DWARKA PRASAD, J. - (1.) THIS appeal was taken up for hearing today on the request of the learned counsel for the parties. The facts, which have given rise to this appeal, may be briefly stated :
(2.) SURENDRA Mohan, appellant, filed a suit in the Court of District Judge, Jaipur City for partition of the movable and immovable properties and for possession of all movable and immovable properties falling to his share and also for rendition of accounts of income during the last 12 years. The case of the plaintiff was that Ramnarain had two sons, Pyarelal and Radhamohan. Radha Mohan expired leaving his widow Smt. Panni Bai, defendant No. 3, and son SURENDRA Mohan, plaintiff, and three daughters, Smt. Kamla Devi, Smt. Sushila Devi and Smt. Pushplatadevi. Pyarelal, defendant No. Misalleged to have adopted Brijmohan, natural son of Radhamohan, who is defendant No. 2 in the suit and the wife of Brijmohan Smt. Sheelarani is defendant No. 4 in the suit. According to the plaintiff. Pyarelal, defendant No. 1, had share in the suit properties while defendant No. 2 Brijmohan and defendant No. 3 Smt Pannibai had 1/4 share each, while the plaintiff had the remaining 1/4 share in all the movable and immovable properties belonging to the Hindu Joint Family. Defendants 1 and 2 resisted the suit and denied the allegation of adoption of Brijmohan by Pyarelal. During the pendency of the suit Pannibai, defendant No. 3, who was the mother of the plaintiff Surendramohan, and defendant No. 2 Brijmohan, expired on April 25. 1978. However, no application for substitution of the legal representatives of Smt. Pannibai, deceased, was filed by the plaintiff within the statutory period of 90 days. But on August 16, 1978, the plaintiff submitted applications under order 22 Rule 4, Order 22, Rule 9 C. P. C. and under sec. 5 of the Limitation Act, praying that the abatement on account of the death of defendant No 3 Smt. Pannibai be set aside and the three daughters of Smt. Pannibai deceased, namely Smt Kamladevi, Smt. Sushiladevi and Smt. Pushpalata Devi be brought on record and the delay in filing the application for substitution be condoned. It was also submitted that the plaintiff, who is the son of Smt. Pannibai deceased, is already on the record in another capacity. Learned Additional Distirct Judge, No. 2, Jaipur City, in whose court the suit was pending, held that the plaintiff has not been able to prove that he was prevented by sufficient cause from continuing the suit within the meaning of Order 22 Rule 9 C. P. C. and as such the abatement caused on account of the death of Smt. Pannibai, defendant No. 3, could not be set aside. He also held that there was no sufficient cause for condoning the delay under sec. 5 of the Limitation Act and further that the legal representatives of Smt. Pannibai, deceased defendant No. 3 were necessary parties to the suit but they were not brought on the record of the suit within the time prescribed by law and as such the suit abated as a whcle. Learned Additional District Judge, consequently, by his order dated February 9, 1979 rejected all the applications submitted by the plaintiff and declared that the suit abated as a whole and the same could not be proceeded wich. It is against this order passed by the learned Additional District Judge that this appeal has been preferred by the plaintiff in this court. A preliminary objection was raised by the learned counsel for the respondents that a miscellaneous appeal is not maintainable, as the suit has been dismissed the appellant should have preferred a regular first appeal against the decree. It is not disputable that no decree has been prepared in the present case. The suit has not been dismissed on merits, but it has been declared to have abated, on account of the failure of the plaintiff to substitute the legal representatives of the deceased defendant No. 3, Smt. Pannibai, within the prescribed time and the trial court has further refused to set aside the abatement and has declared that the suit should be considered to come to an end. Clause (K.) of Rule 1 of Order 43 C. P. C. provides that an appeal shall lie from an order passed under Rule 9 of Order 22 C. P. C. , "refusing to set aside the abatement or dismissal of a suit," besides several other order9 provided for in the different clauses of that rule. Under Order 22 Rule 4 C. P. C. , the suit abates as against the deceased defendant where one of the two or more defendants dies and the right to sue does not survive against the surviving defendants alone and no application to make the legal representatives of the deceased defendant party to the suit is made within the time limited by law. But where there are more defendants then one and any of them dies, but the right to sue survives against the remaining defendents, then the court is only required to make an entry to that effect on the record and the suit shall proceed against the surviving defendants, as provided in Rule 2 of Order 22, CPC. Thus, it is in those cases where one of the several defendants dies and the right to sue does not survive against the surviving defendants alone, the question of abatement of the suit arises, if an application to make the legal representatives of the deceased defendant party to the suit is not made within the time prescribed by law. If as a result of abatement of the suit as against the deceased defendant as provided in clause (3) of Rule 4 of Order 22 C. P. C. , the suit cannot be proceeded with against the surviving defendants alone, then only the court shall declare that the suit cannot be proceeded with further in its entirety. We may point out here that sub-rule (2) of Rule 9 of Order 22 C P. C. provides for setting aside the order of "the abatement" as well as "the dismissal" of the suit passed under Order 22 C P. C. In all cases, whether the suit abates as against the deceased defendant alone or as a whole, the plaintiff or the legal representatives of the deceased plaintiff, are entitled to apply under Rule 9 of Order 22 C. P. C. for setting aside the abatement or dismissal of the suit, if he is able to prove that he was prevented by any sufficient cause from continuing the suit. If may also be mentioned here that clause (K.) of Order 43 Rule 1 C. P. C. provides for an appeal against the refusal to set aside "the abatement" or "dismissal" of the suit, by an order passed under Rule 9 of Order 22 C. P. C. Thus, where the abatement is