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Tulsi Ram Vs. Municipal Board - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All379a
AppellantTulsi Ram
RespondentMunicipal Board
Cases ReferredMt. Gujrati v. Sital Misir A.I.R.
Excerpt:
.....[1996 aihc 3628 overruled]. - 540 lays down an excellent workable rule that there would be an automatic abatement and the party who wishes to be substituted should apply under order 22, rule 9, for setting aside the automatic abatement and for substitution. this is a matter which should be brought to the notice of the rules committee, and as there is divergence of opinion it is desirable that the view of the single judge which could be better put in practice should be adopted in the rules and words added in rule 3 and rule 4 to make it clear that the abatement and dismissal for want of action within the period of limitation shall be automatic. the registrar shall be requested to put up suitable amendments before the rules committee, with a note of mine that the procedure laid down..........the hearing of the argument. such a decree is a nullity as may be gathered from the provisions of rule 6. rule 6 lays down specifically that there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but the judgment may in such cases be pronounced not with standing the death and shall have the same force and effect as if it had been pronounced before the death took place. obviously, therefore, if the death took place prior to the hearing of the argument the decree would be a nullity. with great respect this rule may be cited in favour of the opinion of the single judge because there must be a presumption of automatic abatement when in rule 6 it is stated that there will be no abatement by reason of the.....
Judgment:

Dalal, J.

1. There is a considerable confusion as to the steps which should be taken to bring fresh parties on to the record ninety days after the death of the party in whose place substitution is desired. The ruling of a single Judge of this Court in Lachmi Narain v. Muhammad Yusuf [1920] 42 All. 540 lays down an excellent workable rule that there would be an automatic abatement and the party who wishes to be substituted should apply under Order 22, Rule 9, for setting aside the automatic abatement and for substitution. Unfortunately there was dissent from this ruling by a Bench of this Court in Mt. Gujrati v. Sital Misir A.I.R. 1922 All. 209. It is curious that such a Bench-judgment which overrules a reported cases in a volume of the Allahabad Law Journal should not be reported in that journal or in the Indian Law Reports. I am stating this from information given to me at the Bar. Without commencing on the validity of either ruling the Bench ruling greatly complicates procedure because first of all the party desiring action under Rule 9 would have to obtain a specific order of abatement or dismissal from the Court before substitution can take place. This is a matter which should be brought to the notice of the Rules Committee, and as there is divergence of opinion it is desirable that the view of the single Judge which could be better put in practice should be adopted in the rules and words added in Rule 3 and Rule 4 to make it clear that the abatement and dismissal for want of action within the period of limitation shall be automatic. The Registrar shall be requested to put up suitable amendments before the Rules Committee, with a note of mine that the procedure laid down by the Bench-ruling is complicated and involved, while the procedure consequent on automatic abatement or dismissal would be quicker and better understood by litigants.

2. In the present case a decree was passed by a learned Judge of this Court in favour of the plaintiff-appellant without knowledge that the plaintiff-appellant had died prior to the hearing of the argument. Such a decree is a nullity as may be gathered from the provisions of Rule 6. Rule 6 lays down specifically that there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but the judgment may in such cases be pronounced not with standing the death and shall have the same force and effect as if it had been pronounced before the death took place. Obviously, therefore, if the death took place prior to the hearing of the argument the decree would be a nullity. With great respect this rule may be cited in favour of the opinion of the single Judge because there must be a presumption of automatic abatement when in Rule 6 it is stated that there will be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment;. The meaning appears to be that automatic abatement which follows in other cases does not follow in this particular case.

3. To shorten procedure I now declare Second Appeal No. 96 of 1928 to have abated.

4. The next question is whether under Rule 9 this abatement should bo set aside and substitution made I have read the affidavit. The reasons given therein are not sufficient to give the legal representatives of Tulsi Ram the benefit of the provisions of Section 5, Dim. Act. It was the duty of those representatives to acquaint themselves with the legal dealings of Tulsi Ram when he died. It is not the case of a stranger as in the case of a plaintiff being ignorant of the death of one of the defendants.

5. I dismiss this application.


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