TARA WATI AND OTHERS Vs. SUMAN AND OTHERS

JUDGEMENT

(1.) Respondent No.12 is duly served, however, there is no appearance on their behalf, hence proceeded against exparte.

(2.) In this appeal, an application registered as CMP No.8 of 2018 has been filed under Order 1 Rule 10 CPC for deletion of the name of respondent No.10, who has expired on 22013 i.e. during the pendency of the appeal in the lower appellate Court. The application is supported by death certificate Annexure A-1. The record available, at this stage, reveals that deceased respondent No.10 (defendant No.11 in the trial Court) has not only contested the suit but also the appeal in learned lower appellate Court. The appeal, however, came to be decided without taking note of her death and substitution of her legal representatives as well as deciding the question of abatement of the proceedings, if any.

(3.) As a matter of fact, on the death of respondent-defendant Sheela Devi and for want of requisite steps, the appeal before learned lower appellate Court stood abated automatically, however, only qua deceased respondent 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 Sheela Devi went unnoticed and learned lower appellate Court has decided the appeal without substitution of her 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 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.