S.B. CIVIL MISC. APPLICATION NO. 49/2006. (NARENDRA NATH Vs. SHRI KRISHNA & ORS.) Date of Order :: 4th July 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. A.K. Rajvanshy, for the applicant. Mr. Rajiv Purohit, for the non-applicants. .... BY THE COURT: This matter has been registered as S.B. Civil Miscellaneous Application No. 49/2006 on the applications moved by the defendant-appellant in S.B. Civil Second Appeal No. 135/1997 for substitution of the legal representatives of the deceased plaintiffs-respondents Nos. 1 and 2, for setting aside abatement, and for condonation of delay in filing the said applications. The relevant background facts and aspects are that in the civil suit filed by the plaintiffs-landlords Sri Krishna, Hari Krishna and Radha Krishna against the present applicant- tenant Narendra Nath for eviction from the suit premises on the ground of default in payment of rent, non-user of the suit premises, and reasonable bonafide requirement of the landlord particularly the plaintiff No.3 Radha Krishna, the defendant-appellant failed to file his written statement in time; and, therefore, no issues were framed. After taking evidence 1 and hearing the parties, the learned Trial Court in its judgment and decree dated 22.03.1994 held proved the reasonable and bonafide requirement of the landlord and also decided the question of comparative hardship in favour of the plaintiffs; and further held proved the fact that the suit premises were not used regularly for six months prior to the filing of the suit for the purpose they were let to. The learned Trial Court, therefore, granted decree for eviction on the ground of reasonable and bonafide requirement and so also on the ground of non-user of the premises. During pendency of the first appeal against decree for eviction as preferred by the defendant-appellant Narendra Nath, the plaintiff-respondent No.3 Radha Krishna expired and the defendant-appellant failed to seek substitution of his legal representatives on record. The learned Appellate Court in its judgment and decree dated 27.02.1997 found the appeal having abated qua the plaintiff Radha Krishna and the decree for eviction in favour of Radha Krishna on the basis of reasonable and bonafide requirement having become final. The learned Appellate Court also observed that the suit premises were not being used for the purpose they were let to and the finding in that regard was also affirmed. Consequently, the appeal was dismissed. 2 The defendant-appellant preferred the aforesaid second appeal to this Court while arraying the legal representatives of the deceased plaintiff No.3 Radha Krishna as the respondents No.3/1 to 3/5. The said appeal was admitted on 28.07.1997 while formulating the following substantial questions of law:- “(1) What is the effect of the death of plaintiff Radha Krishan, during the pendency of first appeal, on the ground of whose personal need the suit was decreed by the trial court on the proceedings? (2) What is the effect of not bringing the LRs of Radha Krishan on record within the prescribed time in the first appeal? (3) Whether in the circumstances of the case the tenant appellant will have to suffer a decree, the very basis of which has been knocked out because of death of the plaintiff on the ground of whose personal need the decree was passed?” During pendency of the said second appeal, the counsel appearing for the arrayed respondents No.3/1 to 3/5 submitted an application on 11.12.2004 pointing out that the plaintiff- respondent No.2 Hari Krishna had expired on 13.12.2003 and the plaintiff-respondent No.1 Sri Krishna had expired on 06.06.2004. In relation to the said application, after several adjournments, the learned counsel appearing for the appellant submitted before the Court on 22.09.2005 that despite information, he had not been able to receive appropriate instructions and he was not in a position to controvert the 3 submissions made in the said application. Hence, for no substitution having been prayed in relation to the respondents Nos.1 and 2, this Court found the appeal having abated as against the said deceased respondents. The question of survival of the said second appeal was thereafter considered on 20.10.2005 and this Court found that first appeal itself had abated for the defendant-appellant having failed to seek substitution of the legal representatives of the deceased plaintiff-respondent No. 3. It was further found that though notice to the legal representatives of the deceased plaintiff No. 3 had been issued in the second appeal but no such substitution was ordered and then, the other plaintiffs also expired and the defendant-appellant failed to seek substitution of their legal representatives also. The said second appeal, of whatever worth, was found to have abated as a whole and was ordered to be consigned to record. In the order dated 20.10.2005, this Court thus considered the submission of the rival parties and held: “Today, learned counsel for the appellant has attempted his best to make submissions that as the plaintiffs were the co- owners of the suit property and even if the respondents No.1 and 2 have died, the legal representatives of the plaintiff No.3 Radha Krishna are on record as respondents No.3/1 to 3/5 and, therefore, this appeal would not abate. Learned counsel for the respondents No.3/1 to 3/5 strenuously opposed these submissions and pointed out that the respondents No.3/1 to 3/5 were never 4 substituted in first appeal and have although been joined as parties in this appeal but have never been ordered to be substituted in place of deceased respondent Radha Krishna; neither the appeal is properly constituted nor it would survive. Having given a thoughtful consideration to the rival submissions and having regard to all the facts and circumstances of the case, this Court is clearly of opinion that after the death of respondents No.1 and 2 and abatement of the appeal against them, this appeal does not survive and abates as a whole. So far the respondents No.3/1 to 3/5 are concerned, they were never substituted in place of the deceased plaintiff No.3 Radha Krishna before the first appellate court and that was the precise reason for which the first appeal itself abated. The appellant has moved applications along with the present appeal for substitution of the legal representatives of the deceased plaintiff Radha Krishna and for condonation of delay and while admitting this appeal, a notice of the applications submitted by the appellant has also been issued. However, the fact remains that no such substitution has been ordered in this appeal. Although the first appellate court has affirmed the judgment and decree passed by the trial court on merits also but at the same time specifically recorded that the judgment and decree passed by the trial court has become