Lrs Of Manohar Lal Maloo vs Bardi Chand And Ors
2021 Latest Caselaw 7495 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 249/2017

Lrs Of Manohar Lal Maloo S/o Shri Laxmi Narayan Maloo

----Appellant Versus

1. Bardi Chand S/o Mohan Lal Chhipa, R/o- Chittorgarh.

2. Mangi Lal S/o Narayan Chhipa, R/o- Chittorgarh.

3. Chand Mal S/o Mohan Lal Chhipa, R/o- Chittorgarh.

Representatives Of Hindu Chhipa Banshi Samaj, Chittorgarh

4. Prabhu Lal S/o Ramchandra Chhipa, R/o- Chittorgarh.

5. Ghanshyam Anchhera S/o Bardi Chand Anchhera, R/o-

Sector No. 2, Near Ramkui, Gandhi Nagar, Chittorgarh.

6. Banshi Lal S/o Mohan Lal Jadiya, R/o- 14-A, Sukhadia Market, Chittorgarh.

                                                                 ----Respondents


For Appellant(s)          :     Mr. A.K. Babel
For Respondent(s)         :     Mr. N.K. Rastogi



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                     Order

17/03/2021

     The   matter    comes        upon      various       applications    filed   by

respondents and appellants.

Application (I.A. No. 1/2020) has been filed by respondents

No.2, 4, 5 & 6 inter alia indicating that respondent No.1 - Bardi

Chand had died on 11.01.2018 and respondent No.3 - Chand Mal

had died on 25.10.2017 and as application was not filed for

bringing on record their legal representatives, the appeal is liable

to be dismissed as a whole.

(2 of 4) [CSA-249/2017]

Further submissions have been made that appellant No.4 -

Smt. Sita Devi has died and her legal representatives have not

been brought on record / no steps have been taken and,

therefore, the appeal deserves to be dismissed.

Another application (I.A. No. 2/2020) has been filed by

appellants seeking deletion of names of appellant No.4 and

respondents No.1 & 3.

It is inter alia indicated that as legal representatives of

appellant No.4 are already on record, her name may be deleted

from the array of parties and as the suit was filed against the

defendants / respondents in representative capacity i.e. as

representatives of Hindu Chhipa Namdev Banshi Samaj,

Chittorgarh and respondents No.1 & 3 have died, their names may

be deleted from the array of parties.

Another application (I.A. No. 3/2020) has been filed by

respondents No.2, 4, 5 & 6 inter alia indicating that as order

dated 08.07.2020 passed by this Court, admitting the appeal has

been passed against dead persons i.e. respondents No.1 & 3 who

had died on 11.01.2018 & 25.10.2017, the order deserves to be

recalled as the appeal had already abated on the date, the order

was passed by the Court.

Reply to the application (I.A. No. 1/2020) has been filed

inter alia indicating that as the suit was filed in representative

capacity after complying with the requirements of Order I Rule 8

CPC, by death of respondents No.1 & 3, the appeal can't abate

and for the same reason learned counsel for the appellants

submitted that the names of respondents No.1 & 3 may be

deleted.

(3 of 4) [CSA-249/2017]

Reply to the application (I.A. No. 3/2020) has also been filed

reiterating the submissions that as the suit was filed in

representative capacity, by death of respondents No.1 & 3, it

cannot be said that the appeal has abated and, therefore, the

application (I.A. No. 3/2020) deserves to be dismissed.

Learned counsel appearing for the respondents No.2, 4, 5 &

6 reiterated the submissions that irrespective of the fact that suit

was filed under Order I Rule 8 CPC once the respondents No.1 & 3

have died and steps have not been taken, the appeal abates and,

therefore, the same deserves to be dismissed and in any case the

order dated 08.07.2020 deserves to be recalled.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

A perusal of the cause title of the suit indicates that

defendants Prithviraj, Bardi Chand, Ram Chandra, Mangi Lal and

Chand Mal were impleaded as representatives of Hindu Chhipa

Namdev Banshi Samaj, Chittorgarh, proceedings under Order I

Rule 8 CPC were under taken by the trial court, which is reflected

from the judgment dated 06.08.2005. In view thereof, it is

apparent that the said respondents were impleaded as

representatives of the Hindu Chhipa Namdev Banshi Samaj,

Chittorgarh.

It is well settled that in case proceedings are initiated under

Order I Rule 8 CPC in a suit of representative capacity by death of

few of the parties either plaintiff or defendants, the suit does not

abate as the other representatives against whom the proceedings

have been initiated, are still on record and they continue to

represent the entity. In view thereof, the submissions made

indicating that the appeal had abated on account of death of

(4 of 4) [CSA-249/2017]

respondents No.1 & 3 have no substance. The application (I.A. No.

1/2020) is, therefore, dismissed.

So far as application (I.A. No. 3/2020) is concerned, as the

same is based on the submissions that the appeal had abated and

it has been determined here-in-before that the appeal does not

abate, the said application is also dismissed.

The application filed by the appellant (I.A. No. 2/2020) is

allowed. The name of appellant No.4 is ordered to be deleted from

the array of parties.

An endorsement in this regard be made by the office in the

cause title.

Further the names of respondents No.1 & 3 are ordered to

be deleted from the array of parties.

The amended cause title be filed within a period of 10 days.

(ARUN BHANSALI),J 58-Sachin/-

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