintiff-respondent No. 2 or as a whole is a question, could have been considered and adjudicated by the lower appellate Court. Anyhow, the factum of death of deceased plaintiff-respondent No.2 went unnoticed and learned lower appellate Court has decided the appeal without substitution of his legal representatives and deciding the question of abatement of the appeal. In view of the law laid down by this Court, as and when the question of abatement of the suit or appeal arises, the same can only be gone into and decided by the Court where the suit or appeal was pending at the time of death of a party. It has been held so by this Court in Jaswant Singh v. State of Himachal Pradesh and others, 2015 2 ShimLC 674 by applying the ratio of the judgments rendered by Co-ordinate Benches of this Court in Jagan Nath and others v. Ishwari Devi, 1988 2 ShimLC 273 and Karam Chand and others v. Bakshi Ram and others, 2002 1 ShimLC 9.

(3.) On the death of a party to the suit or appeal and for want of consequential steps, suit/appeal abates because abatement is automatic after the expiry of the period prescribed for filing an application to set aside the same or substitution of legal representatives of deceased party. In the case in hand, plaintiff-respondent No. 2 had expired on 28th January, 2015 during the pendency of the appeal in the lower appellate Court. The limitation prescribed for taking consequential steps and setting aside the abatement stands expired long back.