S.Sarwar Ali, J. - (1.)This second appeal is by the plaintiffs. They succeeded in the trial Court. There was an appeal against the decision of the trial Court being title appeal No. 51/12 of 1962/64. This appeal was allowed and the suit of the plaintiffs was dismissed. A second appeal was preferred by the plaintiffs to this Court being Second Appeal No. 95 of 1965. In this appeal, Tarkeshwar Nath Choubey was appellant No. 1, He died during the pendency of the appeal in this Court. By order of this Court, dated 13-5-1968, the three heirs, who were not already on the record, were brought on the record, as respondents 8 to 10. Radha Ballav Choubey, son of Tarkeshwar Nath Choubey, was already on record of the second appeal. The appeal was allowed and the case was remanded to the court below for disposal in accordance with law. The second appeal was allowed on 26-2-1969. The record along with the copy of the judgment of the High Court was received in the court below on 27-5-1969. Thereafter, after notice to the counsel for the appellants and the respondents, arguments in the appeal were heard on several dates and the judgment was delivered on 23-8-1969. Unfortunately, no one noticed that the name of Tarkeshwar Nath Choubey was continuing as an appellant and that the three ladies, who were added as respondents 8 to 10 in the second appeal 1995 of 1969 were not brought on the record in the court below. Consequently, no notice of appeal was sent to these three persons. There was no appearance on their behalf as well. Thus neither they were brought on the record nor they voluntarily appeared before the court at the time of argument in the appeal. The appeal was allowed this time also and the suit of the plaintiffs was dismissed. As against this decision, the present second appeal (S. A. 744/69) has been preferred by the three of the plaintiffs, who were respondents 2 to 4 as shown in the records of title appeal No. 51 of 1962.
(2.)Mr. S.C. Ghose, appearing for the appellants, has contended that the judgment and decree of the court below has to be set aside as the appeal has been disposed of without some of the heirs of the deceased Tarkeshwar Nath Choubey having been brought on the record of the title appeal and without any notice having been issued to them in respect of the hearing of the appeal. In support of his contention, he relied on decision in Bateri Gope v. Radhakant Missir, 1965 BUR 526. Learned counsel for the respondents, Shri Prem Shankar Sahay, on the other hand, contended that the decision in the aforesaid case is distinguishable on facts. He further contended that the principle of representation shall be applicable in this case, and referred to several decisions including the decision in Dolai Maliko v. Krushna Chandra Patnaik, AIR 1967 SC 49 in support of his contention.
(3.)It is not in dispute, so far as this Court is concerned that when there is a substitution in a pending appeal in the High Court and the matter is remanded to the court below, on remand, the court itself has to see that the names of those, who are dead, should be removed from the record, and those, who are already substituted in the High Court should be brought on the record. What, therefore, has to be seen is whether the non-service of notice to the heirs, who have already been substituted, and were therefore, in the eye of law on the records of the case, brings any infirmity in the decision of the Court, if the case is decided in their absence. In my view, it will be against fundamental concepts to recognise the validity of judgment and decree as against a dead person, or when a judgment has been passed without necessary parties, who were already on the record in the eye of law, being noticed in respect of the hearing of the appeal. It is true that no direct authority has been placed before me, which is on all fours with the facts of the present case. But, what I have said follows from the well-established principles regarding the manner in which Courts should dispose of contested matters before them. The case relied upon by Mr. Ghose is slightly distinguishable, because in that case, the deceased continued to be on the records, and none of his heirs were on the record from before. In this case, one of the heirs, namely, the son, who was already on the record at all stages, was before the court on remand also. But, this distinction will not really bring any substantial difference in the result of this appeal for the reasons already stated.