against the deceased defendant alone or even if, as a consequence thereof, the suit is dismissed as a whole and as against the surviving defendants as well, then an application under Order 22 Rule 9 (2) C. P. C. is maintainable and if such an application is rejected and if on such application the court refuses to set aside the abatement' or 'the dismissal' of the suit, an appeal is maintainable under Order 43, Rule l (k) C. P. C. of the order passed by the learned Additional District Judge, in the instant case, is are under order 22 Rule 9 C. P. C. refusing to set aside the abatement of the suit with respect to the deceased defendant No. 3, Smt. Pannibai and also the consequent dismissal of the suit as a whole and, in pur view, the said order is appealable under clause (K) of order 43 rule 1 C. P. C. We, therefore, find no force in the preliminary objection raised by the learned counsel for the respondents in reapect of the maintainability of the presant appeal and the same is repelled and we hold that the miscellaneous appeal filed by the appellant is maintainable. As regards the merits of the appeal, learned counsel for the appellant did not argue before us that the appellant was prevented on account of any sufficient cause from submitting an application for setting aside the abatement within the time limited by law. But it was vehemently argued by the learned counsel for the appellant that as the appellant, who is one of the legal representatives of deceased defendant No. 3, Smt. Pannibai, was already on the record of the suit in another capacity, her estate was represented by him and an application was also moved by the plaintiff appellant in the trial court on August 16, 1978, praying that the three daughters of the deceased defendant No. 3. Smt. Pannibai, be also brought on the record and as such the trial court should not have held that the suit had abated as against the deceased defendant No. 3 Smt. Pannibai, and in its entirety as well. On the other hand, learned counsel for the respondents supported the order passed by the trial court and relied upon the decision of a learned Single Judge of this Court in Bhanwarlal vs. Bhuli Bai (l ). In our view, the question raised in this appeal stands concluded by the decision of their Lordships of the Supreme Court in Daya Ram vs. Shyam Sundari (2) and Mahabir Prasad vs. Jage Ram (3 ). In Daya Ram's case (2), the appellant had impleaded some of the heirs of the deceased respondent within the time allowed by law, but had omitted to bring two of the heirs of the deceased respondent Shyamsundari on record. It was urged before their Lordship of the Supreme Court that on account of the aforesaid omission the appeal had abated. But their Lordships repelled the contention advanced before them and observed as under: - "the almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bonafide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatament of the suit or appeal, that the impleaded legal representatives sufficiently represents the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including these not brought on record. " Their Lordships of the Supreme Court also approved the decision of the Madras High Court in Kadir Mohideen vs. Mathu Krishna Ayyar (4) to the effect that the party dying during the pendency of the suit is fully represented for the purpose of the suit, "but only for that purpose" by a person whose name is entered on the record in place of the deceased party, though such person may be only one of the several legal representatives or may not be the true legal representative It was held that the aforesaid view correctly represents the law on the subject. It was further held by their Lordships as under; - "in a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating. We have not been referred to any principle of construction of O. 22 R. 4 or of the law which would militate against this view. " (Italic is ours.)
(3.) THUS their Lordships have held that even if some of the legal representatives were omitted to be included, who admittedly had an interest in the property, though some of the legal representatives of the deceased party were brought on record, the appeal did not abate. Their Lordships pointed out that the correct Procedure in such cases would be that when once it is brought to the notice of the court hearing the appeal that some of the legal representatives of the deceased respondent have not been brought on record and the appellant is made aware of this fault on his part, it would be his duty to bring these others on record, so that the appeal could be properly constituted. The result thereof would be that the appellant could implead the remaining legal representatives, whom he omitted to bring on record in the first instance and subsequently he could apply to the court to bring such omitted legal representatives, for the purpose of making the record complete. In Mahabir Prasad's case (3) the question before their Lordships of the Supreme Court was exactly the same as is before us in the present case, namely, when a party, defendant or respondent, dies and one of his legal representative is already on record in an other capacity, does the appeal abate if an application to bring the remaining legal representatives on record is not made within the time limited by law ? The High Court of Punjab had dismissed the appeal, in that case, on the ground that all the legal representatives of deceased Sarojdevi were not brought on record within the period of limitation and as such the appeal abated in its entirety. Their Lordships of the Supreme Court did not agree with the view taken by the Punjab High Court on two grounds, of which we are concerned in the second or the alternative ground and it would be proper to reproduce the observations made by their Lordships of the Supreme Court in this respect: - "even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustained. " (italic is ours.) Again in Harihar Prasad Singh vs. Balmiki Prasad Singh (5) the same principle was reiterated by their Lordships of the Supreme Court and after referring to the observations made above in Mahabir Prasad's case (3) quoted above. , their Lordships of the Supreme Court proceeded to observe as under :- "that meets the point raised by the respondents exactly. The principle is of representation of the estate of the deceased which need not be by all the legal representatives of the deceased. " ;