RAMDEO JHA Vs. CHANDAR THAKUR

JUDGEMENT

(1.) This civil revision by the plaintiffs who are respondents first party before the lower appellate court; is directed against the order dated 25th May, 1973 passed in Title Appeal No. 23 of 1968 by the Second Subordinate Judge, Muzaffarpur, holding that the appeal has not abated for non-substitution of the heirs of deceased appellant No. 1 as also respondent No. 1, and since it has come to the notice of the court that there are heirs of these deceased persons, they Should be added as parties in the appeal; the heirs of deceased appellant No. 1 as appellant and the heirs of deceased respondent No. 1 in the category of the respondents.

(2.) This revision was originally placed before a learned single Judge of this Court, who after hearing the parties reserved the judgment and ultimately referred the case to a Division Bench by his order dated 4th April 1980. The learned single Judge noticed in his order of reference the latest case of the Supreme Court in the case of N. Jayaram Reddi v. The Revenue Divisional Officer (AIR 1979 SC 1393) wherein it has been said that Rules 3 and 4 read with Rule 11 of Order XXII of the Code of Civil Procedure are based on the principle of audi alteram partem and the principle that underlies these provisions is that the legal representative of a deceased, who may be affected by the decision, must be afforded an opprotunity of being heard before any legal liability is fastened upon him, but in view of the Bench Decision of this Court in Parhlad Jha v. Sonelal (AIR 1974 Pat 338) which according to the learned single Judge, supports the contention raised by the petitioners, thought it proper to refer the case to a Division Bench. That is how, it has been placed before us for hearing.

(3.) In order to appreciate the points it will be necessary to give some salient facts. A suit was filed in the court of the Munsif, for declaration of plaintiffs' title and for confirmation of possession. The suit was decreed. Accordingly an appeal was filed by the defendants first party which is pending decision in the lower appellate court. During the pendency of the appeal, appellant No. 1 died on 3rd April 1970 and an application for substitution of the heirs of the aforesaid deceased was filed within lime, namely, on 1st July 1970. It may be stated here that two sons of appellant No. 1 are already on record as appellants Nos. 2 and 3 and the heirs sought to be substituted were Ihe widow and daughters. The said application unfortunately stood rejected for non-compliance of the lower appellate court's peremptory order for service of a copy upon the other side. This order of rejection is dated 22-6-1971. It further appears that during the pendency of the appeal, plaintiff-respondent No. J also died. According to the petitioners, he died on 25-10-1970 whereas according to the opposite party he died on 7-9-1970. The substitution petition was filed by the opposite party on 9-1-1971. It was alleged therein that two of the heirs, namely, the two sons of the deceased respondent No. 1 are already on record as respondents Nos. 3 and 4 (who are petitioners Nos. 2 and 3 before this Court), and the daughters who are sought to be substituted have relinquished their share in favour of their brothers, namely, respondents Nos. 3 and 4. A rejoinder was filed by the plaintiffs-respondents contesting the date of death as also the allegation of relinquishment of shares. It is said that thereafter the defendants appellants also filed an application to condone the delay in filing the petition dated 9th January 1971 and set aside the abatement and thereafter substitute the heirs. As the date of death of the plaintiff-respondent No. 1 was disputed evidence was taken by the lower appellate court. After hearing the parties it held that the date furnished by the plaintiffs-respondents was correct, namely, that respondent No. 1 died on 7-9-1970. The lower appellate court also disbelieved the case of relinquishment of the shares by the daughters of deceased respondent No. 1 in favour of their brothers-respondents Nos. 3 and 4. It also held that the estate of deceased respondent No. 1 is represented by the two sons already on record as respondents Nos. 3 and 4. It held further that the appeal did not abate for not bringing on record some of the heirs of deceased appellant No. 1 as two of the heirs were already on record as appellants Nos. 2 and 3, and as also in the case of deceased respondent No. 1.