Allahabad High Court
Kadhilay Ram vs Ram Prasad Pal on 9 July, 2019
Bench: Ved Prakash Vaish
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 22
Case :- SECOND APPEAL No. - 301 of 2008
Appellant :- Kadhilay Ram
Respondent :- Ram Prasad Pal
Counsel for Appellant :- Ravi Nath Tilhari,Ravi Nath Tilhari
Counsel for Respondent :- Govind Saran Nigam,Pradeep Kumar Tripathi,Sandeep Kumar Pal,Santosh Kr. Yadav,Vishal Kumar Yadav
Hon'ble Ved Prakash Vaish, J.
1. List has been revised.
2. Heard Sri R.N. Tilhari, learned counsel for the appellant and Sri Pradeep Kumar Tripathi, learned counsel for the respondent.
3. Learned counsel for the respondent has pointed out that the sole respondent, Sri Ram Prasad Pal died on 08.01.2019, but no application for substitution of his LRs has been filed. Learned counsel for the respondent also submits that he has moved an application for abatement on 22.05.2019, but no application for substitution of his LRs has been filed till date.
4. On perusal of file, it is revealed that vide order dated 25.03.2019, notice was issued to the respondent to engage another counsel.
5. As per office report dated 01.05.2019, the sole respondent is dead. The report of learned District Judge dated 24.04.2019 is accompanied by photocopy of death certificate of Sri Ram Prasad Pal (sole respondent) and as per copy of death certificate, Ram Prasad Pal died on 08.01.2019.
6. On 02.05.2019, learned counsel for the appellant sought time to complete his instructions and to file an appropriate application.
7. Thereafter, an application for abatement bearing C.M. Application No.65041 of 2019 has been filed on behalf of the applicant on 22.05.2019. Copy of said application was supplied to learned counsel for the appellant. However, no application for substitution of LRs has been filed till date.
8. On perusal of the provision of order XXII Rule 3(2) read with Order 22 Rule 11 of the Code of Civil Procedure, 1908, it is manifestly clear that it is incumbent to seek substitution of legal representatives/ legal heirs of the deceased respondent, if the right to sue survives. The application for substitution of the legal representatives of the deceased respondent has to be filed within the prescribed period of limitation. In case, no such application is filed, the appeal will abate.
9. However, sub-rule-2 of Rule 9 of Order XXII of C.P.C. enables the appellant/plaintiff to apply for setting aside abatement within the prescribed period of limitation. In case the application for substitution and for setting aside the abatement is not filed within the prescribed period of limitation, the abatement takes place on it own force and no specific order for abatement is necessary. In this regard reliance can be placed on a decision of the Hon'ble Supreme Court in the case of "Madan Naik (dead by LR's) and others Vs. Hansubala Devi and others", AIR 1983 Supreme Court 676. The Hon'ble Supreme Court, in para 5 observed as under:-
"Order 22 Rule 11 of the Civil P.C. read with O.22, R.4 makes it obligatory to seek substitution of the heirs and legal representatives of deceased respondent if the right to sue survives. Such substitution has to be sought within the time prescribed by law of limitation. If no such substitution is sought, the appeal will abate. Sub-rule (2) of R.9, O.22 enables the party who is under an obligation to seek substitution to apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit which would include an appeal, the Court shall set aside the abatement. Now where an application for setting aside an abatement is made, but the Court having not been satisfied that the party seeking setting aside of abatement was prevented by sufficient cause from continuing the appeal, the Court may decline to set aside the abatement. Then the net result would be that the appeal would stand disposed of as having abated. It may be mentioned that no specified order for abatement of a proceeding under one or the other provision of O.22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under O.22, R.9 C.P.C. for setting aside the abatement."
10. In the present case, the sole respondent, Ram Prasad Pal died on 08.01.2019, but no application for substitution of his LRs has been filed till date. Thus, the appeal is liable to be abated.
11. Accordingly, the appeal is dismissed as abated.
(Ved Prakash Vaish)
Judge
Order Date :- 09.07.2019
cks/-
