Qancsh Prasad Som (Dcad) by L.RS. v. Ramesh Kuinar Tamrakar

Ganesh Prasad Soxii, S/o Late Shri Laxmi Prasad Soni, agcd 49 years, R/o Qondpara, Bikispur, Tahsil & Distt. Bilaspur (C.G.) (Above plamtiff died afljer fhe jiidgmeut on 9-4-2004) Sait. Ragiai, aged 48 years, widow of Late Gancsh Prasad Soni Shailendra, aged 32 years, S/o Late Ganesh Prasad Soni Vivek Soni, aged 30 years, S/o Late Gaaesh Prasad Soxu, Shikha Soiii, D/o Late Ganesh Prasad Soai, aged 22 years. AU four R/o Gondpara, BUaspur (C.O.) Snat Shalinl Vaishya, W/o Anup Vaishya, aged 24 years, R/o VUlage Shankai^arh, Distt. Allahabad (U.P.) A. B. C. D. E, (Above persons represcntativcs of or^mal plaintiff Gaaesh Prasad Soni) RESPONDENT/: (Defendaat) Versus Tamrakar, Ramesh Kumar S/o Tulsirain Tanuakar, aged 30 years, R/o Lodhipara, Sarkaada, TahsU & Distt. Bilaspur (C.G.) {First appeal uader Sectfon 96 ofthe Code ofCnril I'rocedure, 1908} Eresent: Mr. Shree Kumar Agrawal, Seiuor Advocate wifh Mr. Sudhir Agrawal, Advocate for the appellants. Mr. Rakesh Pandey, Advocate for thc respondent. Slnde Beach: Hon'ble Mr. T.P. Sharma, J JUDGBIBMT (DeMvered on I 3 Maich. 2009) 1. This appeal is directed ^ainst the judgiaent & decree d^ted 31-3-2004 passed by ftie 3rd Additional District Judgc, Bilaspur in CivilSuit No.5- A/2004, whereby leamed Additional District Judge has heM fhat deceased Talsuam. was tenant of deceased plnmtifF Gaaesh Prasad and the suit was disnaissed on fhe ground that the plamtifF has not brought fhe legal representattves ofdeceased Tulsiram on rccord. 2

2. Judgment & decree are GhaBei^ed on the groimd that present respondent Ramesh Kumar is son of deceased Tulsitam aad he is already on record, all kgal rcpresentatives of deccased defendant Tulsirain were not nccessaiy party and the plaintiffwas aot required to bring aU legal representativcs ofdece^sed Tulsiram ou record.

3. Case of plaiatiff/deceased Ganesh Prasad Soni in nutsheU is fhat Gaaesh Prasad Soni was owner of fhe suit housc, deceased Tulsiram was tenaat aad present respondent Ramesh Kumar was subtenaat of the suit house. Deeeased Ganesh Prasad Soni has ffled a swt for ejection and recoveiy of the arrears of rent. Deceased Tulsiram & present respondent Ramesh Kumar have deiued the rclationship of owner & tenant betweeri fhemselves & deceascd Gaaesh Prasad aad spccificaUy alleged that Muiucipal Corporation, Bilaspur is the owaer of fhc suit housc. Deceased Tulsiraia was not tenaut & Ramesh Kumar was not subtenant ofdeceased Ganesh Prasad. Botti fhe parties have kd evidenee aud fhe Court has decided inost ofthe issues ta favour of deceased plaiatiff Gaaesh Prasad, but has dmmissed the suit on ftie ground that the plaintiff has faited to briag aB lcgal representatives of deceased Tulsiram (defeadaat) on record.

