1. The present Civil Revision Application under section 115 of the Code of Civil Procedure has been preferred by the petitioners herein – original defendants to quash and set aside the impugned common judgement and order dated 23/08/2001 passed by learned Lower Appellate Court – learned Joint District Judge, Surat at Vyara below Exhs.22, 32 and 33, by which, learned Lower Appellate Court has dismissed the applications Exhs.32 and 33 filed by heirs and representatives of original appellant No.3 permitting them to be brought on record as heirs and legal representatives of original appellant No.3 in appeal and to set aside the abatement qua original appellant No.3 in appeal and learned Lower Appellate Court has allowed the application Exh.22 submitted by the respondent herein – original plaintiff to dismiss the Regular Civil Appeal No.65 of 1996 as a whole.
2. Facts leading to the present civil revision application, in nutshell, are as under:
That original plaintiff instituted Regular Civil Suit No.152 of 1990 against the original defendants for declaration and permanent injunction and claiming right of way from land bearing Block Nos.311 and 312 owned by the original defendants. It appears that original defendant Nos.1 and 2 were joint owners of land bearing Block No.311 and original defendant No.3 was owner of the land bearing Block No.312 and original plaintiff claimed right of way of the land bearing Block No.359 from the aforesaid lands. That learned Trial Court decreed the suit by judgement and decree dated 30/10/1996 granting declaration that original plaintiff has right of way to go to their field from the land bearing Block Nos.311 and 312.
Being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court, all the defendants have preferred Regular Civil Appeal No.65 of 1996 before learned District Court, Surat. It appears that original defendant No.3 – original appellant No.3 in appeal died during the pendency of the appeal on 26/05/1997. However, heirs of original appellant No.3 were not brought on record within stipulated time and, therefore, appeal qua appellant No.3 in appeal – original defendant No.3 stood abated. Therefore, respondent in appeal – original plaintiff submitted application Exh.22 to dismiss the entire appeal as having been abated. Having served with the notice of the said application, thereafter heirs of appellant No.3 in appeal – original defendant No.3 submitted application Exhs.32 and 33 to condone the delay in preferring the application for bringing the heirs of appellant No.3 on record as well as for appropriate order permitting them to be brought on record as heirs and legal representatives of appellant No.3 in appeal and consequently to set aside the abatement. By impugned common order, learned Lower Appellate Court dismissed the applications Exhs.32 and 33 and allowed the application Exh.22 by dismissing the entire appeal as a whole even qua appellant Nos.1 and 2 in appeal – original defendant Nos.1 and 2 also, who are owners of land bearing Block No.311.
Being aggrieved by and dissatisfied with the impugned common order passed by learned Lower Appellate Court, petitioners herein – original appellant Nos.1 and 2 in appeal - original defendant Nos.1 and 2 as well as heirs and legal representatives of appellant No.3 in appeal – original defendant No.3 have preferred the present Civil Revision Application under section 115 of the Code of Civil Procedure.
3. Mr.M.M.Tirmizi, learned advocate appearing on behalf of the petitioners herein has submitted that learned Lower Appellate Court has materially erred in dismissing the application Exhs.32 and 33 and not permitting heirs of appellant No.3 on record of the case. It is further submitted that learned Appellate Court has materially erred in allowing Exh.22 dismissing the entire appeal as a whole even qua original appellant Nos.1 and 2 in appeal also. It is submitted that for the fault on behalf of the heirs of the one of the appellants, learned Appellate Court could not to have dismissed the entire appeal as having been abated as a whole i.e. qua appellant Nos.1 and 2 also. It is submitted that learned Appellate Court has not properly appreciated the fact that all the appellants – original defendants were having different and individual rights to oppose the appeal and even on the death of original appellant No.3 – original defendant No.3 right to sue by other appellants – owners of the Block No.311 continues. Therefore, it is requested to allow the present Civil Revision Application.
4. Though served, nobody appears on behalf of the respondent herein – heirs and legal representatives of the original plaintiff as original plaintiff has also expired during the pendency and final disposal of the present Civil Revision Application.
5. Having heard Mr.M.M.Tirmizi, learned advocate appearing on behalf of the petitioners herein and considering the impugned common order passed by learned Lower Appellate Court, it appears that as such no illegality has been committed by learned Lower Appellate Court in dismissing the applications Exhs.32 and 33 and even dismissing the appeal qua original appellant No.3 as having been abated and not setting aside the abatement qua appellant No.3 – original defendant No.3.
So far as challenging the impugned common order passed by learned Lower Appellate Court below Exhs.32 and 33 rejecting the same is concerned, the said dispute is squarely covered by decision of the Hon'ble Supreme Court in the case of Balwant Singh (Dead) V/s. Jagdish Singh and others reported in AIR 2010 SC 3043; in the case of Lanka Venkateswarlu (D) by L.Rs. V/s. State of A.P. and others reported in AIR 2011 SC 1199 as well as Postmaster General and others V/s. Living Media India Limited and another reported in (2012)3 SCC 563. However, the impugned common order passed by learned Lower Appellate Court passed below Exh.22 dismissing the appeal qua appellant Nos.1 and 2 – original defendant Nos.1 and 2 cannot be sustained. It is to be noted that petitioner Nos.1 and 2 herein – original appellant Nos.1 and 2 in appeal – original defendant Nos.1 and 2 are owners of the land bearing Survey No.311 and appellant No.3 in appeal – original defendant No.3 was owner of land bearing Survey No.312 and, therefore, all the defendants were having separate and individual rights to contest the suit as well as appeal preferred before learned Lower Appellate Court. Under the circumstances when original appellant Nos.1, 2 and 3 were owners of the different and independent lands and even on the death of original appellant No.3 – original defendant No.3, rights of appellant Nos.1 and 2 in appeal – original defendant Nos.1 and 2 to sue or to continue with the appeal continues. Under the circumstances, learned Lower Appellate Court has materially erred in rejecting the application Exhs.32 and 33 and allowing application Exh.22 in dismissing the entire appeal as having been abated as a whole.
6. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds in part. The impugned common judgement and order dated 23/08/2001 passed by learned Lower Appellate Court – learned Joint District Judge, Surat at Vyara below Exh.22 is hereby quashed and set aside and learned Lower Appellate Court are directed to decide and dispose of the appeal qua appellant Nos.1 and 2 – original defendant Nos.1 and 2 in accordance with law and on merits. The impugned common judgement and order dated 23/08/2001 passed by learned Lower Appellate Court – learned Joint District Judge, Surat at Vyara below Exhs.32 and 33 are hereby confirmed. Rule is made absolute accordingly to the aforesaid extent. No costs.
Registry is directed to return the record and proceeding of the case to the learned Lower Appellate Court immediately.
[M.R.SHAH,J] *dipti