BHAGWAN SAHAI Vs. MANGLA

JUDGEMENT

(1.) THESE two appeals which arose from the facts stated below shall be disposed of by this single judgment. The plaintiffs Bhagwan Sahai and others including Hardeva the deceased filed a suit against Mangla and others in the court of the Sub-divisional Officer, Dausa with the averments that they were khatedar tenants of the land in dispute and were wrongfully dispossessed by the defendants, that in a proceeding under Sec. 145 Cr. P. C. the criminal court declared the defendants to be in possession during the crucial period and directed the plaintiff to have their right and status determined by a competent court. It was on this account that the present action was brought by the plaintiff. The suit was denied by the defendants who asserted that they were the tenants of the land in dispute and that the plaintiff had nothing to do with it. The trial court after framing necessary issues recorded the evidence of the parties and in the result decreed the plaintiff's suit. During the course of the proceedings before the trial court decreed the suit, Hardeva one of the plaintiffs had died. The suit, however, proceeded with as in the opinion of the trial court Bhagwan Sahai one of the plaintiffs was a legal representative of the deceased Hardev and since he was already on record it was not necessary to implead Smt. Sukhbai daughter of the deceased Hardev as his legal representative. Against the decree of the trial court, an appeal was filed by the defendants before the learned Additional Commissioner. One of their contentions was that the deceased Hardev was survived by his daughter who was entitled to succeed his tenancy rights under the Hindu Succession Act and that the right to sue did not survive on Bhagwan Sahai or the remaining plaintiffs alone. It was pointed out that an application under Rule 22, Rule 3 was necessary to implead Mst. Sukhbai as a legal representative of the deceased Hardev and as no such application was made within the prescribed period of limitation the suit abated as a whole. The argument was that the lower court completely misconceived that it was a case governed by Order 22, Rule 2 and not Order 22 Rule 3. The lower appellate court examined this contention in the light of the provisions of Order 22 Rule 2 and 3 held that this contention was fully justified. In its opinion Bhagwan Sahai alone could not be regarded as a legal representative of the deceased Hardeva and that without impleading Sukhbai the daughter of the deceased the present suit could hot have been decreed by the trial court. In the result the appellate court held that for non-compliance with the provisions of Order 22, Rule 3 the entire suit must abate and the decree given by the trial court was set aside on 23. 11. 59. On 3. 12. 59 an application was made by Mst. Sukhbai in the court of the Additional Commissioner in which she stated that she was the legal representative of the deceased Hardeva but owing to her ignorance and want of proper advise she could not make an application in time for being impleaded as on of the plaintiffs. She prayed that the order of abatement given by the learned court be set aside under the provisions of Order 22 Rule 9. A question arose before the learned lower court whether he was competent to entertain this application and dispose it of or that an application of this nature could be decided by the trial court before whom the abatement owing to the death of Hardev4 and non-impleadment of the legal representatives within time took place. The lower appellate court held that the matter was very much within bis jurisdiction and that he could dispose of it himself. Both the plaintiff and the defendants have come up to in appeal before us against the aforesaid orders of the learned Additional Commissioner dated 23. 11. 59 and 26. 3. 60 respectively. The case was argued at some length by the counsel for both the parties. The first point which calls for determination is whether or not Mst. Sukhbai the daughter of the deceased Hardeva was his legal representative and whether or not the suit could be proceeded with without bringing her on record. The term 'legal representative, has been defined in Sec. 2 (11) of the Civil Procedure Code to mean a person who in law represents the estate of a deceased person and includes any parson who intermeddles with the estate of the deceased and where a party sues in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Mst. Sukhbai is admittedly the daughter of the deceased and entitled to succeed him as a heir to his tenancy rights according to the personal law, namely Hindu Succession Act. Bhagwan Sahai may be a person intermeddling with the estate of the deceased but neither he nor the other plaintiffs could be regarded as persons on whom the right to sue survived to the exclusion of Mst. Sukhbai the real daughter of the deceased. In 1948 R. D. page 448 it was observed that where a respondent dies leaving several legal heirs all of them should be brought on the record, the impleading of the heirs is not sufficient and an appeal shall abate if all the heirs are not impleaded. Again, in 1950 R. D. page 44 it was held that in a suit under Sec. 183 of the U. P. Tenancy Act which provides remedy to a tenant for wrongful ejectment that all the heirs of a deceased party should be brought on record and failure to implead any one of them would result in abatement of the suit. In this connection we have also examined the provisions of O. 22, R. 2 & 3. O. 22, R. 2 lays down that where the right to sue survives to the surviving plaintiff or plaintiffs alone the court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs. The word 'alone' in this rule means exclusively, that is to the exclusion of other persons, that is without joining them. In such a case no application is necessary for making the necessary entry under this rule. It is the duty of the court to do so, i. e. , score out the name of the deceased and allow the suit to proceed with in the name of the surviving plaintiff or plaintiffs. The trial court however, held that as Bhagwan Sahai and the other plaintiffs represented the deceased Hardeva the right to sue survived on them and a question of abatement did not arise at all. It did not apply its mind to the provisions of Order 22, Rule 3 in order to determine whether Mst. Sukhbai was also a legal representative of the deceased or not. The lower appellate court in out opinion approached the controversy with due regard to the provisions of Order 22, Rule 3. According to this provision all the legal representatives should be brought on record and failure to do so within the prescribed period of limitation would result in the abatement of the suit altogether. We, therefore, hold that the decision dated 23. 11. 59 given by the lower appellate court was perfectly justified. As regards the other appeal whether an application for setting aside the abatement under O. 22, R. 9 could or could not be heard by the Addl. Commissioner a reference may be made to A. I. R. 1956 Patna page 373. It was observed that where the application for setting aside abatement and substituting the heirs of the dead respondent is made in second appeal such application must be dealt with by the court in which abatement occurred. The proper procedure to follow for the second appellate court is to set aside the decree of the court of appeal below on the ground that it was passed in respect of a dead person and to remand the appeal to the court of appeal below in order to deal with the application for setting aside abatement and substituting the heirs of the dead respondents. This rule of law clearly means that the proceedings for setting aside abatement under Order 22 Rule 9 shall take place in the court where the abatement actually took place. In the present case the deceased had died during the pendency of the suit in the trial court and if an application is now made for setting aside the abatement it should be tried and heard by the trial court before whom abatement had taken place and not the lower appellate court. Taking all these facts into consideration we direct that the appeal filed against the order of the Additional Commissioner dated 23. 11. 59 shall be dismissed and the appeal filed against the order of the same court dated 26. 3. 60 shall be allowed. The result will be that the case shall go back to trial court for giving its decision on the application of Mst. Sukhbai for setting aside the abatement in terms of Order 22 Rule 9 C. P. C. .