4. I have heaid learued eounsel for the partics aad peTuscd ftie judgmcnt & decree and rectadofthe Court bclow.

5. Leamed counsel for titie appeUants subiiaitted that fhe Court bclow has decided aU substantial issues in favour ofdeceased Gaaesh Prasad, the origmal plaintifF, but has disintesed fhc suit onty on the gTOund fhat the ptaintifFhas faited to briag all the lcgal representatives of deceased Tulsicam on record. One legpl represeirtative of deceased Tulsirani namefy, defendant Raaaesh Kumar is already on record, thcrefore, fhe plaintifF was not requn-ed to bring afl the legal representatives of deceased Tulsiram on record, aU legal even in atosence of reptiesentatwes of the deceased the suit was maintamabte. Leaxned counsel placed reliaaee in fhe matter of Chaadra Mohaa* Saha and another v. Union of Indta and aaothw1 in which it faas been held fhat the pardes are required to take objection relatmg to nexxssaty party at an. early sta^e aad if such objcction is not takea at an ea-Uer st^e, then it should be deeined to have bcen wawed. If pariy is represented adcquately, faflure to tnake other person as party would not abate the suit or appeaL Leamed coiiasel further placed rdiance ' A.I.R. 1953 Assam 193 (FB) in tlie inatter of8m. Swariw fcata Devt v. N/a. I&ltAna Iroa Ponad»y & Metal Worhs (I^ Ltd.2 in which it has been held by the Calcutta H^h Court fhat co-sharer brought on recoxd as haviag certain iaterest in property te coinpetent to represeut eiitire intetests. Learaed counsel also pteced reliancc in fhe matter of Textlte Assectatioa (India) Bombay Uait v. Balinohaa Gopal Kurup aad anotluer3 m which the Apex Court has held fhat in fhe case of suit fited by laadlta-d for eviction, if all fhe interested peraons are not made party, decrec passed in such suit should be sct aside for aEEbrding aa opporttmlty of makmg thc iaterest peisons as party.

6. On fhe ofhcr haad, teamed counsel for fhe respondcnt subaiitted that the deceased plaintiff has not brought present respondent Ramesh representatwe of deceascd defendant Kumar on record as legal Tulsiram, but deceased plaintifif' Ganesh Prasad. has made Ramesh Kuiuar as defendant on the ground of sub-tenauey, however, after fhe t&e dcceased plaintiff has not btcught aay lcgal death Of Tulsirani, representative of deceased Tulsiraxn on record, therefore, no effective decree can be passed against fhe legal representative of deccased Tulsiram.

7. In fhe instant c^se, the Coiut below has decidcd substantial issue relatmg to landlord & tenaat aad acrears of rent m favour of the plaintiff, but has disinisscd fhe siut on fhe groimd fhat fhe plflintifThas failed to bring legal representatives of deceased Tulsiratn on rccord. Accordiag to fhe aUegation of the plamt, deceased Tulsicam & Raiaesh Kumar were not teiiaats of deceased plaintiff Oanesh Prasad, but Tulsiram was the original tenant and Ramesh Kumar was sub-teaaat of deceased Tulsiram aad the suit house was sublet by dcccased Tulsirani to defendaut Ramesh Kumar. The order dated 9-7-3001 of the Court bclow reveals that respondent Ramesh Kumar has objected at the tirne ofdeletion ofthe name ofTulsiram that thc plaintiffhas not brought the legal repi^sentatives of deceased Tulsiram on record. This is not fhe case in whieh respondent Rainesh Kumar has not (Ajected or was sttent at the tune of dektion of the name of TulsirMa, after the death ofTulsn-am.

