Himachal Pradesh High Court
Leela Dutt Son Of Late Sh. Ram Dass vs Secretary Revenue Himachal ... on 2 June, 2022
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 2nd DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
.
REGULAR SECOND APPEAL No. 141 OF 2021
BETWEEN:
1. LEELA DUTT SON OF LATE SH. RAM DASS
SON OF SH. NARAIN DASS,
2. RATTAM CHAND, SON OF SH. ABHI DUTT
3. SURINDER DUTT SON OF SH. ABHI DUTT
4. DEV DUTT SON OF SH. RAM SAWROOP,
5. JAI DUTT SON OF SH. ABHI DUTT
6. RAMESH SON OF SH. INDER DUTT
7. SUNIL DUTT SON OF SH. ISHWAR ,
8. JAWAHAR LAL SON OF SH. BAL KRISHAN
9 a) RAJESH SHARMA(SON OF LATE
HARISH CHAND)
b) SMT. DAYA SHARMA (WIDOW OF LATE
HARISH CHAND),
c) RAHUL SHARMA (SON OF LATE
HARISH CHAND),
d) SMT. LATA SHARMA (DAUGHER OF
LATE HARISH CHAND)
10. a) REKHA SHARMA WIDOW OF LATE SH.
KAMLESH
b) AJAY SHARMA SONOF LATE SH.
KAMLESH SHARMA
c)SAPNA SHARMA DAUGHTER OF SMT.
REKHA SHARMA
11. KRISHAN DUTT SON OF SH. NARAIN DUTT
12. ROOP LAL SON OF SH. RAM DASS,
APPELLANTS
ALL RESIDENTS OF VILLAGE DAYARAG
BUKHAR, PARGANA QUINTANII, TEHSIL
AND DISTRICT SOLAN,HP.
(BY MR. VIPIN PANDIT, ADVOCATE)
::: Downloaded on - 08/06/2022 20:02:00 :::CIS
2
AND
STATE OF HIMACHAL PRADESH
THROUGH
.
(1) SECRETARY REVENUE HIMACHAL
PRADESH, GOVERNMENT OF H.P
(2) DISTRICT COLLECTOR, SOLAN, DISTRICT
SOLAN,HP.
RESPONDENTS
3 JAGDISH KUMAR SHARMA SON OF SH.
INDER DUTT
4 PREM DUTT SON OF SH. RAM DUTT,
5
VIDYA DUTT SON OF SH. DILA RAM
ALL RESIDENTS OF VILLAGE DAYARAG
BUKHAR, PARGANA QUINTANII, TEHSIL
AND DISTRICT SOLAN,HP. PROFORMA
RESPONDENTS
(MS. RAMEETA RAHI, ADDITIONAL
ADVOCATE GENERAL FOR R1 &2
whether approved for Reporting?
This petition coming on for orders this day, the Court delivered
the following:
JUDGMENT
This appeal has been preferred against judgment and decree
dated 20.11.2019, passed in Civil Appeal No.37S/13 of 2015, titled as Leela
Dutt & others vs. Secretary Revenue Himachal Pradesh and another.
2. In this appeal, Jagdish Kumar Sharma, Prem Dutt and Vidya
Dutt, who were appellants No.6,11 and 13 respectively in Civil Appeal No.
37S/13 before the Additional District Judge, Solan, have been arrayed as
proforma respondents. During their service, it has been reported that they
have expired during pendency of the said appeal.
.
3. Appellants have filed application bearing CMP No.11819 of 2021
for remanding the matter to First Appellate Court for deciding it afresh after
deciding the question of abatement.
4. First Appeal was filed on 6.11.2015 and was decided on
20.11.2019. Copies of death certificates placed on record with application
CMP No.11819 of 2021 indicate that Jagdish Chand, Prem Dutt and Vidya
Dutt had expired on 20.7.2019, 10.8.2017 and 26.11.2016 respectively. They
have expired during pendency of the appeal before First Appellate Court.
