It is his further case that the post of Chief(Khullakpa) of the village Lamdan Kabui is hereditary as per the Rongmei Kabui Customary Law and as per which on the death of the chief of the village, the eldest clan member /son becomes the chief. 2 (4) The original plaintiff filed an application seeking injunction under Order XXXIX Rule 1 again seeking to restrain the respondent from acting as chief, felling of trees and collecting of house tax. (5) On 23.12.2014, the respondent filed a suit(Original (Injunction) Suit
Also Read: https://newslaw.in/supreme-court/supreme-courts-analysis-on-advocates-on-record-system/
No 39 of 2014) seeking to restrain the appellant from acting as village chief. (7) The findings of the High Court at paragraph No 11 are as follows: “[11] It is however significant to note that the suit prayer of Maringmei Thaitoungam was not only to declare him as the existing or continuing Chief of Lamdan Kabui Village but also to declare the order dated 20.01.2014 passed by the Deputy Commissioner, Churachandpur, to be null and void.
Therefore, the plea of Maringmei Khuripou that the cause of action in the suit stood extinguished in its entirety upon the death of Maringmei Thaitoungam, the sole plaintiff, cannot be accepted.” After so finding, the High Court has proceeded to notice that the Original (Declaratory) Suit No 3 of 2014 filed by the appellant’s father had abated long back in December, 2014, on account of the death of the sole plaintiff. (8) The High Court observed that procedure while is only handmaid of justice but it could not be ignored to the extent of dealing with an appeal on merits when the basis of the order under appeal stood demolished. A combined reading of Order XXII, Rules 3, 4 and 11, of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit.
In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit. Therefore, that order enures for the subsequent stages of the suit.” (10) The learned Counsel for the respondent, on the other hand, would submit that the position at law canvassed by the 7 appellant is unexceptionable and the High Court may have been in error in ignoring the effect of the order by which the District Court had in the civil miscellaneous appeal brought on record the appellant as legal representative of the original plaintiff-appellant’s father.
(11)
In the suit as we have noticed, Suit No 3 of 2014, which was the suit filed by the father of the appellant, the High Court has entered the finding as we have noticed in paragraph 11 of the impugned order. In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit. The original plaintiff-appellant’s father having passed away during the pendency of the appeal, the legal representative that is the son of the original plaintiff viz., the appellant, was brought on record by the order of the Court dated 18.09.2014 in the appeal. (13) Having so found, the question arises as to whether it should go back to the District Judge for consideration of the appeal or whether it should be remitted to the High Court for considering the complaint of the respondent that the appeal before the District Judge was not maintainable having regard to the death of the original plaintiff in Original (Declaratory) Suit No 3 of 2014.
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We record the submission and we allow the appeal and set aside the order of the High Court and having regard to the commonality of the issues which appear to arise and the commonality of the parties to the suits, we further direct that Original (Declaratory) Suit No 3 of 2014 and Original (Injunction) Suit No 39 of 2014 shall be consolidated and the cases be disposed of as early as possible and within a period of eight months from the date of production of a copy of this judgment before the Civil Judge (Senior Division), Churachandpur. CORAM : HON’BLE MR. JUSTICE K.M. JUSTICE HRISHIKESH ROY For Petitioner(s) Mr. Bharat Singh, Adv.
The appeal is allowed in terms of the signed reportable judgment. (NIDHI AHUJA) (MATHEW ABRAHAM)
AR-cum-PS COURT MASTER (NSH) [Signed reportable judgment is placed on the file.]
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12
Case Title: MARINGMEI ACHAM Vs. M MARINGMEI KHURIPOU (2022 INSC 1160)
Case Number: C.A. No.-008104-008104 / 2022
