1. Gopi Ram and Remeshwar Dass filed a suit for possession of the land measuring 9 Kanals 8 marlas which was decreed by the trial Court on March, 21, 1980. After obtaining the copies of the judgment and decree of the trial Court, the sole defendant filed first appeal before the District Judge. Ambala on April 22, 1980. After excluding the time spent in obtaining the copies, the last date for filing the appeal was May, 5, 1980. Hence the appeal was filed well within time. Notice of the appeal was issued to the plaintiff-respondents for May, 25, 1980. On May 25, 1980, it was reported that Gopi Ram plaintiff-respondent was dead. After making enquires about the death of Gopi Ram, an application was filed on June, 12, 1980. For bring in on record his legal representatives. Gopi Ram had died on April, 4, 1980. I.e., before the filing of the appeal and after the decision of the trial Court. Later on an application for condonation of delay was also filed. The Additional District Judge, before whom the appeal and the application came up for hearing, by judgment and decree dated May, 16. 1981. held that the appeal against a dead person was a nullity and also observed that the appellant was guilty of not making full and true disclosure of facts. As he had not mentioned the date of death Gopi Ram and, therefore he was disentitled to any relief. Consequently the appeal was dismissed. This is second appeal by the defendant.
2. After hearing learned counsel for the parties I am of the view the this appeal deserves to succeed. The lower appellate Court relied on Bai Pani Vankar v. Madhabhai Galabhai Patel. AIR 1953 Bom 356. In coming to the conclusion that appeal against a dead person is a nullity and the legal representative cannot be allowed to be substituted. Firstly that case is clearly distinguishable on facts. There the sole appellant was dead at the time of filing appeal and, therefore, the pleader who preferred the appeal could not be considered to have any authority to file the same, as the power of attorney in his favour lapsed by the death of the appellant was alive and out of the two respondents only one had died. In this regard it has been ruled in Mehar Singh v. Labh Singh. AIR 1932 Lah 305. Joginder Singh v. Krishan Lal. AIR 1977 Punj & Har 180. Chatur Prasad Bara Bacha v. Baijnath Prasad. AIR 1930 All 131 Doddamallappa Channabasappa Kari v. Gangappa Shiddappa Gulganji. AIR 1962 Mys 44. Ramjeewan v, Chand Mohammad. AIR 1976 Raj 65. And State of Himachal Pradesh v, Dhuru Ram. AIR 1981 Him Pra 34 that the death of one of the respondents after the decision of the Court below and before the filing of appeal does not render a nullity and the legal representatives of the deceased respondent can be brought on record under Section 153 of the Civil P. C. S. 153 of the Civil P. C. would be applicable to appeals also in view of S. 141. Read with O. 1. R. 10 and O. 41 R. 20(2) of the Code. Therefore, I am of the view that the appeal filed was not a nullity and the lower appellate Court had the jurisdiction to bring on record the legal representatives of the respondent who had died before the filing of the appeal and after the decision of the lower Court.
3. This brings me to the consideration of the point whether sufficient cause has been made out for bringing the legal representatives of Gopi Ram on record and for condonation of the delay. If Gopi Ram had died after the filing of the appeal, then the appellant had limitation of 90 days for bringing his legal representatives on the record and a further period of 60 days for having the abatement set aside. In the Rules and Orders of this Court. a rule has been made that it is no longer the duty of the appellant to bring on record the legal representative of a deceased respondent. The duty has been case on the legal representatives to apply for being brought on record. Therefore, in Punjab and Haryana, including the Union Territory of Chandigarh, if the legal representatives of a deceased respondent are not brought on record. At the instance of appellant within a period of 150 days from the date of death. The appeal does not abate and the same can be heard in the absence of the legal representatives. Hence if the death had occurred after the filing of the appeal, the question of abatement would not have arisen. The facts of the present as are that application of bringing on record the legal representatives was filed two months and 8 days after the death of Gopi Ram respondent. Which would have been well within time if the death had occurred after the filing of appeal and if High Court Rules and Orders had not absolved the appellant from filing such an application. Therefore, on the peculiar have to be taken instead of non-suiting the appellant on a technical ground. Accordingly I find it to be a fit case for condoning the delay in bringing on record the legal representatives of Gopi Ram deceased respondent.
4. It is true that in the application for bringing on record the legal representatives of Gopi Ram, the appellant did not mention the date of death, but that omission by itself did not justify the dismissal of application for condonation of delay outright. The Court below relied on decisions in writ jurisdiction. Which is an extraordinary jurisdiction and where it is expected from every litigant to place all facts before the Court and there also if material facts are withheld. Which if had been issued or ex parte stay would not have been granted. Only in those cases the Court refuses to exercise the writ jurisdiction. By omission to mention the date of death, the appellant did not gain in getting the rule nisi issued or in obtaining interim order, hence this point cannot stand in the way of the appellant.
5. For the reasons recorded above, this appeal is allowed, judgment and decree of the lower appellate Court dated May 5, 1981 are hereby set aside and the matter is remitted to that Court to restore the appeal to its original number and to decide the same on merits in accordance with law. The parties through their counsel re directed to appear before the Additional District Judge. Ambala on Sept. 14, 1982. There will be no order as to costs.
6. Appeal allowed.