Dave v Lakhani (Civil Appeal No. 1151 of 1951) [1955] EACA 132 (1 January 1955)

## $132$

### APPELLATE CIVIL

#### Before CONNELL, J.

#### AJWALIBEN w/o SHIVSHANKER KANJI DAVE, Appellant

ν.

# MOHANLAL KALYANJI LAKHANI, Respondent Civil Appeal No. 1151 of 1951

## Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 23, rules 1 and 4 (3) and rule 8 (1) (2)—Death of appellant—Whether appeal abated by operation of law or requires order of Court-Appellant non-suited by Rent Control Board-Whether suit abated-Costs.

An applicant before the Rent Control Board was non-suited and appealed. He obtained an order from the Appeal Court remitting the cause back to the Board on a matter of procedure and for costs of the remit, the other costs being reserved. The Board complied with the order and sent back the appeal to the Appeal Court for disposal. The death of the appellant ensued before the appeal could be heard. The widow obtained an order bringing her upon the record as the representative of her deceased husband. The original claim was a personal one requesting the Board to allocate new shop space in place of demolished premises. The respondent asked for the appeal to be dismissed with costs.

Held (3-3-55).—(1) Abatement under Order 23 of the Civil Procedure (Revised) Rules, 1948, is<br>by operation of law and not by order of the Court. The appeal had abated *ipsa lege*<br>on the death of the appellant. The applicati

(2) The basis of the suit was personal to the applicant and after his death the appellant's representative was wrongly brought on the record; the cause of action did not survive the death.

(3) The proper course for the appellant's advocate was to have informed the Registrar that the appeal had abated but as he had not done so and as the respondent had not taken this point and had pressed for the appeal to be dismissed neither side<br>had correctly appreciated the meaning of "abatement" and each party was ordered to bear his own costs.

Authority cited: Mulla, Code of Civil Procedure, 12th edn., Vol. 2, pp. 937 and 950.

Trivedi for appellant.

Nowrojee for respondent.

ORDER.—This appeal file is placed before me for further orders $(a)$ as to the appeal itself. $(b)$ as to costs.

On 5th December, 1951, the appellant from the Rent Control Board obtained on order from this Court remitting the case back to the Rent Control Board on a matter of procedure and ordering that "the costs of remitting the case to the Rent Control Board will be borne in any event by the respondent, the other costs in the lower Court and in the appeal are reserved". The Rent Control Board duly complied with the procedure and sent the appeal back for final disposal to the Supreme Court. Before the appeal could be finally disposed of, the appellant was unfortunately shot dead by terrorists on 1st January, 1954.

On 7th July, 1954, Mr. Trivedi for the appellant obtained an ex parte order bringing the deceased widow on record as appellant in the place of her deceased husband.

Now in the first place I am of the opinion that the cause of action of the appellant did not survive after his death; the original claim was a purely personal one requesting the Rent Control Board to consider allocating to the claimant (deceased) some new shop space in respect of demolished shop premises, in respect of which the claimant was a sub-tenant of previous "verandah premises" before demolition. The appeal therefore abated and did not survive on the death. of Shivshanker Kanji Dave (appellant) as the claim was a purely personal one. Under these circumstances the matter now comes before me as to (a) formal orders concerning the appeal or the abatement and $(b)$ as to costs.

As to $(a)$ in my view an "abatement" is not tantamount to a "dismissal" of a suit or an appeal. A distinction is clearly made between the two in Order 23. Rule 1, rule 4 (3) and rule 8 (1) and (2). Nor do I consider it necessary that the $\alpha$ Court shall "pass an order" that the suit shall abate: that this is so is clearly brought out in the notes on *Mulla*, *Code of Civil Procedure*, 12th edn., page 937. Vol. II. Abatement under the Civil Procedure Rules of Kenya is by operation of law and not by order of Court.

As to how far an "abatement" is to be regarded as an abatement of thewhole proceedings (including an original suit and an appeal) I have found noprecedent in Kenya or in the English Law Reports. There is, however, a notein Mulla, Code of Civil Procedure, 12th edn., page 950, Vol. II, to this effect:

"Appellate Court and Abatement.—Where a defendant appeals from a decree and the plaintiff respondent dies pending the appeal without the legal representative being joined within the period of limitation, it is the appeal which abates and not the suit."

This principle I think is a useful guide although, as I have already stated. the cause of action did not survive; it is to be noted however, that in the instant proceedings the appellant did die after the appeal was filed but before it was concluded. So much for the question of abatement. The appeal, I find abated. after 1st January, 1954, but not the original order by the Rent Control Board.

I now come to $(b)$ costs, as to which, in the absence of precedents in England: and Kenya, I find myself in some difficulty.

The Indian Civil Code makes provision for such eventuality in Order 22, rule (2), "where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff". This section, however, presupposes that the right to suesurvives.

In the instant proceedings, the claimant-appellant was non-suited by the Rent Control Board. Before he died he succeeded in having the case remitted back to the Board on a point of procedure; the Board complied with the procedure but before the Appeal Court could pronounce finally the appellant died. The merits of the appeal obviously cannot be argued by counsel, and for that reason the whole basis of the Court's provisional order as to costs made on 5th December. 1951, has disappeared. There is a slight complication in that Mr. Trivedi, in my opinion wrongly, obtained an order $ex$ parte that the appellant's representative bebrought on record in substitution for the appellant, I say "wrongly", as the causeof action did not and could not survive.

Probably Mr. Trivedi's correct course was to do something in the nature outlined in the English Procedure, Order 17, rule 9, namely to inform the Registrar that the appeal had "abated". If Mr. Nowrojee had taken this point earlier, I

should have been inclined to have allowed him the costs of "attendances" necessitated by the appellant's failure to take that course. Mr. Nowrojee has, however, merely pressed for the appeal to be dismissed with costs subject to an allowance for one day's attendance before this Court when the case was remitted and subject to appellant's costs of attendances before the Rent Control Board when the case was remitted.

In my view, neither side have appreciated correctly the meaning of an<br>"abatement" and I shall order that each side do bear its own costs in the appeal and in the remission before the Board.