This appeal arises under the following circumstances. The Appellant is the plaintiff who filed a suit on 18th Amardad, 1358-F. (11th September, 1948). It would appear that during the pendency of the suit in the trail Court, the sole defendant died on 9th July, 1953. This fact of the death of the defendant was brought to the notice of the Court by the defendant's vakil on 9th July, 1953. The plaintiff instead of filing an application for bringing on record the legal representative of the deceased defendant, filed an application for amending the plaint by bringing on record the legal representatives of the deceased defendant alleging that they are liable to pay the amount of the suit. This application for amendment of the plaint was filed on 28th July, 1953. On 31st July, 1953, the proceedings would show, that the advocates of both the parties were present and the Court passed an order allowing the plaintiff to amend the plaint and directing notice to be issued to the proposed legal representatives and the case appears to have proceeded further. Finally, on 31st March, 1955 the Court passed an order dismissing the suit of the plaintiff on the ground that the suit had abated by reason of the plaintiff not having applied for bringing on record the legal representatives of the deceased defendant within time. The order says that the record does not show that there was any application to bring on record the legal representatives. The Court did not agree with the contention of the Advocate for the plaintiff that the plaintiff by filing an application for amendment of the plaint by bringing on record the legal representatives, had substantially complied with the provisions of Order 22, Civil Procedure Code. Therefore, in the view that the Court held that the application for amendment of the plaint was not an application contemplated by law, it held that the suit had abated and dismissed the suit. Against this order, the plaintiff preferred a Civil Miscellaneous Appeal to the lower appellate Court where an objection was taken that no Civil Miscellaneous Appeal would lie against this order and when the Court also was of that opinion, the plaintiff appellant in the lower appellate Court prayed that if for any reason the Court thought that a Civil Miscellaneous Appeal would not lie, he might be given time to convert it into a regular appeal and to pay the requisite Court-fee his prayer was rejected. In the result the appeal was dismissed. The plaintiff has now come up in second appeal to this Court.
2. Learned counsel for the respondent raised a preliminary objection that no second appeal lay against an order passed in a Civil Miscellaneous Appeal and relied upon section 104(2), Civil Procedure Code. With regard to this objection it has to be stated that the order cannot be regarded as an adjudication or a final order in the Civil Miscellaneous Appeal coming within section 104(2). The order only rejected the appeal as being incompetent. Where, therefore, the order cannot be regarded as coming within section 104(2), that section cannot be a bar to an appeal against an order that had been passed. Further, if it is an order rejecting an appeal it would come under the definition of a decree under section 2 and if it is a decree, an appeal would certainly lie. That the appellate Court has the same powers as the original Court in passing orders is also clear from section 107(2) of the Civil Procedure Code. This order, in my opinion, is only an order rejecting the appeal and section 107(2) read with Order 7, rule II, Civil Procedure Code, would bring it within the definition of a decree under section 2. This preliminary objection, therefore fails.
3. As regards the merits, the order passed by the trial Court has been under a misapprehension. The trial Court says that the application for amending the plaint was filed on 31st July, 1954. This is an obvious mistake. The date on the application for the amendment of the plaint as found on the reverse of the application is 31st July, 1953. The proceedings of 31st July, 1953 also would show that this application was filed on that day, because the trial Judge says an application has been filed for amending the plaint. That being so, there can be no doubt that the application for amendment was filed on 31st July, 1953. It was certainly within time, the deceased having died only on 9th July, 1953. The only objection is that there ought to be a formal application under Order 22, rule 4, Civil Procedure Code and the application for amending the plaint was misconceived. What Order 22, rule 4, Civil Procedure Code says is that where a sole defendant or a sole surviving defendant dies and the right to sue survives, on an application being made in that behalf, the Court shall cause the legal representative of the deceased defendant to be made a party. What is envisaged by this provision is that the fact of the death of a party should be brought to the notice of the Court and the Court should be apprised of the fact as to who the legal representatives of the deceased are and on such application being made, the Court shall take such proceedings as would be necessary to bring them on record after notice to the legal representatives. In this case, the plaintiff instead of following this procedure, filed an application for amendment of the plaint and merely caused to be substituted in place of the deceased defendant, his legal representatives. No doubt he also sought to amend a paragraph in the body of the plaint to say that the legal representatives are liable to pay the amount. That would not make any difference in my opinion. I am of opinion that this would amount to a substantial compliance with Order 22, rule 4, although there was no application in the form contemplated by Order 22, rule 4. That could not have been a ground for holding that the suit had abated and for dismissing the suit. Inasmuch as the order of abatement and the dismissal of the suit was based on a misapprehension, that order will have to be set aside. The suit would be restored and heard on the merits. This appeal is, therefore, allowed, the judgments of the Courts below are set aside. The case will go back to the trial Court for trial afresh. The proceedings in the trial Court will start from the stage where they stopped. The respondent will pay the costs of the appellants in the Courts below. The appellant will be entitled to a refund of the Court-fee paid on the memo, of appeal. No leave.
4. M.S.K
Appeal allowed; Suit remanded; No Leave.