8. In case of deafh of fhe defendant if cause of action survives, plaintiff is required to cause the legal representative of the deccased defendant to be made a party m accordaace wifti Order XXII Rule 4 of 2 AIR 1974 Calcutta 393 3 AIR 1990 Supreme Court 2053 the Code of CivU Procedure, 1908 (for short the Cod.e'). Oider XXII Rule 4 ofthe Code read thus, "4. Ptocedure la case of death of oae of severd defendaats <w ot sote defeadaat.—(1)Where one of two or inore defendaats dics aad the right to suc does not sumve ^aiust sumviug defendant or defendants alone, or a so]e defendaat or solc surviving defendaat dies aad the right Court, on an application made in that bebaSS, shall thc deceased dcfeudant to be made a parly aad shaU proceed with the suit representative of to sue survives, (2) Aay person so inade a party m.ay inake any defence representative ofthc deceased defendant. appropriate character to his (3) Where wititun flie time Umited by law no appUcation is inade iinder sub-rule (1), the szut shaU abate as against the deceased defendant (4) The Court whenever it thiaks fit, may exeinpt the plaiTitifffroin the neccssity ofsubstituting the legal representetives of any such defendaat who has failcd to ffle a written statement or who, having ffled it, has failed to appear and contest the suit at the hearing; in such case, be pronoiinced and jiidgment may, agajnst the said defendaat notwithstaadmg the deatii of such defendant and shall have thesame force and efFect as if it baa been pronoziaced before dcath took place. (5) Where- (a) the plaiatiffwas lya.oran.t of fhe dcafh. of a defiendant, aad could not, for ffaat reason, make an application for fhe substitution of fhe legal representative of fhe dcfendant underllus rutewithin thc period spccificd in the Lixmtation Act, 1963 (36 of 1963), and fhe suit bas, ia consequence, abated, (b) the plaintiff appUes after the cxpiiy of the period specified fhterefor in tfae Limitation Act, 1963 (36 of 1963), for settiag aside thc abatement and also for the adinission of that application. under seetk>n 5 of fhat Act on the ground fhat he had, by reason of such iffxiisaa.ee, sufGcient cause for not inaking the appHcation within fhe period spccified in the said Act, the Court shaU, in coi^idermg the appUcation under the said section 5 have due regard to the fact of such ^noraace, tfproved.

9. In fhe case of Daya Raaa aad others v. Sh^ua Sundal aad others'1 fhe Apcx Court has held fhat if impleaded legal representatives <AIK 1965 SC 1049 sufBcienfty representing the cstate of thc dcceased, omisston to anplead certain represcntatives of respondent wifl prevent thc suit froai abateinent l0.in fhe case of Newtmaess aUa» Mewajanaes»a v. Shaihh Moliaaad and others5 fhe Apex Court bas held fhat if estate of the deceased is represented by sonae ofthe legal representatives, the appealwould not abate due to failure of substitution ofheirsofdeceased. ll.WIiile deaUngwifh fhe same question in the case ofM»v»laghp?ead) by L.RS. v. Keshar Sia^i and others6, fhe Apex Court has held fhat if fhe estate of fhe deceased is fulty represented by any tegal representativc, fhe appeal wUl not abate.

12.In the case of Rana Das and aaother v. Deputy Director of CoasoUdatIoa, BaBfai aaid otbers7 it has becn held by fheApex Court that if aU lcgal representatives are iinpleaded on rccord except one for waat of his particulars, subsequently unpleaded. the appeal wffll not abate. He cau be

13. In fhfe case son of dcceased Tulsuam i.e. the present respondent was contesting fhe case aad was already ou record, but afler fhe deafh of Tulsiram, the appeUants had not impteaded the legal representatives of deceased Tulsiraai as defendants.

14.In case of dcafh of fhe defendant if cause of action survives, the plaiattff is required to imptead fhe legal representatwes of fhe deceased defendant as a party aad ifthe legalrepresentatiffes offhe deceased are not iinpleaded as party, fhe suit ay.sdD.at such defendaats shaU be finalfy abated ia accordaace with sub-rule (3) of Rule 4 of Order XXII of the Code. But if soine of fhe legal representatives of the deceased are impteaded as defendants or already ia fhe party who may adequatety represeut the estate of fhe deceased, the suit wifl not abate, however, for substaatial adjudicatioa offhe case and for passing cfifective decree, the plauitiff/appcUant is required to implead all representatives of fhe deceased as defendaats.

15. In this case, evcn after objectton made by the sole sumvu^ defendaat i.e. fhe preseut respondent, the deceased plaintiflf had not iinplcaded other legal representatives of the deceased defendaat Tulsirani as defendants. The Court below has also rejected the objection of the