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Appellant Court may dispense with service of notice to respondent(s), when not appeared or represented in Trial Court or First Appellate Court: Himachal Pradesh High Court

Order 41 Rule 14 CPC provides that Appellate Court should cause publication and service of notice upon the respondent(s) to appear and answer the issue raised in the appeal. However, Delhi, Himachal, Punjab, Haryana, and Chandigarh brought an amendment where the appellate court can dispense the service of notice to the respondent(s), when they have not appeared or not been represented in Trial Court or First Appellate Court. This judgment was passed in the case of Shri Jaishi Ram vs. Shri Manohar Lal & others [RSA No.261/2019], by a Single bench consisting of Hon’ble Justice Vivek Singh Thakur.

The Appellants approached the court assailing concurrent findings of the courts below. The civil suit filed by the plaintiff seeking a declaration that he has acquired ownership right in the suit land by way of adverse possession was dismissed by the trial court and the First Appellate court. on filing the present appeal notices were served to respondent no. 7 and no. 18 came back since they had expired while the proceedings were pending. The appellant filed 2 applications seeking the respondents to be substituted with their legal heirs. The provision for dealing with such substitution was Order 22 rule 4 of CPC. It provides that the legal representatives of the deceased defendant shall be made a party on an application made on that behalf and thereafter Court shall proceed with the suit. Rule 4(4) provides that Court may exempt the plaintiff from substituting the legal representatives of any such defendant who has failed to file a written statement or those filed but failed to appear the same would be granted before pronouncing the judgment. Rule 4(5) provides that the filing of an application for substitution after the expiry of the limitation period, will be accepted by the court under Section 5 of the Indian Limitation Act, the plaintiff had sufficient cause for not making the application within the period specified.

The High court observed that it is a settled principle that a decree in favor of or against a dead person is a nullity. Further, the non-substitution of legal representatives of the deceased defendant may cause the abatement of appeal against the deceased defendant or as a whole but the same depends on the effect of non-substitution of legal representatives of the deceased defendant on the relief claimed. In the present matter, the plaintiff set up a case of ignorance of the death of the defendants.

The High court after hearing counsels of both parties to the proceedings observed that an application for setting aside abatement and substitution of legal representatives should have been made and dealt with by the Court in which abatement occurred as abatement is automatic irrespective of the passing of order and the question of whether suit to abate in toto or in part, has also to be decided by the same court. The question of whether there was sufficient cause for setting aside the abatement or whether the legal representatives of the deceased are to be brought on record are to be decided by the same court in which the suit or appeal was pending.

The high court observed, at the same time order 41 rule 14 CPC provides that the Appellate Court shall cause publication and service of notice upon respondents to appear and answer the issue raised in the appeal. There was an amendment made that was applicable to Delhi, Himachal Pradesh and Punjab, Haryana, and Chandigarh High Courts. Under the amendment, it was provided Appellate Court can dispense with service of notice on any respondent who did not appear either at the hearing in the Court or any proceedings subsequent to decree of that Court or on legal representatives of any such respondent.

In the present matter while respondent no. 18 did not contest the decree and the proceedings took place ex parte in both the courts, his service upon his legal representative would be dispensed with. However, respondent no. 7 was represented in the trial court therefore the issue with respect to respondent no. 7  would be governed by the first appellate court.

The High court concluded by holding, “first Appellate Court shall consider and decide all the pleas and counter pleas of the parties after affording the parties due opportunity.”

Click here for the Judgment.

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