Lal Singh vs Gurnam Singh and Others

This order will dispose of F. A. Os. Nos. 965, 966 and 967 of 1984, as the question involved is common in all the cases.

Pala singh Son of Kishan Singh, filed three appeals against the judgment and decree of the trial Court passed against him. During the pendency of the appeals, he died on Sept. 27, 1983. Applications, dt. Mar. 9, 1984, were filed on behalf of Lal Singh, his son, for bringing on record his legal representatives. The applications were contested on behalf of the respondent. The Additional District Judge (I), Bhatinda, dismissed the said applications with the following observations:

"The learned counsel for the appellant on having been confronted with such unassailable document (death certificate showing Pala Singh having died on Sept. 27, 1983) could not and did not urge any meaningful argument for controverting the date of death of Pala Singh mentioned in this death certificate."

As a result, the three appeals were dismissed as having abated.

Admittedly, Pala Singh died on Sept. 27, 1983, as per the death certificate produced by the respondent themselves. Of course, the applications were filed after the appeals had abated. Under the circumstances, the matter should have been decided after allowing the parties to lead evidence as to whether there was sufficient cause for setting aside the abatement or not. No such course was adopted by the lower appellate Court. Even if in the applications moved on behalf of Lal Singh, no such prayer was made, even then the said applications to bring on record the legal representatives of Pala Singh, deceased, after the time prescribed therefore by law should have been treated as the applications to set aside the abatement of the appeals also. It was so observed in Bachan Ram and Others Vs. The Gram Panchayat Jonda and Others, . The relevant observations in the said case are-

"An application made to bring the legal representatives of the deceased-defendant on record after the time prescribed therefore by law should ordinarily be treat as an application to set aside the abatement of the suit which has been taken place even though it is not asserted that the delay was due to any reasonable cause. The evidence about the sufficient cause for the delay can be produced in the appellate Court and all that is necessary is that the Court should feel satisfied that discretion should be exercised in favour of the party seeking the setting aside of the abatement."

While dealing with the question of abatement in paragraph 8 of the judgment, the Supreme Court observed in Union of India (UOI) Vs. Ram Charan and Others, as follows,--

"The provisions of the Code are with a view to advance the cause of justice. Of course, the Court in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance."

Under the circumstances, all the appeals succeed and are allowed. The orders under appeal are set aside. The case are sent back to the District Judge, Bhatinda, to decide the question of setting aside the abatement of the appeals after allowing the parties to lead necessary evidence. The parties have been directed to appear before him on May 16, 1985.

Appeals allowed.