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Chhabinath & Another v. The District Judge, Shahjahanpur & Another - WRIT - C No. 21067 of 1998  RD-AH 687 (31 August 2004)
Court No. 51
Civil Misc. Writ Petition No. 21067 of 1998
Chhabinath and another ---- Petitioners
The District Judge Shahjahanpur & another -- Respondents.
Hon'ble V.C.Misra, J.
1. Heard Sri Ramendra Asthana, learned counsel for the petitioners and Sri M. K.Nigam, learned counsel appearing on behalf of the respondents.
2. The facts of the case in brief are that the original suit No. 236 of 1986 for specific performance of contract was filed by respondent no. 2- Bhagwandin, against the petitioners, which was decreed by the Additional Civil Judge, Shahjahanpur vide his order dated 24th January, 1987 against which a first appeal No. 222 of 1987 was filed before this Court. However, during its pendency Dhani Ram - appellant defendant died on 10th December, 1989 and, thereupon an application for substitution of the legal heirs of Dhani Ram was filed. The first appeal No. 222 of 1987 was subsequently transmitted from the office of this Court to the learned appellate court below, but the record transmitted to the learned District Judge did not contain the copy of the substitution application. On 17th February, 1998, the petitioners filed a fresh application for substitution of the legal heirs of Dhani Ram before the learned District Judge who rejected the application and passed the impugned order dated 28th March, 1998 declaring the appeal to have abated and was consigned to record.
3. Learned counsel for the petitioners in support of his case relied upon the decision of this court in Faqir Ram Vs. Faalu and another (AIR 1980 Alld. 171) wherein it has been held that under the provisions of Order XXII Rule 11 of the Civil Procedure Code, 1908 in case of death of one of the two respondents who sued in the capacity of joint owners and were father and son the omission to bring legal representatives on record on death of father would not abate the appeal. Similarly in the case of Munney Khan Vs. Kalloo Singh and others ( 1986 AWC 460) this Court relied upon the decision of the Supreme Court rendered in Mahabir Prasad Vs. Jage Ram (AIR 1971 Supreme Court 742), wherein, it was held, that 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 representative and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. In the case of Munney Khan (Supra) it was held that the order directing the appeal to have abated could not be sustained inasmuch as one of the legal representatives of Smt. Jamuna Devi namely Kalloo Singh was already on record and the only thing which was required to be done was to implead Smt. Basanti Devi also as the respondent in the appeal so that all the legal representatives of Smt. Jamuna Devi were represented. It was further held that there is no limitation prescribed for impleading the remaining legal representatives on record and this could be done any time before the disposal of the appeal in order to keep the record straight.
4. In the instant case it is admitted fact that the appellant-defendant Dhani Ram died during the pendency of the appeal leaving behind his two legal heirs- real brothers Chhabi Nath and Prem Shanker. The record of the case shows that after the death of Dhani Ram the entire estate was represented by Sri Chhabi Nath who was already on record and under such circumstances I am of the view that the appeal could not abate. In my view the application for substituting the name of Sri prem Shanker one more legal representative moved subsequently by Sri Chhabi Nath does not come in the way of the appeal from being heard and disposed off on merit. Since there is no limitation prescribed for substituting/impleading the remaining legal representatives on record, this could be done any time before the disposal of the appeal in order to keep the record straight.
5. Accordingly I find that the lower appellate court below in its order dated 28th March, 1998 has grossly erred in holding otherwise and wrongly rejected the substitution application treating the appeal to have abated. The impugned order dated 28th march, 1998 is accordingly quashed.
The writ petition is allowed to the extent indicated above. The appeal shall be heard and decided on merits by the lower appellate court, in accordance with law. No order as to costs.
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