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TMI Blog1997 (3) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhagwan Dass Sud and Sons, Hoshiarpur. Bhagwan Dass Sud claimed that the firm was a firm of Hindu undivided family. He further claimed that he had been filing income-tax returns of this concern up to the assessment year 1955-56. Huge arrears of income-tax fell due against the Hindu undivided family firm. The income-tax authorities sought to recover the arrears of income-tax as land revenue. Recovery proceedings were initiated by the Tax Recovery Officer of the Income-tax Department. The property in dispute was attached vide his order dated March 21, 1969. Amrit Lal, one of the sons of Bhagwan Dass Sud, claimed to be the sole owner of the property. He filed objections before the Tax Recovery Officer pleading that the suit property was not liable to be attached and sold for recovery of arrears of income-tax due from the Hindu undivided family firm. On January 11, 1971, the objection petition filed by Amrit Lal was dismissed. On January 13, 1971, Amrit Lal filed Civil Suit No. 357 of 1971 seeking three declarations : that he was the sole owner of the suit property; that the suit property was not liable to attachment and sale for the recovery of arrears of income-tax; and that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ud on record. On this application, the other four sons of Bhagwan Dass Sud were impleaded as respondents Nos. 2 to 5 as his legal representatives. The learned First Additional District Judge, Hoshiarpur, dismissed the appeal holding that it was incompetent, with no order as to costs. I have heard learned counsel for the parties and have carefully gone through the record. It was argued by learned counsel for the appellant that Amrit Lal plaintiff had not claimed any relief against Bhagwan Dass Sud-defendant. The relief, if any, was claimed against the contesting defendants. Bhagwan Dass Sud despite service did not put in appearance and contest the suit. He was proceeded against ex parte in the trial court. Amrit Lal-plaintiff being the son of Bhagwan Dass Sud was already on record and the estate of Bhagwan Dass Sud was being represented by him. Even if his legal representatives were required to be brought on record, it was the duty of the plaintiff to make an appropriate application for bringing the legal representatives of the deceased on record, but he failed to make any such application within the statutory period. Therefore, the trial court should have dismissed the suit as ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate court was not justified in dismissing the appeal without going into the merits of the case and the appeal deserves to be allowed. The judgment and decree under appeal may be set aside and the suit filed by the plaintiff is liable to be dismissed. After hearing learned counsel for the parties at length, I am of the view that the appeal deserved to be allowed and the case should be remanded to the first appellate court for decision on the merits. In State of Punjab v. Nathu Ram [1962] AIR 1962 SC 89, it was held by the apex court that when Order 22, rule 4, Civil Procedure Code, does not provide for the abatement of the appeals against the co-respondents of the deceased respondent, there can be no question of abatement of the appeal against them. The only question is whether the appeal can proceed against them. The provisions of Order 1, rule 9, Civil Procedure Code, also show that if the court can deal with the matter in controversy as regards the rights and interest of the appellant and the respondents other than the deceased-respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whatever relief was claimed by Amrit Lal Sud plaintiff was claimed against defendants Nos. 1 and 2 only. No relief was claimed against Lala Bhagwan Dass Sud, defendant No. 3. The suit was not contested by Lala Bhagwan Dass Sud as he was proceeded against ex parte. Amrit Lal Sud, plaintiff, examined himself before the trial court on May 24, 1976. In his cross-examination, it was stated by him that Lala Bhagwan Dass Sud had died a few months ago somewhere in the month of January, 1976. Amrit Lal Sud plaintiff did not make any application for striking off his name from the array of the defendants nor he made any application to bring his legal representatives on record perhaps in view of the fact that he himself being the legal representative was already on the record and that he was not seeking any relief against him. None of other four sons or any other legal representative of Lala Bhagwan Dass Sud made any application for impleadment as such. Even the trial court did not take care to strike off the name of Lala Bhagwan Dass Sud from the array of the defendants and the suit was allowed to proceed. The suit was decreed in favour of the plaintiff Amrit Lal Sud. The name of Bhagwan Das ..... X X X X Extracts X X X X X X X X Extracts X X X X
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