NARAIN DASS Vs. DEVI RAM & OTHERS

JUDGEMENT

(1.) Rsa No. 304 of 2017 & CMP (M) No. 1297 of 2017.

(2.) On the notice issued to respondent No.3 Smt. Indra Devi, she was reported to have already expired. The appellant-plaintiff was directed to take consequential steps. He in turn has filed an application under Order 22 Rule 9 CPC read with Section 5 of the Limitation Act for substitution of her legal representatives. As per the death certificate annexed to the application, since she has expired on 15.4.2014, during the pendency of the suit in the trial Court, therefore, the question of maintainability of the application for substitution of her legal representatives and setting aside the abatement have arisen. Now taking on record the reply and rejoinder to the application, I have heard learned counsel on both sides.

(3.) The appellant has failed to bring on record the legal representatives of deceased respondent No.3 Indra Devi in the trial Court. As a matter of fact, on her death and for want of requisite steps, the suit before learned trial Court stood abated automatically, however, only qua deceased respondent No.3 or as a whole, is a question which could have been considered and adjudicated by that very Court. Anyhow, the factum of death of deceased respondent No.3 went unnoticed and learned trial Court has decided the suit without substitution of her legal representatives and deciding the question of abatement of the suit. 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 versus State of Himachal Pradesh and others, (2015) 2 ShimLC 674 while placing reliance on 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.