Kasturi Bai and Others vs Kanhaiyalal

S. Samvatsar, J.

This appeal is filed by the defendants/tenants against the judgment and decree dated 18.12.1996 passed by Additional District Judge, Sheopurekalan in Civil Appeal NO. 2A/89, which was preferred by the appellants/ defendants against the judgment and decree dated 29.9.1988 passed by First Civil Judge Class-2, Sheopurekalan in Civil Original suit NO. 203A/88.

Brief facts of the case are that plaintiff Kanhaiyalal filed a suit against the original defendant Tulsiram for ejectment on the ground that the suit accommodation was taken by him from Municipal Council, Sheopurekalan. Thus, admittedly the suit accommodation was owned by Municipality. After taking the said property on lease from Municipality, the tenant Kanhaiyalal let the said property to the defendant on rent at the rate of Rs. 10/- per month. The plaintiff filed the present suit for ejectment of the said premises.

Trial Court after recording evidence and hearing the arguments decreed the suit. Against which a First Appeal was preferred which was also dismissed. Hence, this second appeal.

The second appeal filed by the appellants/tenants is admitted by this Court on 5.3.1997 on following two substantial questions of law:-

(i) Whether the suit for eviction on the ground u/s 12 (1) (e) of the M.P. Accommodation Control Act by tenant against sub-tenant is maintainable ?

(ii) Whether after the death of sub-tenant, any decree passed against a dead person without bringing legal representatives on record, shall be deemed to be void ?

The first submission raised by the leaned counsel for the appellants is that Tulsiram, who was the sole defendant in the case died on 31.8.88, i.e., before the arguments were heard by the trial Court. The evidence of the parties was closed on 23.9.88; the arguments of the parties were heard on 24.9.98 and the judgment was passed by the trial Court on 29.9.88. The learned counsel for the appellants, in view of the aforesaid submission, submitted that the judgment of the trial Court is nullity, as the sole defendant died much before the arguments were heard by the trial court.

The fact about the death of the sole defendant could not be brought on record. It may be due to lack of knowledge about the death to the Advocates appearing for the parties. First Appeal was filed by the legal representatives of the deceased-defendant after coming to know about the decree. One of the grounds raised before the first appellate Court was that the decree against a dead person is nullity. The first appellate Court rejected the said objection on the ground that it was the duty of the counsel for the defendant to declare the death as per the provisions of Order XXII Rule 10-A of the Code Civil Procedure, which castes a duty on the counsel to declare the death of his client. The declaration of death under Rule 10-A only provides sufficient cause for condoning the delay in filing the application. It is a well-settled law that abatement is automatic and the period starts from the date of the death of the deceased party.

Leaned counsel for the respondent urged that in view of Order XXII Rule 6 of the Code of Civil Procedure, Tulsiram died after hearing of the case, as the evidence of the parties was closed during the life time of Tulsiram. Hearing of the argument according to him is not the date of hearing and, therefore, in view of Order XXII Rule 6 of the Code, it was not necessary for the plaintiff to bring legal representatives of sole defendant/deceased Kanhaiyalal and the decree binds the legal representatives of the deceased.

Now the question before me is whether hearing of arguments can be said to be the date of hearing ? The CPC nowhere lays down any stage in the suit for hearing the arguments. However, the High Court Rules provide that the arguments should be heard before pronouncement of the judgment. In view of the said fact, according to the learned counsel for the appellants, it cannot be said that Tulsiram died after hearing was over. For this purpose, he relied on the judgment of Supreme Court in the case of N.P. Thirugnanam (D) by L.Rs., Vs. Dr. R. Jagan Mohan Rao and others, ; and, Sain Dass v. Devi Dass and others, reported in AIR 1973 J&K 70. Both these cases take a view that if the defendant dies after the arguments are concluded and before judgment is pronounced, the suit does not abate, but in the present case the arguments were not concluded as is clear from the order-sheets recorded by the trial Court and, therefore, it cannot be said that the hearing of the case was over.

In such circumstances, the decree passed by the trial Court was liable to be set aside. However, since the legal representatives of the deceased have already come on record by way of filing an appeal, it cannot be said that the proceedings stand abated. However, on the date when judgment was pronounced, none of the legal representatives of the deceased were on record and. therefore, in my opinion, the decree of the trial Court which is passed against a dead person is nullity and in view of that, it is necessary for me to remand the case to the trial Court with a direction to the trial Court to hear the arguments of the parties after bringing the legal representatives on record and pass fresh order in accordance with law. The question NO. (i) answered accordingly.

In view of the answer to question NO. (i). it is not necessary for me to decide the question NO. 2, which is about the maintainability of the suit. The trial Court will decide the suit afresh and at that time the Court may decide this objection

In view of the fact that the legal representatives of deceased Kanhaiyalal have preferred the appeal, it is not necessary for the trial Court to issue notices to them and they will appear before the Court on the date fixed by this Court. On that date the plaintiff will move a formal application for bringing the legal representatives on record, which will be allowed by the Court on the same day and the arguments of the case will be heard within 15 days from the date of appearance.

The parties are directed to appear before the trial Court on 19th August, 2002. The trial Court is expected to dispose of the suit within a period of one month from that date.

Thus, the appeal stands allowed with no order as to costs and the judgment and decree of both the courts below are set aside. The case is remanded back to the trial Court with the directions as aforesaid. Records of the Courts below be immediately sent to the Courts below.