BHAGWAT PRASAD Vs. BANSI MAHTON

JUDGEMENT

(1.) This is an application by the defendant. Two persons, namely, Chulhan Mahton and Bishnu Mahton, filed a suit against the petitioner for declaration of their title to and recovery of possession over a piece of land in the Court of the Munsif of Gaya. The suit was decreed by the trial Court, but on appeal, that decree was reversed and the suit was dismissed. Second Appeal was filed in this Court by the two plaintiffs and that was numbered as Second Appeal No. 1752 of 1950. Some time in 1950 Bishnu Mahton, one of the plaintiffs, died after the filing of the appeal. Later on, in November, 1954, Chulhan Mahton, the other plaintiff also died. No substitution was made of their heirs. The appeal was heard by me. The fact that the plaintiffs were dead was not known to the counsel of the parties and was, therefore, not brought to my notice. I allowed the second appeal and remanded the case for a fresh hearing by the Court of appeal below. In that Court, on 15th of December, 1955, the petitioner made an application that the appeal abated in the High Court as both the appellants were dead and no substitution of their heirs was made. Then, on 4th January, 1956, the opposite party filed an application for substitution of his name in place of the above plaintiffs. An objection was taken to the maintainability of this application in that Court, but the learned Additional Subordinate Judge, who heard the matter, allowed the prayer of the opposite party and passed an order for his substitution in place of the deceased plaintiffs. Against that order the present application has been filed.

(2.) It has been contended by Mr. Sharma, appearing on behalf of the petitioner, and that contention has been accepted by Mr. Parmeshwar Prasad Sinha, appearing on behalf of the opposite party, that the lower appellate Court had no jurisdiction to pass an order for substitution when the death occurred while the appeal was pending in the High Court. The proper procedure in such a case should have been that the learned Subordinate Judge should have reported the matter to this Court for such action as might be deemed necessary in the event that happened. That was the view taken by Mookerjee J. in a Bench decision of the Calcutta High Court in the case of Abdul Aziz v. Lakhmi Chandra Majumdar, 37 Cal LJ 494: (AIR 1923 Cal 676) (A). There also, during the pendency of the appeal in the High Court, one of the respondents died but owing to the ignorance no substitution of his legal representative was made. The hearing in the High Court proceeded on the assumption that the parties were properly represented on the record. The appeal was decreed and the case was remanded for reconsideration. When the case came up before the District Judge, he was informed that one of the defendants had died during the pendency of the appeal in the High Court. In these circumstances, his Lordship held that the District Judge should have reported the matter to the High Court. Relying on this decision similar order was passed by Das J. (as he then was) in (Khewan Singh v. Raja Ram, SA No. 833 of 1947 (Pat) (B) which was finally decided on 20th April, 1951. In that case the suit of the plaintiffs was dismissed by the trial court on the ground that they were not the 16 annas owners. The learned Subordinate Judge, who beard the appeal, affirmed that decree. The plaintiffs preferred a Second Appeal to this Court, namely, Second Appeal 833 of 1947. That was heard by Das J. (as he then was) on the 27th July, 1949, who set aside the order of the court below and sent the case back on remand for a fresh consideration. After the case had gone back on remand, it was brought to the notice of the Subordinate Judge that one of the appellants in Second Appeal had died on 14-6-1949, that is, before the Second Appeal was heard and the case remanded. Then an application was made before him for substitution and the learned Subordinate Judge, following the decision reported in 37 Cal LJ 494: (AIR 1923 Cal 676) (A), referred to above, reported the matter to this Court for necessary action. After hearing the parties Das J. (as he then was) recalled the case to the file of this Court, set aside the order of remand and treated the application for substitution filed in the court of appeal below as an application to this Court. It is contended by Mr. Sharma that similar order should be passed in this case. Mr. Parmeshwar Prasad Sinha concedes that that will be the proper course to be followed.

(3.) For the reasons given above, I set aside the order under revision, recall the Second Appeal No. 1752 of 1950 to the file of this Court, set aside the order of remand passed by me in that appeal and treat this application for substitution filed in the court of appeal below as an application to this Court Let necessary noticest issue for substitution. Alter the question of substitution has been heard and decided, the above Second Appeal will be heard afresh. There will be no order as to costs in this Court for this application.