Jharkhand High Court
Sanoj Kumar Pandey vs Chanchala Devi on 23 January, 2023
1 Second Appeal No. 58 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 58 of 2012
Sanoj Kumar Pandey, adopted son of Late Most. Bimla Devi, W/o Late
Sudama Pandey, resident of village- Tekra, P.O. Pathrol, P.S. Karon,
District- Deoghar ... Appellant
-Versus-
1. Chanchala Devi, W/o Late Kishori Pandey
2. Sumitra Devi, D/o Late Kishori Pandey and wife of Sri Sukhdeo
Pandey, resident of village & P.O. Saptar, P.S. Madhupur, District-
Deoghar
3. Purshottam Pandey
4. Shiv Narayan Pandey
Both sons of late Badri Narayan Pandey
Respondent nos. 1, 3 and 4 are residents of village Tekra, P.O. Pathrol,
P.S. Karon, District- Deoghar
5. Subhadra Devi, W/o Upendra Nath Pandey and D/o Late Badri
Narayan Pandey, resident of village Rohini, P.O. Rohini, P.S. Jasidih,
Sub-Division & District- Deoghar
6. Brinda Devi, D/o Late Shankar Pandey and W/o Satya Narayan
Pandey, resident of village & P.O. Dharampur Pabia, P.S. Narayanpur,
Sub-Division- Jamtara, District- Dumka
7. Haranand Kumar Pandey, adopted son of Late Laveshwari Devi, W/o
Late Basudeo Pandey, resident of village- Tekra, P.O. Pathrol, P.S.
Karon, District- Deoghar ... Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mr. Baban Prasad, Advocate
For the Respondent :
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07/23.01.2023 This second appeal has been filed being aggrieved and dissatisfied
with the judgment dated 19.04.2012 and decree dated 02.05.2012 passed
by the learned District Judge No.2, Deoghar in Title Appeal No.41/2003
partly reversing/modifying the judgment and decree dated 10.05.1999
(decree sealed and signed on 22.05.1999) passed by the learned Sub-
Judge-III, Deoghar in Title (Partition) Suit No.129/1996.
2. This second appeal has been filed on 16.06.2012 along with I.A.
No.1887 of 2012 seeking leave to proceed with appeal arraying heirs of
Kishori Pandey, plaintiff/respondent no.1 who died on 16.04.2012 i.e. three
days before passing of the judgment and decree under title appeal.
3. Learned counsel appearing for the appellant submits that now he has
filed supplementary affidavit stating therein that after performing Shradh
Karm of deceased plaintiff/respondent no.1, the appellant had contacted his
counsel and informed regarding the death of plaintiff/respondent no.1 then
the appellant was suggested that since the judgment has been pronounced
on 19.04.2012, hence the Court has become functus officio as such nothing
can be done in the case here. On this ground, learned counsel appearing for
the appellant submits that the prayer made in the said I.A. may kindly be
allowed.
4. Order XXII Rule 11 of the Code of Civil Procedure read with Order
XXII Rule 4 makes it obligatory to seek substitution/array of the heirs and
legal representatives of deceased respondent if the right to sue survives.
Such substitution/array has to be sought within the time prescribed by law
of limitation. If no such substitution/array is sought, the appeal will abate.
Sub-rule (2) of Rule 9 of Order XXII enables the party who is under an
obligation to seek substitution/array 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 is crystal clear that no specific order for abatement of a
proceeding under one or the other provision of Order XXII is envisaged, the
abatement takes place on its own force by passage of time.
5. Learned counsel appearing for the appellant has chosen not to press
that I.A. since 2012 and he is pressing the I.A. in the year 2023.
6. Admittedly, the original plaintiff died on 16.04.2012 and during the
pendency of this second appeal, respondent no.1 has also died. The
appellant is defendant in the partition suit. Moreover, there are partly
concurrent findings of the learned courts. How the interest of the appellant
is involved in the property in question, that is not brought on the record and
in that view of the matter, no relief can be extended to the appellant.
7. Accordingly, this second appeal is dismissed.
8. Consequently, I.A. No.1887 of 2012 is also dismissed.
(Sanjay Kumar Dwivedi, J.)
Ajay/
