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2014 DAILYLAW 1531 (HP)

Shri Rameshwar v. Dasodha Devi

2014-10-29

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. Respondents before the learned first Appellate Court namely, Shobhia, Bhagat Ram and Durga Singh died, respectively on 28.1.2001, 23.2.2001 and 21.5.2000. Their demise occurred during the pendency of the appeal before the first Appellate Court. However, in the absence of theirs being substituted by their LRs, the learned First Appellate Court proceeded to pronounce on 31.12.2004 judgment and decree in Case No. 1 FT/13 of 2004/97. Obviously at that stage, an enjoined necessity was cast upon the learned counsel for the appellant to move an appropriate application before the learned first Appellate Court to cause effectuation of substitution of the deceased respondents aforesaid, who died during the pendency of the appeal before the first appellate Court, by their LRs. However, no such appropriate application was preferred by the counsel for the appellant before the first Appellate Court for effecting substitution of deceased respondents, aforesaid, by their LRs. The said infirmity is concerted to be cured by the learned counsel for the appellants in appeal before this Court by his taking to move an appropriate application under Order 22, Rule 4 (4), contemplating therein, an empowerment inherent in this Court for exempting the necessity of begetting substitution of deceased respondents in the suit or appeal, in the proven eventuality of theirs being proceeded against ex-parte or theirs having not contested either the suit or appeal on merits. The contention which is addressed by the learned counsel for the appellants in appeal is unacceptable, for the simple reason that the infirmity which permeates the judgment and decree rendered by the first Appellate Court is constituted by it having been rendered against dead respondents, who remained un-substituted by their LRs. Consequently the said infirmity is incurable at the stage of Regular Second Appeal preferred at the instance of learned counsel for the appellants, moreso when the pronouncement against dead persons renders the judgment and decree vitiated or its being rendered non-est. Reliance if any, upon the provisions of Order 22, Rule 4 CPC could have been placed by the learned counsel for the appellants before the first appellate Court where the demise of aforesaid occurred and that too at a stage preceding the rendition of the impugned judgment and decree by it. Therefore, reliance as now placed by the learned counsel for the appellants to cure the infirmity aforesaid is inappropriate and is liable to be discountenanced. Therefore, reliance as now placed by the learned counsel for the appellants to cure the infirmity aforesaid is inappropriate and is liable to be discountenanced. Consequently, the judgment and decree rendered by the learned First Appellate Court is gripped with the vice of it being null and void besides its being non-est having been rendered against dead persons who remained un-substituted by their LRs. 2. Accordingly the judgment and decree passed by the learned First Appellate Court is quashed and set aside and the matter is remanded to the first Appellate Court where the demise of the respondents aforesaid occurred. Appropriate application(s) be filed before the Court concerned under the appropriate provisions of law, which is/are directed to be decided by the learned first Appellate Court in accordance with law and thereafter, it shall proceed to decide the appeal within a period of three months. Parties are directed to appear before the learned first appellate Court on 18.11.2014. Records be sent forthwith. All pending application(s) stand disposed of.