Bhogilal Kirpashankar vs Darasha Kooverji Contractor

Norman Macleod, Kt., C.J.—We think the initial error was made by the trial Court when the present applicant applied to be put on the record in the place of Sorabji who was dead. At that time there was an appeal against an interlocutory order pending in the High Court. The learned trial Judge thought that on account of that appeal its functions were entirely suspended. Even if in the case of an interlocutory appeal, the High Court sends for the record for the purpose of dealing with that particular matter, for all other applications the suit-is pending in the trial Court. Therefore the trial Court had jurisdiction to entertain the application, since on the death of a party it is necessary to place his representatives on the record. It seems to me, therefore, that once we find that the trial Court failed to exercise its jurisdiction and that error is at the root of all later proceedings, it is really not necessary to consider why the applicant has been still unsuccessful in getting his name on the record in the place of the deceased Sorabji. There has been a failure to exercise proper jurisdiction. On these grounds, we think the rule must be made absolute with costs in this Court and in the lower appellate Court. Other costs will be costs in the cause. Rule made absolute.