final for the said appeal having abated qua the plaintiff No.3 Radha Krishna. The net result obtainable is that all the plaintiffs have expired and the defendant who is the appellant herein has failed to properly seek substitution of legal representatives of the deceased plaintiffs. The first appeal has rightly been dismissed by the first appellate court as abated and the present second appeal has already abated so far the plaintiffs- respondents No.1 and 2 are concerned and, 5 therefore, the decree for eviction against the present appellant passed in favour of the respondents has become final. In the aforesaid view of the matter, no further proceedings are required to be taken in the instant second appeal that has abated as a whole and, therefore, be consigned to record as such. “ Thereafter, only on 10.04.2006, the defendant-appellant has filed the present applications for substitution of the legal representatives of the deceased plaintiffs-respondents Nos. 1 and 2, for setting aside abatement, and for condonation of delay. While stating that the plaintiff-respondent No. 1 Shri Krishna had expired on 01.06.2004 and the plaintiff- respondent No. 2 Hari Krishna had expired on 13.12.2003, the defendant-appellant-applicant has stated the names of the legal representatives of the said deceased respondents in the application moved under Or. XXII R. 4 CPC and has prayed for their substitution as respondents in place of the deceased respondents. In the applications moved under Or. XXII R. 9 CPC for setting aside abatement and under Section 5 Limitation Act for condonation of delay, the applicant has stated that he could not file the application for substitution in time for the reasons that he is suffering from severe diabetes mellitus and hypertension and for last four years had not been in a position to undertake long journey due to complications; that he was admitted in P.B.M. Hospital, Bikaner as indoor 6 patient on 12.10.2003 and remained admitted for seven days as his condition became critical. A copy of the discharge ticket of the said hospital dated 18.10.2003 has been filed along with the application; and a certificate dated 06.04.2006 as issued by Dr. Rajendra Kumar Gupta has also been filed that states about the applicant being under his regular treatment for four years and that the applicant was unable to move long distances due to complications and now he could move with one attendant. With reference to such facts relating to his ailment, the applicant has prayed for setting aside abatement and for condonation of delay with the submission that he could not come to Jodhpur earlier and could not file the requisite application. The applications as moved in this case remain bereft of substance and are rather an exercise in futility. Fundamental of the facts remains that the first appeal as filed by the applicant had itself abated as a whole on the same having abated against the deceased plaintiff No. 3 Radha Krishna. The first Appellate Court has also pointed out such a position in its judgment dated 27.02.1997. For the first appeal itself having abated, the second appeal taken to this Court, even when entertained, was fundamentally incompetent. This aspect of the matter has been indicated by this Court in the order dated 20.10.2005 as reproduced hereinabove. The 7 decree passed by the learned Trial Court had become final in relation to the plaintiff No. 3 even during the pendency of the first appeal; and being indivisible, had attained finality over the entire suit. No purpose would be served even if substitution of the legal representatives of the deceased respondents Nos. 1 and 2 were to be made now because, as noticed, the said second appeal was fundamentally incompetent when the first appeal itself had abated and the decree passed by the Trial Court had attained finality. Besides the above, and even when the aspects of abatement of first appeal and incompetence of second appeal are left aside for a moment, the submission as made by the applicant in this matter for the purpose of his prayers for setting aside abatement and condonation of delay do not inspire confidence; and such prayers deserve to be refused. A look at the history of the case makes out that the defendant- applicant failed to put his written statement on record despite repeated opportunities and the suit was decided without his written statement; the applicant failed to apply for substitution of the legal representatives of the plaintiff-respondent No. 3 in the first Appellate Court and the said appeal abated; the applicant further failed to apply even in second appeal for substitution of the legal representatives of the plaintiffs- respondents Nos. 1 and 2 who expired on 06.06.2004 and 8 13.12.2003 despite information to that effect supplied on 11.12.2004 and, as late as on 22.09.2005, his counsel had to state want of instructions despite intimation; and, to cap it all, the present applications have been moved only on 10.04.2006, about six months after the second appeal was held abated against the plaintiffs-respondents Nos. 1 and 2 on 22.09.2005 and was ordered to be consigned to record on 20.10.2005. It is but apparent that the applicant, at every stage of proceedings, has chosen not to take requisite steps within reasonable time; and viewed in the light of regular defaults and omissions on his part, the prayers now made with reference to the ailment do not appear making out sufficient cause. In this perspective, the facts noticeable are that according to the applicant, he was hospitalised on 12.10.2003 and was discharged on 18.10.2003; and the applications have been moved only on 10.04.2006 and a cursory certificate from the concerned doctor bearing date 06.04.2006 has been filed stating that the applicant had been under his treatment for four years and ‘was unable to move long distances due to complications’. Apart that no corroborative material in this regard in the form of prescription slips etc. has been placed on record, relevant it is to notice that the information regarding demise of the said respondents was supplied in the said 9 second appeal on 11.12.2004 and the learned counsel appearing for the present applicant after taking several adjournments, had to state before the Court on 22.09.2005 want of appropriate instructions despite intimation. It is not borne out from the submissions as made in the present applications if the applicant, even if he was ‘unable to move long distances’, could not have at least send appropriate instructions to his counsel and to have responded to his communications. The present applications could only be viewed as a belated and futile attempt on the part of the applicant to somehow resurrect his incompetent second appeal on vague pretensions. The applications dated 10.04.2006 stand rejected. (DINESH MAHESHWARI), J. //Mohan// 10