PRABHU DAYAL Vs. SMT. KANTA DEVI AND OTHERS

JUDGEMENT

(1.) Prabhu Dayal and Peera Mal were two brothers and when Peera Mal sold his share to Smt. Kanta Devi a dispute between the parties arose. Prabhu Dayal filed a suit for presumption. The trial court dismissed his suit on 28th Oct., 1980. Against this, Prabhu Dayal preferred the appeal in which the present order is being passed.

(2.) During the pendency of this appeal, Both Peeramal and Prabhudayal died. Peera Mal respondent died on 17th June, 1991 while the appellant Prabhu Dayal died on 16th Oct., 1991. An application for substitution of the legal representatives of the appellant Prabhu Dayal was moved on 13th Jan., 1992 and the same was accepted as it was within the 90 days of the death of the appellant Prabhu Dayal.

(3.) Thereafter the respondent Kanta Devi moved an application on 4th May, 1992 stating that the respondent Peera Mal died on 17th June, 1991, but no application had been made for bringing the.legal representatives of Peera Mal on record. It was prayed that the appeal which has ',.abated, automatically should be dismissed. The legal representatives of appellant Prabhu Dayal filed a reply to this application stating that during his life time, Prabhu Dayal himself was looking after the trial of the case and that the legal representatives were not aware of the proceedings or the stage of the litigation. Rajendra Kumar, son of Prabhu.Dayal came to know of this appeal only when he was informed by his counsel, about the pendency of the appeal etc. Upon this, Rajendra Kumar informed the counsel about the death of Prabhu Dayal and also supplied the particulars of his legal representatives. For some time, the appellant Rajendra Kumar could not contact his counsel as he was on touring duties and had been out of station for Surat and on his return, on 15th Aug., 1992 he met his counsel and came to know that Peera Mal was also a party and then he took immediate steps for filing the application for bringing the legal representatives of Peera Mal on record. In the alternative, it is submitted that the appeal was filed against Peera Mal and his daughter-in-law Kanta Devi and when Peera Mal sold his property in favour of Kanta Devi the appeal can proceed against Kanta Devi and it cannot be said to have abated. On 17th Aug., 1992, appellant Rajendra Kumar (L.R.) filed an application for bringing the legal representatives of Peera Mal on record. The said application was filed giving the names of the legal representatives and in yet another application a prayer was made that the application should be allowed and the abatement of the appeal be set aside. Reasons have been given as to why the application could not be made in time.