5. This Court, vide judgment dated 24.05.2021, passed in RSA
No.261 of 2019, titled as Jaishi Ram vs. Manohar Lal and others, after taking
into consideration relevant provisions of law as well as judgments passed by
this High Court previously and also pronouncements of the Supreme Court in
cases Gurnam Singh (Dead) through Legal Representatives and
others vs. Gurbachan Kaur (Dead) by Legal Representatives,
reported in (2017) 13 SCC 414; Sher Singh and others vs. Raghu Ram
and others, 1981 S.L.C. 25; Ram Rakha and others vs. Brahma Nand
and others, 1994 (Supp) S.L.C. 29; Jagdish vs. Ram Karan and others,
2002(1) Current Law Journal (H.P.) 232, referred in Dewana and
another vs. Gian Chand Malhotra and others, Latest HLJ 2011 (HP)
1420 and also judgments in Jaswant Singh vs. State of Himachal
.
Pradesh and others, 2015(2) Shim.L.C. 674; Jagan Nath and others vs.
Ishwari Devi, 1988 (2) Shim.L.C. 273; Karam Chand and others vs.
Bakshi Ram and others, 2002(1) Shim.L.C.9; and Gurnam Singh
(dead) by legal representatives and others vs. Gurbachan Kaur
(dead), (2017) 13 SCC 414, referred in Tara Wati and others vs. Suman
& others, Latest HLJ 2018 (HP) 1046, has held as under:
"9. It is well settled that a decree in favour of or against a
dead person is nullity. For non substitution of legal
representatives of deceased defendant, out of several defendants,
may cause abatement of appeal against the deceased defendant
or as a whole, depending upon the effect of non substitution of
legal representatives of deceased defendant on the relief claimed.
Appellant/plaintiff has set up a case of ignorance of death of
defendants.
10. In view of judgments relied upon by the appellant,
referred supra, an application for setting aside abatement and
substitution of legal representatives of deceased defendants
should have been made and dealt with by the Court in which
abatement occurred as abatement is automatic irrespective of
passing of or not passing of such order by the Court and
question whether suit to abate in toto or in part, has also to be
decided by the same Court where during pendency of the appeal
one of parties had expired before hearing the arguments and
where he was a necessary party to the lis and his legal
representatives have not been brought on record, and issues as
to whether there was sufficient cause for setting aside the
abatement or whether legal representatives of deceased are to
be brought on record or not in relation to a suit or appeal, at the
first instance, are also to be decided by the Court, in which the
suit or appeal was pending at the time of death of party and the
abatement took place.
6. Consequently, the judgment and decree passed by the Appellate
Court is quashed and set aside and case is remanded to first Appellate Court
with direction to allow the appellants to take consequential steps on the
.
death of Jagdish Kumar Sharma, Prem Dutt and Vidya Dutt (Appellant No.
6,11 and 13 in first appeal) and thereafter to decide the question of
substitution of their legal representatives, if any; and question of exemption
to the plaintiffs/appellants from necessity of substituting the legal
representatives of deceased appellants; and also question of abatement, if
any, as the case may be on the basis of steps so taken by the appellants.
Needless to say that first Appellate Court shall consider and decide all the
pleas and counter pleas of the parties after affording the parties due
opportunity of being heard.
7. The contesting parties are directed to ensure their
appearance through their learned counsel representing them before First
Appellate Court on 30.6.2022. It is made clear that no fresh notice shall be
issued to the parties by learned first Appellate Court for ensuring their
presence. First Appellate Court shall hear the contesting parties and decide
the appeal afresh in accordance with law.
8. Consequential steps on account of death of Jagdish
Kumar, Prem Dutt and Vidya Dutt (Appellants No. 6,11 and 13 in first
appeal) shall be taken by the plaintiffs/appellants preferably on the first date
of hearing, but not later than two weeks thereafter. Reply thereto, if any also
be filed within four weeks, positively and the first Appellate Court shall make
an endeavor to decide the application and appeal preferably on or before
30.11.2022.
.
Appeal stands disposed of in aforesaid terms alongwith
pending applications.
Copy of judgment be transmitted to learned first
Appellate Court for record/compliance..
(Vivek Singh Thakur),
2 nd
June, 2022 Judge.
(veena)
