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Harbans Lal Vs. Ved Parkash - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 260 of 1971
Judge
Reported inAIR1973P& H351
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 4
AppellantHarbans Lal
RespondentVed Parkash
Cases ReferredRangubai v. Sunderbai
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the appeal, however, failed on merits and that order was upheld by me in civil revision no. atma singh, (1962) 64 punj lr 939=air 1963 punj 113. both these authorities are clearly..........arising for decision in this petition is where a suit abates for not bringing on record the legal representatives of a deceased defendant, though in appeal against an order made in that suit granting temporary injunction to the plaintiff the legal representatives of the deceased defendant had been impleaded within the time allowed by law? the matter has been arisen in the following manner:2. the respondent ved parkash brought a suit for permanent injunction restraining the present petitioner harbans lal (defendant no. 1) from interfering with his possession of shop no. c-972 situate in purani mandi, karnal and also for further directing the two rooms marked x and y in that shop. the plaintiff asserted that the shop in dispute was in possession of the partnership firm m/s. ved.....
Judgment:
ORDER

1. The short question arising for decision in this petition is where a suit abates for not bringing on record the legal representatives of a deceased defendant, though in appeal against an order made in that suit granting temporary injunction to the plaintiff the legal representatives of the deceased defendant had been impleaded within the time allowed by law? The matter has been arisen in the following manner:

2. The respondent Ved Parkash brought a suit for permanent injunction restraining the present petitioner Harbans Lal (Defendant No. 1) from interfering with his possession of Shop No. C-972 situate in Purani Mandi, Karnal and also for further directing the two rooms marked X and Y in that shop. The plaintiff asserted that the shop in dispute was in possession of the partnership firm M/s. Ved Parkash Kundan Lal and Kundan Lal had permitted Harbans Lal (Defendant No. 1) to store his goods in two rooms of that shop. Harbans Lal did not dispute that he was in possession of this accommodation, but attempted to justify his possession by alleging that he was a direct tenant of the owners of the shop. while the suit was still at preliminary stage, an application for interim injunction was made by the plaintiff and the same was granted. Against that order dated 26th of March, 1970 an appeal was taken to the Additional District Judge Karnal, Kundan Lal defendant having died in the meanwhile his legal representatives were substituted. His daughter Smt. Parkash being his sole legal representative was brought on record in the appeal. The appeal, however, failed on merits and that order was upheld by me in Civil Revision No. 1043 of 1970 decided on 24th January, 1972. In the course of proceedings in the suit Harbans Lal Defendant No. 1 who is now the petitioner before me, made an application under Order 22, rule 4. a Civil Procedure Code for dismissal of the suit as having abated on the plea that the legal representatives of Kundan Lal defendant were not brought on record though he had died about five months back. The learned trial Judge rejected this application, holding that the legal representatives of Kundan Lal defendant having been impleaded in the appeal against an order made in that suit no fresh application for bringing her on record was necessary, and in any case the suit did not abate as no relief was prayed for against the Defendant No. 1. It is against this order dated 5th of February, 1970, that Harbans Lal has come up in revision.

3. It is not disputed that in the appeal preferred by the defendant against the order granting temporary injunction the legal representatives of Kundan Lal Defendant No. 2 had been brought on record. In support of the contention that this would not obviate the necessity of moving the Court by proper proceedings for substituting legal representative of the deceased-defendant, it is contended that since the suit and appeal proceedings were separate and they were pending before different Courts, the substitution of the legal representatives of the deceased-defendant in the appeal would not be taken as substitution in the suit. It is further urged that the principle that an appeal is a re-hearing of the suit did not apply in this cases the appeal was not against the final decision in the suit but against an interlocutory order which had left the suit still pending. Learned Counsel for the petitioner has not been able to site any direct authority on the point, but he has placed reliance on Punjab State v. S. Atma Singh (1962) 64 Punj LR 939=(AIR 1963 Punj 113) and Shankaranaraina Saralaya v. Laxmi Hengsu AIR 1931 Mad 277. The latter is a Single Bench authority wherein it was held that where two appeals are independently filed and arise out of the same suit and where one is filed by the plaintiff in the original suit and the order by the defendant and where the appeal by the defendant-appellant has abated as. he has not added the legal representatives of the deceased respondent in time the defendant-appellant cannot claim the benefit of the fact that the legal representative of the deceased appellant in the appeal filed by the plaintiff-appellant has been added within time and therefore say that it should be taken that those legal representatives have also been added in place of the deceased respondent in his appeal. This is the decision that was followed by this court in Punjab State v. S. Atma Singh, (1962) 64 Punj LR 939=AIR 1963 Punj 113. Both these authorities are clearly distinguishable and do not apply to the facts of the instant case.

4. I, however, find that the question raised is fully covered by the decision of the Privy Council in Brij Indar Singh v. Kanshi Ram, ILR 45 Cal 94=AIR 1917 PC 156 wherein it was ruled that introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, even it be made on an appeal from a mere interlocutory order. In that case legal representatives of the deceased party were substituted in an application for revision pending in the Chief Court against an order of the trial Court directing the parties to produce certain documents. No application was, however, made for substitution of the legal representatives of the deceased in the suit. In holding that the suit did not abate, their Lordships of the Judicial Committee observed as follows:

'The plaintiff as representative of the original plaintiff, and the defendant's representatives of Joti Lal, had been introduced in the Chief Court. No doubt that was only done in the course of an interlocutory application as to production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages and the prayer, which seems to have been made ob majorem cautelam by the plaintiff, in his application to the District Judge Prenter under Section 365, was superfluous and of no effect. Coates, the judgment-debtor was only formally called, and the non-presence of his representatives would afford no ground for the abatement of the suit.'

5. Mr. R. P. Bali appearing for the respondent, has brought to my notice that their Lordships of the Supreme Court have, in Rangubai v. Sunderbai AIR 1965 SC 1794, accepted this as an authority for the proposition that if the legal representatives of the deceased plaintiff or defendant are brought on record in an appeal or revision within the prescribed time at one stage of the suit it will ensure for the benefit of all the subsequent stages of the suit, though they have ruled that the same principle cannot be invoked in the reverse case as a suit is not a continuation of an appeal and an order made in a suit subsequent to the filing of an appeal at an earlier stage cannot be projected backwards into the appeal that had already been filed. I thus, find that the learned trial Judge has taken correct view of the matter. In any case, the suit could not abate because of the death of Kundan Lal Defendant No. 2 as he was only a proforma party and no relief had been prayed for against him. There is no merit in this petition and I dismiss it with costs.

6. Petition dismissed.


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