KAUSHALYA DEVI Vs. RAMESHWAR

JUDGEMENT

(1.) Whether the learned first appellate Court had no jurisdiction to decide the question of abatement of the suit on the death of the plaintiff - Shri Jagat Ram, who died on 6/6/1998 when the suit was pending before the learned trial Court?

(2.) Whether due to the wrongful dismissal of the application under Order VI Rule 17 CPC filed by the appellant before the learned first appellate Court, . seeking therein the permission to amend the grounds of appeal for raising the point of abatement on account of the death of the plaintiff - Shri Jagat Ram, during the pendency of the case before the learned trial Court, grave prejudice has been caused to the appellant/defendant. 2. Looking to the nature of order, I propose to pass, it is not at all necessary to refer to the relevant facts save and except to observe that Jagat Ram one of the plaintiffs died on 6/6/1998 when the suit was pending adjudication before the learned trial Court. It is further not in dispute that the appellants/defendants had filed an application under Order VI Rule 17 CPC before the learned first Appellate Court seeking therein the permission to amend the grounds of appeal for raising the point of abatement on account of the death of the plaintiff Jagat Ram before the trial Court. However, the learned first Appellate Court dismissed this application vide order dtd. 26/5/2005 by holding that the suit had been filed by as many as 12 plaintiffs including Jagat Ram and it was a simplicitor suit for permanent prohibitory injunction, therefore, the suit could not have abated in toto/whole, even if the LRs of the deceased had not been brought on record within the period of limitation and, therefore, the suit had to proceed in accordance with law despite the death of Jagat Ram.

(3.) What appears to have been conveniently if forgotten by the learned first Appellate Court is that it is more than settled the legal proposition that decree in favour or against a dead person is a nullity as was held by a Bench of three Hon'ble Judges of the Hon'ble Supreme Court in Kishun alias Ram Kishun (dead) through L.Rs.vs. Bihari (D) by L.Rs.AIR 2005 SC 3799.