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Mahboob Hasan Khan and ors. Vs. Syed Bashir HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 309 of 1954
Judge
Reported inAIR1961All527
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 9 and 11 - Order 43, Rule 1
AppellantMahboob Hasan Khan and ors.
RespondentSyed Bashir HusaIn and ors.
Appellant AdvocateSyed Sadiq Ali, Adv.
Respondent AdvocateG.P. Bhargava, Adv.
DispositionAppeal dismissed
Excerpt:
civil - appealable suit - order 22 rules 9 and 11 and order 43 rule 1(k) of code of civil procedure, 1908 whether suit in order 43 rule 1(k) includes appeal - held, word 'suit' under order 43 rule 1 (k) cannot be construed to include appeal. - - a perusal of the entire provisions of order 43 would indicate that in this order the word 'suit' as well as the word 'appeal' is used in various portions of it......the abatement or dismissal of a suit. learned counsel for the respondents has argued that the word 'suit' in this provision of law does not include an appeal. on the other hand, learned counsel for the appellant has relied on the provisions of order 22 rule 11, c.p.c. which runs as follows :'in the application of this order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent and the word 'suit' an appeal'. learned counsel for the appellant argued that because under order 22, rule 11 the word 'suit' should be construed to include1 an appeal, so also under order 43, rule 1 (k) the word 'suit' should be interpreted to include an appeal. i find it difficult to accept this contention. order 22, rule 11, c. p. c......
Judgment:

N.U. Beg, J.

1. This is an appeal from an order of the lower court refusing to set aside the abatement of an appeal. It arises out of a suit filed under Section 59 of the U. P. Tenancy Act praying for a declaration in respect of the plaintiffs' tenancy rights in a grove.

2. The trial court held that a suit of this nature should have been filed in the revenue court. It, accordingly, directed that the plaint should be returned to the plaintiff under Order 7, Rule 10, C.P.C. for presentation to the proper court.

3. Dissatisfied with the said order, the plaintiff filed an appeal. Respondent No. 8 in this appeal was one Zafar Ahmad. He died. No steps were taken by the appellant to have his legal representatives brought on record within the period of limitation provided therefor. Three years after his death, the appellant made an application . for setting aside the abatement of the appeal against respondent No. 8 on the ground that he had no knowledge of the death of respondent No. 8 till 2-10-1953.

The lower appellate court disbelieved the allegation of the appellant, and held that the appeal had abated agaiast respondent no. 8. It further held that the result of the abatement of the appeal against respondent No. 8 was that the whole appeal was incompetent. It, accordingly, dismissed the appeal with costs. The appellant has filed this appeal from the order of the lower appellate court refusing to set aside the abatement of the appeal against respondent No. 8. The memo of appeal shows that it has been tiled under Order 43, Rule 1 (k), C.P.C.

4. On behalf of the respondents a preliminary objection is taken on the ground that this appeal is not maintainable. Order 43, Rule 1 (k), C.P.C. provides for an appeal against an order under Rule 9 of Order 22 refusing to set aside the abatement or dismissal of a suit. Learned counsel for the respondents has argued that the word 'suit' in this provision of law does not include an appeal. On the other hand, learned counsel for the appellant has relied on the provisions of Order 22 Rule 11, C.P.C. which runs as follows :

'In the application of this Order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent and the word 'suit' an appeal'.

Learned counsel for the appellant argued that because under Order 22, Rule 11 the word 'suit' should be construed to include1 an appeal, so also under Order 43, Rule 1 (k) the word 'suit' should be interpreted to include an appeal. I find it difficult to accept this contention. Order 22, Rule 11, C. P. C. itself indicates that the inclusion of an appeal within the term 'suit' under the provision of lawis confined to the application of that Order only, namely Order 22.

If any question, therefore, were to arise under Order 22, the word 'suit' would include an appeal. The question arising in this case however, is a different one. In the present case, the question at issue is whether the word 'suit' in Order 43, Rule 1 (k) includes an appeal. A perusal of the entire provisions of Order 43 would indicate that in this Order the word 'suit' as well as the word 'appeal' is used in various portions of it.

Further, it would also indicate that nowhere in this Order any provision is made to the effect that in this Order the word 'suit' should be interpreted to include an appeal. A reference to the provisions of Order 22, Rule 11, C.P.C. would show that where it was the intention of the Legislature to include appeal in the word 'suit' the Legislature expressly provided for the same In the absence of a similar provision in Order 43, 1 am of opinion that the word 'suit' in Order 43, Rule 1 (k) should not be interpreted to include an appeal. The preliminary objection must, therefore, prevail.

5. I, accordingly, dismiss this appeal withcosts.


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