IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision Nos. 191 of 2001 Date of decision June 24, 2008 __________________________________________________________ 1. Civil Revision No. 191 of 2001 Shri Keshav Ram Verma & another ….Petitioner Versus Smt. Pushpa Behl & another ….Respondents ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Civil Revision No. 191 of 2001 For the Petitioner : Shri Bhupinder Gupta, Sr. Advocate, with Sh. Neeraj Gupta, Advocate. For the Respondents : Shri Ramakant Sharma, Advocate _______________________________________________________ Dev Darshan Sud, J. This revision has been preferred by the plaintiffs who are the appellants before the learned District Judge. An application under Order 1 rule 10 of the Code of Civil Procedure was moved by the plaintiffs before the learned trial Court with a prayer for impleading the heirs of Shri Sant Narayan. It was pleaded that Smt. Sushila Nair should be substituted as legal heir of the deceased. Learned trial Court held that on the death of a party to the suit, if the legal representatives 1 Whether reports of Local Papers may be allowed to see the judgment? 2 are not brought on record within time the suit abates without any order being passed to that effect by the Court. The application was dismissed and the suit was dismissed as having abated. Appeal preferred by the plaintiffs/appellants challenging the order as against law. The learned District Judge, on a consideration, of the submissions before it, held that in the absence of any application moved by plaintiffs/appellants for obtaining an order to have the abatement set aside, the trial court did not have jurisdiction under Order 1 rule 10 of the Code of Civil Procedure. This is a very hyper technical view. By an order dated 24.8.1994 trial Court had settled the following issues:- 1. Whether the plaintiffs are owners in possession of suit land ? OPP. 2. Whether the orders of Collector dated 18.12.1984 one of Divisional Commissioner dated 8.10.1990 are illegal and void? OPP 3. Whether the suit is bad for joinder of State of H.P. as a party? OPD 4. Whether the plaintiffs are estopped to file this suit by his act and conduct? OPD 5. Whether the suit stands abated for want of legal representatives of Shri Shiv Narain? OPD 6. Whether this court has no jurisdiction to try and decide this suit? OPD 7. Whether the suit is not properly valued for Court fee and jurisdiction? OPD 8. Relief. Issue No.5 specifically dealt with the facts as to whether suit abates for non-representation of the estate of the deceased or not? Surely, both the Courts below were aware about the fact that trial of this issue would require evidence and arguments and not mere assumption. The trial Court could not assume facts on 3 record of the case to hold non-representation of the estate of deceased. The appellate Court fell into the same error and instead of focusing on the main issue in the trial, proceeded to dismiss the case only on a perfunctory consideration of Order 22 of the Code of Civil Procedure. Surely if the estate was not properly represented, to which effect the issue No.5 was settled, the result would be obvious, but only after trial. Learned counsel appearing for petitioner has urged on the basis of the record before the trial court that there was proper representation of the estate of the deceased and that the record itself forms part of the pleadings, established this fact. I am not examining the merits of the submissions made by learned counsel as it was the bounden duty of the trial Court to have decided all the issues and not merely dismissed the suit on an application under Order 1 rule 10 of the Code of Civil Procedure. This approach is neither legal nor sustainable under any principle of law. The appellate Court’s duty was to have corrected this error committed by the trial Court, but it further compounded it by rejecting the appeal on technical grounds. This revision petition is accordingly accepted. The order passed by District Judge, against which this revision petition is filed, affirming the order of trial Court, is quashed and set aside. A direction is issued that both the parties shall appear before the trial court on 14th of August, 2008 and the Court shall proceed with the trial of the case in accordance with law. On the point of abatement, an issue having been framed, the application under Order 1 rule 10 of Code of Civil Procedure will be considered by the trial Court when the issue is being tried. There shall be no order as to costs. The record of the Courts below be sent back immediately. June 24, 2008 (Dev Darshan Sud), (ms) Judge. 4