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Fajor Banu v. Rohim Box Bhuiya
Factual and Procedural Background
This was a suit for recovery of possession brought by Abdul Majid. During the suit Abdul Majid died and two of his sons applied for substitution under Order 22, r.3, Civil Procedure Code. The Defendant pointed out that a third son, Ahamadulla, survived Abdul Majid; Ahamadulla was not included in the substitution application and did not apply to be made a party. At trial an issue was raised whether Ahamadulla was one of the legal representatives; the trial Court held he was not and proceeded to decide the suit in favour of the Plaintiffs. The Defendant appealed and sought to adduce further evidence at the hearing of the appeal to show that Ahamadulla was a son of Abdul Majid. The Respondents sought leave to adduce further evidence to rebut that contention. The appellate Court, on review of the evidence before the District Judge, declined to disturb the District Judge's finding and upheld the dismissal of the suit on the ground that the legal representatives had not been duly substituted and the suit had abated under Order 22, r.3.
Legal Issues Presented
- Whether an application for substitution under Order 22, r.3 was effective when made by only two of the deceased plaintiff's sons while a third son (Ahamadulla) survived but was neither joined nor applied for substitution.
- What the term "legal representative" in Order 22, r.3 encompasses—whether it includes all legal representatives known or ought to have been known to the applicant.
- Whether an erroneous finding of fact by the trial Judge as to heirship (under Order 22, r.5) can be treated as not affecting the decision of the case within section 105 of the Civil Procedure Code, thereby preventing abatement of the appeal.
Arguments of the Parties
Appellants' Arguments
- Order 22, r.3 did not apply because an application for substitution was duly made by the "legal representative" of Abdul Majid within Order 22, r.3.
- Alternatively, under Order 22, r.5 and section 105, the trial Judge's alleged erroneous finding that Ahamadulla was not a son did not affect the decision of the case on the merits; therefore the appeal had not abated.
Respondents' Position
- The Respondents did not object to the admissibility of further evidence at the appeal stage and applied for leave to adduce further evidence to rebut the Appellant's contention that Ahamadulla was a son of Abdul Majid.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ghamandi Lal v. Amir Begum (1) | "Legal representative" in Order 22, r.3 means the legal representative or representatives of the deceased plaintiff, or all the representatives of whom the representative applying knew or ought to have known. | Relied upon to interpret "legal representative" in Order 22, r.3 and to hold that substitution by only some representatives was insufficient where others were known or ought to have been known. |
| Haidar Hussain v. Abdul Ahad (2) | Supports the same interpretation of "legal representative" in Order 22, r.3 as cited above. | Applied alongside Ghamandi Lal to construe Order 22, r.3 as requiring attention to all representatives known or ought to have been known. |
| Bhikaji ??? v. Purshottam (3) | The opinion cites this authority in relation to the proposition that a bonâ fide application by all the representatives who are willing to join may be sufficient under Order 22, r.3. | This citation was used to note that different considerations may arise where some representatives are unknown or unwilling to join, and a bona fide application by those willing may suffice. |
| ??? v. Ramayya (4) | This authority is cited in the opinion in the same context as Bhikaji ??? v. Purshottam regarding willingness of representatives to join substitution. | The court referenced it as part of authorities addressing sufficiency of applications by willing representatives; the opinion's text is fragmentary. |
| ??? v. ??? (5) | Cited alongside other authorities about substitution where some representatives are unknown or unwilling. | Mentioned as part of the group of authorities on the point; the provided opinion is fragmentary and does not state further specifics. |
| Sayma Bibi v. Madhusudan Mohanta* (6) | Defines "affecting the decision of the case" within section 105 as meaning affecting the decision of the case on the merits. | Relied upon to assess the Appellant's contention that the trial Judge's error did not affect the decision on the merits and therefore the appeal had not abated. |
| Sankali v. Murlidhar (7) | Holds that "error, defect or irregularity" in section 105(1) refers to an error, defect or irregularity in law or procedure and not an incorrect finding of fact. | Applied to reject the argument that an incorrect finding of fact by the trial Judge could be treated as an error under section 105 to save the appeal from abatement. |
| Balabai v. Ganesh Sankar (8) | Supports the principle that "error, defect or irregularity" under section 105(1) is limited to legal or procedural errors, not incorrect factual findings. | Used alongside Sankali v. Murlidhar to conclude that the trial Judge's factual finding did not fall within section 105 remedial scope. |
Court's Reasoning and Analysis
The Court examined the evidence before the District Judge on the factual issue whether Ahamadulla was a son of the deceased and found no basis to disturb the District Judge's finding. The District Judge had dismissed the suit on the ground that the legal representatives of Abdul Majid had not been duly substituted and that the suit had abated under Order 22, r.3, Civil Procedure Code. The Court construed "legal representative" in Order 22, r.3 to mean the legal representative or representatives of the deceased plaintiff, or all the representatives of whom the representative applying knew or ought to have known, relying on Ghamandi Lal v. Amir Begum and Haidar Hussain v. Abdul Ahad. The Court noted that different considerations may arise if some representatives are unknown or unwilling to join and that a bona fide application by all representatives willing to join may be sufficient (citing several authorities).
