Agya Puri (Deceased) Chela Albel, Puri Mahant and Mohtam Smadh Alakh Puri Sadh Sanayasi vs Nahar Puri Karnail Puri

Surinder Singh, J.—This appeal has to succeed on a short around, but before considering the appeal, it will be appropriate to briefly notice the facts, giving rise to the same. A suit was filed by Gya Puri appellant against Saudagar Puri and two others, (sic) possession of a plot of land, situated in village Gholia Khurd. During the trial of the suit, an application was moved on December 21, 1997, by Nazar Puri, one of the defendants that Saudagar Puri defendant (sic) had died on July 23, 1967, and the appellant who is the real uncle (sic) next-door neighbour was aware of this death. In spite of this fact, to bring the legal representative of Saudagar Puri, on the (sic) had been made. The defendant-appellate, therefore, prayed (sic) suit be dismissed as having abated. The prayer was, however, purposed on behalf the appellant, who contented by means of an application dated December 22, 1967, that he came to know about the death of Saudagar Puri only when he was faced with the application moved by the defendant Nazar Puri. It was, therefore, prayed that the abatement may be set aside. The trial Court framed two preliminary issue in order to dispose of this matter, and after considering the evidence, held that the suit had abated. The suit was, thus, dismissed as such. The appellant filed an appeal against the aforesaid decision of the trial Court which was also dismissed by the Additional District Judge, Ferozepur. The present second appeal has, therefore, been filed to impugn the two decisions referred to above.

The Learned Counsel for the appellant, Mr. Ajay Kumar Mittal has submitted that the Courts below had not considered the matter in its true perspective. It is submitted that in so far as the defendant-respondents are concerned, out of the three defendants, namely, Saudagar Puri, Nazar Puri, and Karnail Puri, only one of them, i.e. Saudagar Puri had died and the other two defendants were already on the record The prayer made on behalf of the respondents in the application filed for this purpose was that the legal representatives of Saudagar Puri may be brought on the record, these legal representatives being Nazar Puri and Karnail Puri, who were already on the record, and one Shrimati Bhagwan Kaur alias Bhano, the sister of the deceased-defendant. The Courts below had merely considered the fact that the suit was filed against all the three defendants in their joint capacity and their interest not being separable, if no legal representatives is brought on the record after the death of one of the defendants, the whole suit must abate. The Courts below, however, did not take into account the dictum of law as laid in Mahabir Prasad Vs. Jage Ram and Others, by the Hon''ble Supreme Court. In the said authority, it was held that where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. It was further held that even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. These observations are directly attracted to the facts of the present case. As already noticed, at least two of the legal representatives of Saudagar Puri, namely, Nazar Puri and Karnail Puri, were already on the record as defendants, though in another capacity. The suit could not, therefore, be ordered to abate, merely on the ground that no application to bring on record all the legal representatives of Saudagar Puri was made within the prescribed period of limitation.

Mr. I.S. Gujral, Learned Counsel for the respondents has, however, tried to take benefit from the observations in Babu Sukhram Singh Vs. Ram Dular Singh and Others, and Dwarka Prasad Singh and others v. Harikar Prasad Singh AIR 1973 S.C. where in all that was held, was that the interest of the defendants being joint, in case of death of one of the defendants suit against all of them would abate. In both these authorities, ever, the circumstances that some of the legal representatives, of the deceased-defendant were already on the record, had not been taken into consideration. These authorities would, therefore, be of no assistance in so far as the present case is concerned.

In the result, this appeal succeeds and the judgments and decree of the Courts below are set aside. The suit having been dismissed on a preliminary point which has been found in favour of the appellant, the same is remanded to the trial Court, with the direction that it shall proceed with the suit on merits in accordance with law, after notice to both the parties. In the circumstances of the case, there shall be no order as to costs of this appeal.