Case: Union Of India Vs. Sree Ram Bohra And Others

1. Bilas Rai Bohra, son of Bansidhar Bohra and Shri Ram Bohra, son of Ganpat Ram Bohra, sued the Union of India for the recovery of Rs. 13,448 from the defendant for compensation on account of loss and damage suffered by the plaintiffs owing to non-delivery of 11 bales of cloth which had been consigned on October 20, 1948 by M/s. Ram Kishun Das Sagarmal of Bombay to the plaintiffs under the description of M/s. Banshidhar Ganpat Rai. It was alleged in para 1 of the plaint that the plaintiffs carried on business in cloth and other articles in the name and style of M/s. Bansidhar Ganpat Rai which was their joint family trading firm governed by the Mitakshara School of Hindu Law of which joint family the plaintiffs were the kartas and representatives and that they sued as such. This statement in para 1 of the plaint was not admitted in the written statement. The trial Court decreed the suit on August 29, 1951. The decree, inter alia, said :"It is ordered that the suit be decreed with costs (and?) defendants do pay to the plaintiffs the sum of Rs. 13,448 with interest thereon...."2. The Union of India appealed to the High Court of Patna and prayed for the setting aside of the decree and for the dismissal of the suit with costs. The plaintiffs-respondents were served with notice of the appeal. Subsequently Bilas Rai Bohra died on July 24, 1957. On September 5, 1958, the Union of India presented an application for substitution under O. 22, R. 4 read with O. 22, R. 11, C.P.C. for setting aside the abatement and condonation of delay. It was stated in the application that the applicants advocate came to know of the death of Bilas Rai Bohra, plaintiff No. 1, on May 14, 1958 when the case was on the daily list with a note to the effect, that he promptly communicated the fact to the railway authorities but due to the mistake of the Attacher, proper steps for substitution could not be taken in time. It was further stated that after a good deal of enquiry and efforts for three days the date of the death of Bilas Rai Bohra and the names and addresses of his heirs and legal representatives could be ascertained. A prayer was made for substituting the heirs of Bilas Rai Bohra, they being his sons, a widow and a daughter. Their names were mentioned in the application3. This application was opposed on behalf of the heirs of Bilas Rai Bohra. It was mentioned therein that on September 27, 1957, an application for substitution of the heirs of Bilas Rai Bohra was made in another appeal in which the Union of India was a respondent and that, therefore, the Union of India and its Advocate were aware of the death of Bilas Rai Bohra and of the names of his heirs4. On December 1, 1958, the High Court dismissed the application for the setting aside of the abatement of the appeal against Bilas Rai Bohra and for the substitution of the heirs as it was of opinion that there had been gross negligence on the part of the appellant, the Union of India, as its counsel had information about the death of Bilas Rai Bohra at least on May 16, 1958. The High Court did not feel satisfied on the facts of the case that any ground had been made out for setting aside the abatement of the appeal5. It may be mentioned here that it was not urged in the High Court that there had been no abatement of the appeal against the heirs and legal representatives of Bilas Rai Bohra. It could not have been urged when the Union of India itself had applied for the setting aside of the abatement and the substitution of the heirs and legal representatives of Bilas Rat Bohra6. The appeal of the Union of India against the surviving respondent, viz., Shri Rani Bohra, came up for hearing on February 11, 1959, when a preliminary objection was raised on behalf of the respondent to the effect that the appeal had abated entirely as it had abated against the heirs of plaintiff-respondent No. 1. It was contended for the Union of India that the two plaintiffs, viz., Bilas Rai Bohra, deceased, and Shri Ram Bohra, had filed the suit as kartas of the joint family which was thc owner of the firm of M/s. Bansidhar Ganpatrai and that after the death of one of the kartas the other plaintiff who was also described in the plaintiffs suit as karta was competent to represent the family and so there could be no question of abatement of the entire appeal. Again, it was not contended that the appeal against the heirs of Bilas Rai Bohra had not abated7. The High Court upheld the preliminary objection and held that the appeal had become incompetent and has liable to be dismissed. It was of opinion that even if it be taken that both the plaintiffs had filed the suit in their capacity as kartas of the same joint family, the joint family had gained by virtue of the appeal having abated against the heirs of Bilas Rai Bohra as the decree passed in favour of the joint family through the representation of Bilas Rai Bohra could not be set aside and in case the appeal was permitted to proceed against the joint family in the presence of the other karta Shri Ram Bohra, there might be -occasion for the coming into existence of two inconsistent decree. The High Court, accordingly, dismissed the appeal. It was against this order that the Union of India obtained the certificate from the High Court under Art. 133 and then filed this appeal.

Reasoning: 15. We, therefore, consider the matter in appeal on the basis that the suit was brought by two persons as plaintiffs. They can at best be taken to represent the joint Hindu family which owned that firm Bansidhar Ganpat Rai. Any one of them cannot represent the joint family after the death of the other till his authority to represent the family is confirmed by the members of the family there is no allegation or proof about such confirmation or fresh vesting of authority in the second plaintiff, via., Shri Ram Bohra. For the purpose of the suit, there were two plaintiffs and on the death of one of them it was necessary for the opposite party to implead his heirs and legal representatives within time. It failed to do so and, therefore, the appeal against those heirs and representatives of Bilas Rai Bohra was rightly held to have abated. The result of such abatement makes this appeal against the other respondent incompetent as the decree against both the respondents, viz., Bilas Rai Bohra and Shri Ram Bohra was a joint decree. There was nothing in the decree to indicate for whose benefit it was passed or in what proportions the two decree-holders were to get the decretal amount. The appeal against Shri Ram Bohra was, therefore, incompetent16. This view is supported by the decision of this Court in State of Punjab v. Nathu Ram, 1962-2 SCR 636  : (AIR 1962 SC 89 ). It was held there that when the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated17. We are, therefore, of opinion that the High Court was right in holding that the appeal against Sri Ram Bohra alone became incompetent18. It has been further argued for the appellant that the High Court should have allowed the appellants application for setting aside the abatement.The High Court exercised its discretion judiciously, after taking into consideration the facts urged in support of the prayer that the abatement of the appeal be set aside. We do not find any reason to consider that the discretion was not properly exercised. We, therefore, do not consider this a fit case to interfere with the discretion exercised by the High Court in this regard