With respect to the Appellants' alternative contention under Order 22, r.5 and section 105, the Court applied the principle from Sayma Bibi v. Madhusudan Mohanta that "affecting the decision of the case" in section 105 means affecting the decision on the merits, and the authorities Sankali v. Murlidhar and Balabai v. Ganesh Sankar that "error, defect or irregularity" in section 105(1) refers to legal or procedural errors, not incorrect findings of fact. Because the challenge concerned an incorrect factual finding about heirship, the Court held that section 105 could not be invoked to prevent abatement.
Holding and Implications
DISMISSED — The appeal fails and is dismissed with costs.
Direct effect: The appellate Court upheld the District Judge's dismissal of the suit for abatement under Order 22, r.3 for failure to have all relevant legal representatives duly substituted. The opinion does not purport to establish a new legal principle beyond the authorities it applies.
The Judgment of the Court was as follows:—
This was a suit brought to recover possession of certain property by one Abdul Majid. During the pendency of the suit Abdul Majid died, and an application for substitution under Or. 22, r. 3 of the Code of Civil Procedure was made by two of his sons. At or before the hearing the Defendant pointed out that Abdul Majid died leaving him surviving a third son Ahamadulla. Notwithstanding this warning the other two sons, did not apply to have Ahamadulla substituted as one of the heirs of Abdul Majid, nor did Ahamadulla apply to be made a party to the suit. At the trial an issue was raised as to whether Ahamadulla was one of the legal representatives of Abdul Majid, and the trial Court held that he was not, and, proceeding to hear the suit on the merits, decided the case in favour of the Plaintiffs. The Defendant appealed, and it appears that at the hearing of the appeal an application was made by the Appellant to adduce further evidence in support of his contention that Ahamadulla was the son of Abdul Majid. Now, the Respondents did not take their stand upon the inadmissibility of such evidence, but applied for leave to ??? further evidence to rebut the ??? contention that Ahamad ??? one of the sons of Abdul ??? circumstances obtain Ahamadulla was one of the sons of Abdul Majid. In our opinion, in second appeal, having regard to the evidence upon this issue of fact that was before the learned District Judge, we are unable to disturb the finding at which he arrived. The learned District Judge dismissed the suit upon the ground that the legal representatives of Abdul Majid not having been duly substituted the suit abated under Or. 22, r. 3, Civil Procedure Code. On behalf of the Appellants it is urged that Or. 22, r. 3 does not apply because an application for substitution was duly made by the “legal representative” of Abdul Majid within Or. 22, r. 3. In our opinion, “legal representative” in Or. 22, r. 3 means the legal representative or representatives of the deceased Plaintiff, or all the representatives of whom the representative applying knew or ought to have known., Ghamandi Lal v. Amir Begum (1) and Haidar Hussain v. Abdul Ahad (2). It well may be that if one or more of the legal representatives are unknown or all unwilling to join in the application under Or. 22, r. 3, different considerations will arise, and that a bonâ fide application by all the representatives who are willing to join in making the application will be a sufficient ??? with Or. 22, r. 3 [Bhikaji ??? v. Purshottam (3), ??? v. Ramayya (4) and ??? v. ??? (5) ??? was to be made he would not have been willing to join in it. That contention, therefore, fails.
The learned Advocate on behalf of the Appellants further urged that, even assuming that is so, under Or. 22, r. 5 the trial Judge erroneously decided the issue as to whether Ahamadulla was the son of Abdul Majid, and, inasmuch as the learned District Judge has found that erroneous finding did not affect the decision of the case within sec. 105 of the Civil Procedure Code, the failure on the part of Ahamadulla either himself or through his brothers to join in the application under Or. 22, r. 3 was not fatal to the proceedings. Now, it has been held that “affecting the decision of the case” within sec. 105 means “affecting the decision of the case on the merits, Sayma Bibi v. Madhusudan Mohanta* (6) and cases therein cited, and the learned Advocate for the Appellant contends that inasmuch as this error on behalf of the learned trial Judge did not affect the decision of the case on the merits, the appeal has not abated. The answer to that contention appears to be that any “error, defect or irregularity in any order” under sec. 105(1) had been held to mean an error, defect or irregularity in law or procedure and not an incorrect finding of fact. Sankali v. Murlidhar (7) and Balabai v. Ganesh Sankar (8). In this case, however, error which the learned trial Judge reasons, in our opinion, the appeal fails and must be dismissed with costs.
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