- (1.) POONAM Srivastava, J. Heard Sri P. P. Srivastava, Senior Advocate assisted by Sri Suneet Kumar, learned Counsel for the appellant and Sri K. M. Garg, Advocate for the plaintiff- respondent.
(2.) AN objection has been raised at the very out set regarding maintainability of this second appeal by Sri K. M. Garg on the ground that the appeal was instituted by a dead person. Sri P. P. Srivastava appearing for the defendant-appellant has brought to my notice the relevant dates relating to the present second appeal. The plaintiff-respondent instituted a suit No. 134 of 1989 before the Civil Judge (Junior Division), Bijnor for recovery of possession, damages and mesne profit at the rate of Rs. 500/- per month alongwith 18% interest. The Trial Court decreed the suit in part, for recovery of possession and mesne profit at the rate of Rs. 20/- per month with 18% per annum. The defendant-appellant preferred an appeal vide Civil Appeal No. 25 of 2003 which was dismissed vide judgment and decree dated 19-4-2005 by the Additional District Judge, Bijnor. The present second appeal was prepared and affidavit filed in support of the stay application was sworn on 5-7-2005. The appeal was reported on 6-7-2005. It was reported that the limitation of the appeal is up till 3-8-2005. The appeal was presented on 1-8- 2005. In the intervening period, when the appeal was reported and it was presented before the Court, within limitation, the appellant died on 17-7-2005. The order sheet dated 4-8-2005 shows that the appeal came up before the Court for the first time on 4- 8-2005 and thereafter it was adjourned on a number of dates. It transpires from the record that on 8-8-2005 a substitution application under Chapter X, Rule 3 of the High Court Rules read with Order XXII, Rule 4 C. P. C. was moved. On 22-8-2005, this application came up before the Court. Counsel for the plaintiff- respondent accepted the notice and prayed time to file a counter- affidavit. Subsequently, another application under Section 151 C. P. C. was filed and the Court directed the application alongwith accompanying affidavit to be kept on record on 22-8-2005. ANother application under Section 5 of the Indian Limitation Act was also filed for condonation of delay. Simultaneously on the same day another application under Chapter X, Rule 3 of the High Court Rules read with Section 151 C. P. C. was filed, to which counter and rejoinder affidavits have been exchanged. Before the appeal was heard on merits, the respective Counsel for the parties were heard at length on the question of maintainability of this appeal. In the circumstances, I proceed to decide the substitution application and also application under Chapter X, Rule 3 of the High Court Rules read with Section 151 C. P. C. Order XXII, C. P. C. deals with the substitution proceeding to be adopted on the death, marriage and insolvency of the parties. Sri K. M. Garg appearing for the plaintiff-respondent has emphatically stated that at the time when the appeal was presented, admittedly, the sole defendant-appellant was dead and since the appeal was presented by a dead person, it is a nullity and no subsequent application for substitution can be entertained. The submission on behalf of the plaintiff-respondent is that the provisions of Order XXII, C. P. C. is applicable in a pending proceeding and not in an appeal which was instituted by a person who was already dead, and, therefore, since the appeal is a nullity, the subsequent application also cannot be entertained. A number of decisions has been relied upon by Sri K. M. Garg, M/s. Nevandram Javermal v. Devikabai Haridas Gandhi and Ors. , AIR 1982 Bombay 589; Bala Prasad v. Radhey Shiam and Anr. , AIR 1934 Allahabad 25; Chitradhar Gogoi and Ors. v. Lalit Chandra Gogoi and Ors. , AIR 1974 Gauhati 2 (V 61 C 2); C. Muttu v. Bharath Match Works, Sivakasi, AIR 1964 Mysore 293 (V 51 C 73); The Temple of Shri Shantadurga Calangutcarina, Nanora and Ors. v. Macario Francisco Jose Duarte and Anr. , AIR 1976 Goa, Daman and Diu 54; Cuttack Municipality v. Shyamsundar Behera, AIR 1977 Orissa 137; Banarasi v. Smt. Savitri Upadhyay and Ors. , 2005 (3) JCLR 318 (SC) : 2005 (98) RD. 636 and Smt. Jagrani (Dead) through Lrs. v. IInd Additional District Judge, Jhansi, 2005 (3) JCLR 319 (SC) : 2005 (98) RD 636. Sri P. P. Srivastava has placed reliance on a decision of this Court in the case of Smt. Prempiari and Ors. v. Dukhi and Anr. , AIR 1976 Allahabad 444. It is argued on behalf of the deceased-appellant that no doubt when an appeal is filed against a dead person, it is a still-born appeal and the provisions of Order XXII, C. P. C. would not apply, but in the event, an application is made for substituting the legal heirs of the deceased who died prior to the institution of the appeal, the appeal would be taken to have been filed on the date of the application and if the appeal is time barred and the provisions of Section 5 of the Indian Limitation Act is invoked for getting the delay condoned, it would be taken that the appeal is filed on the date, limitation is condoned.
(3.) AFTER going through the aforesaid decisions cited by the respective Counsels for the parties, so far the application under Order XXII, C. P. C. is concerned, it is correct to say that no substitution can be permitted in a case where there was sole defendant or the appellant and he was dead on the date of institution of the appeal, but where there are more defendants than one, and one of them was dead when the suit was filed or the appeal was presented, the Courts have held that the legal representatives of the deceased-defendant can be brought on record subject to the question of limitation. If there would have been a number of appellants then the suit was very much maintainable at the instance of the other appellants and application for substitution under Order XXII, Rule 4 C. P. C can very well be entertained, In the case of Bala Prasad (supra) this High Court had clearly held that where a suit is filed against the several defendants, one of whom was dead at that time of institution, the suit cannot be considered to have been instituted against a dead person and it cannot be said that it is not a validly instituted suit. In such an event, the Court can exercise all the powers of Order XXII Rule 4 C. P. C. In the present case, however, the situation is altogether different, the appeal was presented by a dead person. Admittedly the appellant Abdul Sattar was not alive on 1-8-2005. He was not alive at the relevant time, therefore, the appeal can very well be said to be a nullity and no aid can be taken under the provisions of Order XXII, Rule 4 or Order VI, Rule 17 C. P. C. The decisions cited on behalf of the plaintiff-respondent so far the provisions of Civil Procedure Code is concerned, appears to be correct law and therefore I come to a conclusion that the application for substitution under Order XXII or Order 6 Rule 17 C. P. C. cannot be allowed. The application for substitution is accordingly dismissed. However, Allahabad High Court Rules, 1952 provides a remedy in such an extra-ordinary circumstances. Chapter X of the High Court Rules deals with the appeal or application by or against the legal representatives, assignee etc. Chapter X, Rule 3 of the High Court Rules is quoted below: "3. Appointment of legal representative of deceased party after the filing of appeal.- Where after a memorandum of appeal has been presented to the Court, any appellant or any party interested in the maintenance of an objection filed under Rule 22 of Order XLI of the Code, is informed that any person who is arrayed as a party in such appeal or objection had died before the memorandum of appeal was presented but after the decree or order appealed from was passed, he may subject to the law of limitation, make an application for an order that the memorandum of appeal be amended by substituting for the person who is dead, his legal representative. The application shall state such facts as may be necessary to support it and shall be accompanied by an affidavit. ";