BHAGIRATH MAL Vs. BHAGWAN DUTT

JUDGEMENT

(1.) The facts giving rise to this application for recalling the order dated 5-11-1993, are as under:

(2.) The applicant had filed appeal against the judgment and decree dated 31-8-1991 passed by the learned District Judge, Jhunjhunu in Civil Suit No. 13 / 84 by impleading Shri Bhagwan Dutt (the deceased) as defendant-respondent No. 1 and non-applicant; Jagdish Prasad as plaintiff-respondent No. 2. The said appeal was registered in this Court as S.B. Civil First Appeal No. 175 /92. The appeal was admitted on 26-8-1992 and it was directed that notice be issued to the respondents. The non-applicant; respondent No. 2, Jagdish Prasad was duly served and appearance was made on his behalf in this Court, but the notice sent to the respondent No. 1 (the deceased) was received back with the report that he had expired. Since, no application had been moved for bringing on record the LRs of the deceased, the appeal was dismissed as having abated vide order dated 5-11-1993 passed by this Court. The applicant has filed this application for recalling the abovesaid order stating that after the abovesaid order was passed it was communicated to the petitioner by his learned counsel and, thereupon, it was revealed that the deceased had died on 5-5-1991 and that at the time of filing of the appeal the applicant did not know about the death of the deceased and as such his name was mentioned in the memorandum of appeal and further that whereas the deceased had died on 5-5-1991 the decree had been passed on 31-8-1991 which shows that the deceased had died during the pendency of the suit and the plaintiff non-applicant had not brought the legal representatives of the deceased on record before the judgment and decree had been passed by the learned trial Court and as such the suit itself had abated and, therefore, the decree passed against the dead person is nullity. It has been prayed that the order dated 5-11-1993 dismissing the appeal as having abated be recalled and it be held that the impugned decree dated 31-8-1991 passed by the learned trial Court itself was nullity. The application has been opposed by the non-applicants.

(3.) I have heard the learned counsel for the parties. During the course of arguments it has not been disputed by the learned counsel for the non-applicant that no legal appearance had been made by the deceased during the pendency of the trial and that the learned counsel for the applicant-defendant had put in appearance on behalf of the deceased also without filing any Vakalatnama and that during the pendency of the suit statement was made by the learned counsel representing the applicant in the learned trial Court that the written statement filed by the applicant-defendant should be treated as the written statement of the deceased-defendant as well, but the learned trial Court had refused to treat the same as the written statement of the deceased-defendant. The suit in question had been filed by the non-applicant for specific performance of the agreement to sell said to have been executed by the deceased in his favour in respect of the property in dispute which is said to have been sold by the deceased to the applicant in violation of the terms of the agreement and the defendant-applicant had been put in possession of the property. It is also the common case of the parties that the property in dispute is situated in District Jhunjhunu within the State of Rajasthan and the deceased was resident of the State of Bihar and that the sale-deed in favour of the applicant had been executed by a person who had been given a Power of Attorney by the deceased. The deceased-defendant not having made appearance and the appearance having been made on his behalf without any authority from him on the basis of a memorandum of appearance and the counsel on the basis of the said memorandum having not been accepted as a duly appointed Advocate and because of that fact the written statement filed by the applicant was not taken as the written statement of the deceased shows that, although, no specific order in this regard was passed, proceedings against him were ex parte, and in these circumstances, it cannot be said that it was within the knowledge of either the plaintiff non-applicant or the defendant-applicant that deceased had died during the pendency of the suit and in these circumstances this fact was not brought to the notice of the learned trial Court who passed the impugned decree. Even otherwise, in view of sub-rule (4) of Rule 4 of Order 22 of the Code of Civil Procedure it was not obligatory, in the circumstances, for the plaintiff to have brought on record the legal representatives of the deceased during the pendency of the suit and as such the appeal having been filed by the applicant impleading the deceased as respondent No. 1 and the report having been received that he had died, there was no question of impleading his LRs as he had died before the suit was decided and not during the pendency of the appeal. In view of these facts, I am of the view that it cannot be said that the appeal can be said to have abated or that the decree passed by the learned trial Court was nullity as no legal representative had been brought on record. Consequently, I am of the view that the order dated 5-11-1993 dismissing the appeal as having abated should be recalled and appeal should be heard on merits.