RIKHU DEV, CHELA BAWA HARJUG DASS versus SOM DASS (DECEASED) THROUGH HIS CHELA SHIAMDASS

Citation: [1976] 1 S.C.R. 487 · Decided: 28-08-1975 · Supreme Court of India · Bench: A.N. RAY · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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RIKHU DEV, CHELA BAWA HARJUG DASS 
v. 
487 
SOM DASS (DECEASED) THROUGHHIS CHELA SHIAMDASS 
August 28, 1975 
[A. N. RAY C. J., K. K. MATHEW ANDY. V. CHANDRACHUD, JJ.] 
Code of Civil Procedure (Act 5 of 1908) 0. 22 rr. 3, 4 and 10--l'uit by 
de jure A1ahant against de facto Mahant for possession and nzanagement-
Death of defendant and election of another Mahant during pendency of appeal 
-If appeal abates .. 
The appellant filed the suit on the basis that as the Mahant of a Dern he 
was entitled to possession and management of the properties of its branch 
Dera. The defendant contended that it was an independent Dera and that he 
\vas in possession of the properties as its lawfully appointed Mahant.. The ' 
trial court decreed the suit but in appeal the decree was reversed. 
While the 
second appeal, preferred by the appellant, was pending in the High Court. the 
defendant died: 
As the application to implead the elected successor of the 
defendant was filed beyond the period prescribed for an application under 0. 
23, rr. 3 and 4, the High Court held that the appeal had abated and that 
there was no ground for setting aside the abatement. In appeal to this Court, 
the appellant contended that even if the Chela, who had been elected as the 
Mahan! on the death of the defendant, was not impleaded within the period 
prescribed, there would be no abatement, because he represented the Dera. 
Allo'win_g the appeal to this Court, 
HELD : ( 1) When a suit is brought by or against a person in a represen-
tative capacity and there is a devolution of the· interest of the representative, 
the rule that has to be applied is 0. 22, r. 10 and not 0. 22, rr. 3 or 4, 
whether the devolution takes place as a consequence of death or for any other 
reason. 
The: wolrd 'interest' in the rule means interest in the property, 
i.e., 
the subject matter of the suit, and the interest is the interest of the person 
who was the party to the suit. 
This rule is based on the principle that the 
trial of a suit cannot be brought to an end merely because the interest of a 
party in the subject-matter of the suit has devolved upon another during the 
pendency of the suit. The suit may be continued against the person acquiring 
the interest \vith the leave of the Court. 
[489F-G] 
In the present case, when the defendant died, the interest which was the 
subject-matter of the· suit devolved upon his successor elected as the Mahant 
of the Dent, ri11d therefore, the appeal could be continued under 0. ?2. r. 10, 
C.P.C. [489B·Cl 
(2) Though it was uncertain on the death of the defendant as to who-
\\.'OUld ~co~ the Mahant by election, it would not make any difference for 
the application ~f 0. 22, r. 10. 
The devolution of the interest in the subject 
matter of t~e stut took place when the new Mahant was elected. The suit was 
for. possession and management of the Dera and the properties appertaining 
to it by the appellant purporting to be the de jure Mahant ~gairu;t the defendant 
as a de facto Mahant. The subject matter of the suit was the inteiest of the 
defendant in the Dera and its properties and it devolved upon the new Mahant 
by virtue of his election subsequent to the death of the defendant. 
As it was 
in a repres~ntative capacity that he defendant was sued and that it was in the 
same representative capacity that the appeal was 50ught to be continued against 
. the new Mahant, 0. 23, r. 10 will apply. 
[490B-EJ 
Retnant Pillai v. Natraja Desikar A.I.R. 1924 Madras 615, Thirumalai v . 
Arunachella. A.LR. 1926 Madras 540 and Roshan Lal v. Kapur Chand, A.l.R. 
1'60 Punjab, 382, approved. 
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 159 of 1974. 
From the Judgment and Order dated 4-4-1973 of the Pnniab and 
Haryana High Court at Chandigarh in R.S.A. No. 1482 of 1961. 
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SUPREME COURT REPORTS 
[1976] 1 S.C.R. 
N. N. Goswamy and Arvind Minocha, for the appellant. 
Kapil Sibbal and D. Probir Mitra, for responde11ts. 
The Judgment of the Court was delivered by 
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MATHEW, J.-This is a'a appeal by special leave agamst a decree 
passed by the High Court of Punjab and Haryana holding Lhat 
the 
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appeal filed by the plaintiff-appellant has abated and dismissing his 
suit. 
The appellant brought the suit on the allegation t:iat thew was one 
Shiromani Nirankari Dera at Patiala, that this institution 
had two-
branches-one at Landeke in Moga Tehsil and the other at Nanga 
Kheri in the erstwhile P
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