1. This is plaintiff's second appeal whose suit was dismissed by the trial Court and the appeal filed by him was dismissed as incompetent having been filed against a dead person.
2. The appellant filed the suit against the three defendants who were the real brothers. All the three defendants were represented by one counsel and they filed their joint written statement. During the pendency of the suit, Lal Chand, one of the defendants, died on July 7, 1977. However, no application was made on behalf of the surviving defendants or his legal representatives to bring them on the record. Ultimately, the suit was dismissed by the trial Court on October 25, 1979. In the decree-sheet prepared by the trial Court, the name of Lal Chand, defendant, was shown as one of the defendants. Thus, in the appeal filed on behalf of the plaintiff, Lal Chand was impleaded as one of the respondents along with the other two defendants-respondents. When it came to his notice that Lal Chand, one of the respondents, had already died before the filing of the appeal, he filed the application dated August 1, 1980, for bringing on record the legal representative of the said Lal Chand That application was contested on behalf of the respondents. The lower appellate Court came to the conclusion that the application for bringing the legal representative of Lal Chand, deceased, was utterly misconceived and ineffective because he had already died when the suit was pending in the trial Court and, therefore, the question of bringing his legal representative on the record in the lower appellate Court under O. XXII, R. 4, Civil P. C., (hereinafter called the Code), did not arise. Consequently, the appeal was dismissed as there being no proper appeal having been presented. Dissatisfied with the same, the plaintiff has filed this second appeal in this Court.
3. The learned counsel for the appellant contended that admittedly Lal Chand defendant, had died during the pendency of the suit on July 7, 1977. Thus, argued the learned counsel that in view of sub-r. (3) of R. 4 of O. XXII of the Code, as substituted by this Court, which reads as follows:
'Where within the time limited by law no application is made under sub-r. (1), the suit shall not abate as against the deceased defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.'
it was the duty of the surviving defendants or the legal representative of Lal Chand, deceased, to make an application for being impleaded as the parties to the suit. In any case, the interests of the deceased defendant were fully represented by his other two brothers who had filed the joint written statement in the trial Court. Under the circumstances, the appeal filed in the appellate Court could not be dismissed as not maintainable. The legal representative of Lal Chand, deceased could be brought on the record under O. 1, R. 10 of the Code, if so desired. Even in her absence, the appeal could be decided on merits taking that the legal representative of La1 Chand, defendant, was not impleaded in the trial Court.
4. After hearing the leamed counsel for the parties, I am of the considered opinion that the whole approach of the lower appellate Court is erroneous and illegal. In view of sub-r. (3) of R. 4 of O. XXII of the Code, as substituted by Court, re-produced in the earlier part of this judgment, the suit could not abate in the trial Court and even could proceed when the legal representative of Lal Chand, deceased, was not brought on the record. Of course, the appellant impleaded Lal Chand, deceased, as a respondent in the appeal because in the decree-sheet prepared by the trial Court, his name was shown as one of the defendants. Thus, it was a bona fide mistake on his part. In case the legal representative of Lal Chand had not been brought on the record in the trial Court, the appeal could be filed by the plaintiff against the surviving defendants without impleading the legal representative of Lal Chand, deceased. In that situation, the appeal was competent and could be decided on merits in view of the provisions of sub-r. (3) of R. 4 of O. XXII of the Code, as substituted by this Court. As a matter of fact, it was for the benefit of the legal representative of Lal Chand, deceased, that she should be brought on the record if she so desired. In any case, the appeal could not be said to have been filed against a dead person in the sense that Lal Chand, one of the defendants, had already died during the pendency of the suit in the trial Court. Thus, the appeal filed by the plaintiff was competent and could be proceeded with in the absence of the legal representative of Lal Chand, deceased. However, it will be open for her to come on the record if so desired. The learned counsel for the respondents cited Amar Kaur v. Sadhu Singh, AIR 1961 Punj 57, B. S. Singh v. R. D. Singh, AIR 1973 SC 204 and Ramji Lal v. Hira, (1983) 85 Pun LR 231, but the said rulings have no relevancy to the point in question.
5. As a result of the above discussion, this appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside and the case is remanded for decision on merits in accordance with law. The parties have been directed to appear in the lower appellate Court on April 26, 1984.
6. Appeal allowed.