TIRATH SINGH Vs. BAL KISAN

JUDGEMENT

(1.) This is plaintiff's second appeal whose suit was dismissed by the trial Court and the appeal filed by him was dismissed as incompetent having been filed against a dead person.

(2.) The appellant filed the suit against the three defendants who were the real brothers. All the three defendants were represented by one counsel and they filed their joint written statement. During the pendency of the suit, Lal Chand, one of the defendants, died on July 7, 1977. However, no application was made on behalf of the surviving defendants or his legal representatives to bring them on the record. Ultimately, the suit was dismissed by the trial Court on October 25, 1979. In the decree-sheet prepared by the trial Court, the name of Lal Chand, defendant, was shown as one of the defendants. Thus, in the appeal filed on behalf of the plaintiff, Lal Chand was impleaded as one of the respondents along with the other two defendants-respondents. When it came to his notice that Lal Chand, one of the respondents, had already died before the filing of the appeal, he filed the application dated August 1, 1980, for bringing on record the legal representative of the said Lal Chand That application was contested on behalf of the respondents. The lower appellate Court came to the conclusion that the application for bringing the legal representative of Lal Chand, deceased, was utterly misconceived and ineffective because he had already died when the suit was pending in the trial Court and, therefore, the question of bringing his legal representative on the record in the lower appellate Court under O. XXII, R. 4, Civil P. C., (hereinafter called the Code), did not arise. Consequently, the appeal was dismissed as there being no proper appeal having been presented. Dissatisfied with the same, the plaintiff has filed this second appeal in this Court.

(3.) The learned counsel for the appellant contended that admittedly Lal Chand defendant, had died during the pendency of the suit on July 7, 1977. Thus, argued the learned counsel that in view of sub-r. (3) of R. 4 of O. XXII of the Code, as substituted by this Court, which reads as follows: