# Abdul Sattar Defendant v. Ram Rakshpal Plaintiff

- **Citation:** (2006) 2 ILRA 949
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-04-27
- **Case number:** Second Appeal No. 626 of 2005
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-sattar-defendant-v-ram-rakshpal-plaintiff-40701
- **Pages:** 4

## Headnote

Code of Civil Procedure Order 22 r 4
readwith High Court Rules-Chapter X
rule-3-Appeal by dead person-affidavit
sworn on 5.7.05-On 3.8.2005 reported
by Stamp Reporter showing limitation
upto 3.8.2005-appeal presented before
court on 1.8.05 in the meantime on
17.7.05 sole appellant died-on 8.8.05
substitution
application
filed-cause
shown
sufficient-delay
in
filing
application
condoned-substitution
application allowed.

Held: Para 7

In the instant case, two applications
under Chapter X Rule 3 of the High Court
Rules supported by an affidavit has been
brought on record seeking permission to
array the legal representatives of the
deceased-appellant Abudl Sattar as the
appellant nos. 1/1 to 1/7. The Judgment
and decree passed in the first appeal is
19.4.2005. The certified copy of the
decree appended with the appeal shows
that it was prepared on 3.5.2005 and the
appellant died subsequent to the passing
of the judgment and preparation of the
decree on 17.7.2005. In fact the appeal
was also reported at the time when the
appellant was alive and, therefore, I
come to a conclusion that this is a fit
case where the benefit of Chapter X Rule
3 of the High Court Rules is available to
the present appellant.
Case law discussed:
AIR 1953 AHO 97
AIR 1976 Alld.-444
2005 (98) RD-636
AIR 1976 Goa-54
AIR 1964 Mysore-293
2(V.61 C-2) C.
AIR 1982 Bomb.
AIR 1934 Alld-25

## Text

2 All] Abdul Sattar V. Ram Rakshpal
949
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2006

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Second Appeal No. 626 of 2005

Abdul Sattar ...Defendant-Appellant
Versus
Ram Rakshpal ...Plaintiff-Respondent

Counsel for the Appellant:
Sri P.P. Srivastava
Sri Suneet Kumar

Counsel for the Respondent:
Sri K.M. Garg

Code of Civil Procedure Order 22 r 4
readwith High Court Rules-Chapter X
rule-3-Appeal by dead person-affidavit
sworn on 5.7.05-On 3.8.2005 reported
by Stamp Reporter showing limitation
upto 3.8.2005-appeal presented before
court on 1.8.05 in the meantime on
17.7.05 sole appellant died-on 8.8.05
substitution
application
filed-cause
shown
sufficient-delay
in
filing
application
condoned-substitution
application allowed.

Held: Para 7

In the instant case, two applications
under Chapter X Rule 3 of the High Court
Rules supported by an affidavit has been
brought on record seeking permission to
array the legal representatives of the
deceased-appellant Abudl Sattar as the
appellant nos. 1/1 to 1/7. The Judgment
and decree passed in the first appeal is
19.4.2005. The certified copy of the
decree appended with the appeal shows
that it was prepared on 3.5.2005 and the
appellant died subsequent to the passing
of the judgment and preparation of the
decree on 17.7.2005. In fact the appeal
was also reported at the time when the
appellant was alive and, therefore, I
come to a conclusion that this is a fit
case where the benefit of Chapter X Rule
3 of the High Court Rules is available to
the present appellant.
Case law discussed:
AIR 1953 AHO 97
AIR 1976 Alld.-444
2005 (98) RD-636
AIR 1976 Goa-54
AIR 1964 Mysore-293
2(V.61 C-2) C.
AIR 1982 Bomb.
AIR 1934 Alld-25

(Delivered by Hon. Mrs. Poonam Srivastava. J.)

1. Heard Sri P.P. Srivastava, Senior
Advocate assisted by Sri Suneet Kumar,
learned counsel for the appellant and Sri
K.M. Garg, Advocate for the plaintiffrespondent.

2. An objection has been raised at
the very out set regarding maintainability
of this second appeal by Sri K.M. Garg on
the ground that the appeal was instituted
by a dead person. Sri P.P. Srivastava
appearing for the defendant-appellant has
brought to my notice the relevant dates
relating to the present second appeal. The
plaintiff-respondent instituted a suit No.
134 of 1989 before the Civil Judge
(Junior Division), Bijnor for recovery of
possession, damages and mesne profit at
the rate of Rs.500/- per month along with
180/0 interest. The trial court decreed the
suit in part, for recovery of possession and
mesne profit at the rate of Rs.20/- per
month with 18% per annum. The'
defendant-appellant preferred an appeal
vide Civil Appeal No. 25 of 2003 which
was dismissed vide judgment and decree
dated 19.4.2005 by the Additional District
Judge, Bijnor. The present second appeal
was prepared and affidavit filed in support
of the stay application was sworn on
5.7.2005. The appeal was reported on
950 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
6.7.2005. It was reported that the
limitation of the appeal is up till 3.8.2005.
The appeal was presented on 1.8.2005. In
the intervening period, when the appeal
was reported and it was presented before
the Court, within limitation, the appellant
died on 17.7.2005. The order sheet dated
4.8.2005 shows that the appeal came up
before the Court for the first time on
4.8.2005 and thereafter it was adjourned
on a number of dates. It transpires from
the record that on 8.8.2005 a substitution
application under Chapter X Rule 3 of the
High Court Rules read with Order 22
Rule 4 C.P.C. was moved. On 22.8.2005,
this application came up before the Court.
Counsel
for
the
plaintiff-respondent
accepted the notice and prayed time to file
a counter affidavit. Subsequently, another
application under Section 151 C.P.C. was
filed
and
the
Court
directed
the
application along with accompanying
affidavit to be kept on record on
22.8.2005. Another application under
Section 5 of the Indian Limitation Act
was also filed for condonation of delay.
Simultaneously on the same day another
application under Chapter X Rule 3 of the
High Court Rules read with Section 151
C.P.C. was filed, to which counter and
rejoinder affidavits have been exchanged.
Before the appeal was heard on merits,
the respective counsel for the parties were
heard at length on the question of
maintainability of this appeal. In the
circumstances, I proceed to decide the
substitution
application
and
also
application under Chapter X Rule 3 of the
High Court Rules read with Section 151
C.P.C. Order 22 C.P.C. deals with the
substitution proceeding to be adopted on
the death, marriage and insolvency of the
parties.

3. Sri K.M. Garg appearing for the
plaintiff-respondent
has
emphatically
stated that at the time when the appeal
was presented, admittedly, the sole
defendant-appellant was dead and since
the appeal was presented by a dead
person, it is a nullity and IH 1 subsequent
application
for
substitution
can
be
entel1aincd The submission on behalf of
the
plaintiff-respondent
is
that
the
provisions
or
Order
22
C.P.C.
is
applicable in a pending proceeding and
not III all appeal which was instituted by
a person who was already dead, and,
therefore, since the appeal is a nullity, the
subsequent application also can not be
entertained. A number of decisions has
been relied upon by Sri K.M. Garg, M/s
Nevandram Javermal Vs. Devikabai
Haridas Gandhi and others. AI.R. 1982
Bombay. 589. Bala Prasad Vs. Radhey
Shyam
and
another,
A.I.R.
1934
Allahabad, 25, Chitradhar Gogoi and
others Vs. Lalit Chandra Gogoi and
others, A.I.R 1974 Gauhati 2 (V 61 C
2). C. Muttu Vs. Bharath Match
Works, Sivakasi, A.I.R. 1964 Mysore,
293 (V 51 C 73), The Temple of Shri
Shantadurga Calangutcarina, Nanora
and others Vs. Macario Francisco Jose
Duarte and another, A.I.R. 1976 Goa,
Daman
and
Diu,
54.
Cuttack
Municioality Vs. Shvamsundar Behera,
A.I.R. 1977 Orissa, 137, Banarasi Vs.
Smt. Savitri Unadhyay and others,
2005 (98) RD, 636 and Smt. Jagrani
(Dead)
throught
Lrs.
Vs.
IInd
Additional District Judge, Jhansi. 2005
(98) RD, 636.

4. Sri P.P. Srivastava has placed
reliance on a decision of this Court in the
case of Smt. Prempiari and others Vs.
Dukhi
and
another,
AI.R.
1976
Allahabad, 444. It is argued on behalf of
2 All] Abdul Sattar V. Ram Rakshpal
951
the deceased appellant that no doubt when
an appeal is filed against a dead person, it
is a still-born appeal and the provisions of
Order 22 C.P.C. would not apply, but in
the event, an application is made for
substituting the legal heirs of the deceased
who died prior to the institution of the
appeal, the appeal would be taken to have
been filed on the date of the application
and if the appeal is time barred and the
provisions of Section 5 of the Indian
Limitation Act is invoked for getting the
delay condoned, it would be taken that the
appeal is filed on the date, limitation is
condoned.

5. After going through the aforesaid
decisions cited by the respective counsels
for the parties, so far the application under
Order 22 C.P.C is concerned it is correct
to say that no substitution can be
permitted in a case where there was sole
defendant or the appellant and he was
dead on the date of institution of the
appeal, but where there are more
defendants then one, and one of them was
dead when the suit was filed or the appeal
was presented, the court have held that the
legal representatives of the deceaseddefendant can be brought on record
subject to the question of limitation If
there would have been a number of
appellants then the suit was very much
maintainable at the instance of the other
appellants and application for substitution
under Order 22 Rule 4 C.P.C, can very
well be entertained. In the case of Bala
Prasad (Supra) this High Court had
clearly held that where a suit is filed
against the several defendants, one of
whom \\as dead at that time of institution,
the suit can not be considered to have
been instituted against a dead person and
it can not be said that it is 110t a validly t
instituted suit. In such an event, the court
can exercise all the powers of Order 22
Rule 4 C.P.C. In the present case,
however
the
situation
is
altogether
different, the appeal was presented by a
dead person., Admittedly the appellant
Abdul Sattar was not alive on 1.8.2005.
He was not alive at the relevant time,
therefore, the appeal can very well be said
to be a nullity and no aid can be taken
under the provisions of Order 22 Rule 4
or Order 6 Rule 17 C.P.C. The decisions
cited on behalf of the plaintiff-respondent
so far the provisions of Civil Procedure
Code is concerned, appears to be correct
law and therefore L come to a conclusion
that the application for substitution under
Order 22 or Order 6 Rule 17 C pecan not
he
allowed.
The
application
for
substitution is accordingly dismissed.

6. However, Allahabad High Court
Rules 1952 provides a remedy in such an
extra ordinary circumstances, Chapter X
of the High Court Rules deals with the
appeal or application by or against the
legal
representatives,
assignee
etc.
Chapter X Rule 3 of the High Court Rules
is quoted below:

"3.
Appointment
of
legal
representative of deceased party after
the filing of appeal- Where after a
memorandum
of
appeal
has
been
presented to the Court, any appellant or
any party interested in the maintenance of
an objection filed under Rule 21 of Order
XLI of the Code is informed that any
person who is arrayed as a party in such
appeal or objection had died before the
memorandum of appeal was presented but
after the decree or order appealed from
was passed, he may subject to the law of
limitation, make an application for an
order that the memorandum of appeal be
amended by substituting for the person
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
who is dead, his legal representative. The
application shall state such facts as may
be necessary to support it and shall be
accompanied by an affidavit."

7. A careful reading of this Rule
make it evident that the High Court Rules
have taken care of a contingency where
the sole appellant or the respondent died
before the memorandum of appeal was
presented but was alive on the date when
the decree or order appealed was passed.
The memorandum of appeal can be
permitted to be amended by substituting
the person who is dead and his legal
representatives can very well be brought
on record. In the instant case, two
applications under Chapter X Rule 3 of
the High Court Rules supported by an
affidavit has been brought on record
seeking permission to array the legal
representatives of the deceased-appellant
Abudl Sattar as the appellant nos. 1/1 to
1/7. The Judgment and decree passed in
the first appeal is 19.4.2005. The certified
copy of the decree appended with the
appeal shows that it was prepared on
3.5.2005
and
the
appellant
died
subsequent to the passing of the judgment
and
preparation
of
the
decree
on
17.7.2005. In fact the appeal was also
reported at the time when the appellant
was alive and, therefore, I come to a
conclusion that this is a fit case where the
benefit of Chapter X Rule 3 of the High
Court Rules is available to the present
appellant. The learned counsel for the
appellant has cited a Division Bench
decision of this Court, Banke Bihari Lal
and another Vs. Mahadeo Prasad.
A.I.R. 1953 Allahabad 97, on the
question of condonation of delay and
burden of proof for grant of relief of
condonation of delay.

8. I have carefully examined the
counter and rejoinder affidavits filed in
support and against the delay condonation
application. It is apparent that though the
appeal was reported and it was lying with
the counsel for the appellant but it was not
within his knowledge that the sole
appellant
is
dead.
Subsequently
an
application for substitution as well as for
bringing
on
record
the
legal
representatives under the provisions of
High Court Rules along with delav
condonation application was filed. I find
that the cause shown is sufficient and thus
the delay in filing the application is fit to
be condoned. The application under
Chapter X Rule 3 of the High Court Rules
is allowed. Counsel for the appellant is
permitted to bring on record the heirs of
the appellant within a period of three
weeks from today. Office is directed to
summon the trial court record at the cost
of the appellant and list this appeal before
the appropriate Court for admission after
receipt of the record.

9. Till the next date of listing, the
parties are directed to maintain status quo
as on today.

 Delay condoned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2006

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.14044 of 2006

Aditya Shukla

...Petitioner
Versus
Smt. Shanti Devi Srivastava ...Respondent

Counsel for the Petitioner:
Sri R.S. Mishra