FAJAR BANOO Vs. RAHIM BAX

JUDGEMENT

(1.) This was a suit brought to recover possession of certain property by one Abdul Majid. During the pendency of the suit Abdul Majid died and an application for substitution under Order XXII, Rule 3, Civil Procedure Code, was made by two of his sons. At or before the hearing the defendant pointed out that Abdul Majid died leaving him surviving a third son Ahamadulla. Notwithstanding this warning the other two sons did not apply to have Ahamadulla substituted as one of the heirs of Abdul Majid, nor did Ahamadulla apply to be made a party to the suit. At the trial an issue was raised as to whether Ahamadulla was one of the legal representative of Abdul Majid, and the trial Court held that ha was not, and, proceeding to hear the suit on the merits, decided the case in favour of the plaintiffs, The defendant appealed, and it appears that at the hearing of the appeal an application was made by the appellant to adduce further evidence in support of his contention that Ahamadulla was the son of Abdul Majid. Now, the respondents did not take their stand upon the in admissibility of such evidence but applied for leave to adduce further evidence to rebut the appellants contention that Ahamadulla was one of the sons of Abdul Majid. In the circumstances obtaining in this case we do not think that it is open to the appellants now to complain that this additional evidence was given by the appellants. We have considered whether there was evidence before the lower Appellate Court upon which the learned District Judge could reasonably have arrived at the conclusion to which he came, namely, that Ahamadulla was one of the sons of Abdul Majid In our opinion, in second appeal, having regard to the evidence upon this issue of fact that was before the learned District Judge, we are unable to disturb the finding at which he arrived.

(2.) The learned District Judge dismissed the suit upon the ground that the legal representatives of Abdul Majid not having been duly substituted the suit abated under Order XXII, Rule 3, Civil Procedure Code. On behalf of the appellants it is urged that Order XXII, Rule 3 does not apply because an application for substitution was duly made by the "legal representative" of Abdul Majid within Order XXII, Rule 3. In our opinion, "legal representative" in Order XXII, Rule 3 means the legal representative or representatives of the deceased plaintiff, or all the representatives of whom the representative applying knew or ought to have known Ghomandi Lal V/s. Amir Begum 16 A. 211 : A.W.N. (1894)23 and Haidar Husain V/s. Abdul Ahad 30 A. 117 : 5 A.L.J. 62 : A.W.N. (1908) 41 : 3 M.L.T. 207. It may well be that if one or more of the legal representatives are unknown or are unwilling to join in the application under Order XXII, Rule 3, different considerations will arise, and that a bona fide application by all the representatives who are willing to join in making the application will be a sufficient compliance with Order XXII, Rule 3: Bhikaji Chandra V/s. Purushotam 10 B. 220, Musala Reddy V/s. Ramayya 23 M. 125 : 9 M.L.J. 313 and Abdul Rahman V/s. Shahab-ud-Din 55 Ind. Cas. 883 : 1 Lah. 481 : 85 P.W.R. 1920. But that question does not arise in this case, for there is no evidence that if Ahamadulla had been informed that the application was to be made he would not have been willing to join in it. That contention, therefore, fail?.

(3.) The learned Advocate on behalf of the appellants further urged that, even assuming that that is so, under Order XXII, Rule 5 the trial Judge erroneously decided the issue as to whether Ahamadulla was the son of Abdul Majid and, inasmuch as the learned District Judge has found that that erroneous finding did not affect the decision of the case within Section 105, Civil Procedure Code, the failure on the part of Ahamadulla either himself or through his brothers to join in the application under Order XXII, Rule 3 was not fatal to the proceeding. Now, it has been held that "affecting the decision of the case" within Section 105 means "affecting the decision of the case" on the merits: Mohamed Nural Amin V/s. Monohar Saran Deb and cases therein cited, and the learned Advocate for the appellant contends that inasmuch as this error on behalf of the learned trial Judge did not affect the decision of the case on the merits, the appeal has not abated. The answer to that contention appears to be that any "error, defect or irregularity in any order" under Sec. 105(1) has been held to mean an error, defect or irregularity in law or procedure and not an incorrect finding of fact: Sankali v. Murlidhar 12 A. 200 and Balabai V/s. Ganesh 27 B. 162 : 4 Bom. L.R. 980. In this case, however, the error which the learned trial Judge made was that he arrived at an erroneous conclusion of fact and, therefore, in our opinion, Section 105 does not apply, This contention also fails. For these reasons, in our opinion, the appeal fails and must be dismissed with costs.