Mwichande v Bwajuma and Others (Civil Appeal No. 63 of 1952) [1953] EACA 15 (1 January 1953)

### APPELLATE CIVIL

#### Before WINDHAM, J.

#### KIBWANA BIN MWICHANDE, Appellant (Original Plaintiff)

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## BIJUMA BINTI BWAJUMA AND OTHERS, Respondents (Original Defendants)

# Civil Appeal No. 63 of 1952

Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 44 rule 1 (1)—Application for Review—Error on face of record—Judgment pronounced after death of party—Representative not joined—Whether judgment a nullity—Declaratory judgment—Whether severable and valid against surviving respondents—Costs.

The appellant claimed unsuccessfully to be declared the lawful son of one Mwichande, deceased, in the Kadhi's Court, Mombasa, and appealed. The Supreme Court reversed the declaratory judgment but, in the interval between filing the appeal and hearing, the second respondent had died, nor was there substitution of her representative under Order 23. The appellant applied for a review on the ground that there was an error on face of the record and that the judgment on appeal was a nullity.

Held $(30-9-53)$ —(1) The judgment of the Court on appeal was a nullity as against the second respondent, having been made after her decease.

(2) The declaratory judgment on appeal was unseverable and, being a nullity against the deceased second respondent, was in the circumstances altogether a nullity.

(3) Ordinarily, the applicant would have been liable for the costs of the application. his being the duty to see that the representatives of the deceased respondent were properly joined, but as he had without success invited the advocate of the deceased to take the necessary steps it would be fair to make no order for costs.

Application for review allowed.

Cases cited: Ganga v. Gobind Das, (1934) I. L. R. 15 Lah. 879; Kundanbai v. Satharyan, (1951) A. I. R. Nag. 270.

Inamdar for applicant/appellant.

D. D. Doshi for first respondent.

DECISION: This is an application under Order XLIV, rule 1 (1) of the Civil Procedure Rules, for a review of a judgment on appeal given by this Court on 15th May, 1953. The application is made upon the ground of an error now apparent on the face of the record, namely the undisputed fact that, between the date when the appeal was lodged (15th July, 1952) and the date when it was argued (1st May, 1953) the second respondent to the appeal died, on 14th December, 1952, and that no substitution of parties under Order XXIII was<br>made or applied for. This application is made by one of the deceased respondent's two heirs.

This is, I consider, a proper case for making the review order sought. There can be no doubt that, at least so far as the rights of the second respondent are concerned, this Court's judgment on appeal was a nullity, as having been made against her when she was a deceased person. Ganga v. Gobind Das, (1934) I. L. R. 15 Lahore, 879. Nor is this a case where the judgment on appeal can be a nullity as against one respondent and good as against the others. For the judgment is a declaratory one, declaring the appellant (the first respondent in the present application) to be the son of the deceased man and entitled as such to inherit the whole of the latter's estate subject to the widow's share. The since deceased second respondent claimed to be a deceased man's daughter, and as such to be entitled to a share in his estate. To hold that the judgment on appeal is bad as against one respondent and still good as against the others would therefore be to hold that the appellant is the son of the deceased man as against one respondent but not to be his son as against the others: which in a declaratory judgment would be absurd. The judgment is obviously unseverable, and the provisions of Order XXIII of the Civil Procedure Rules relating to survival of causes of action and to abatement of suits cannot apply. The judgment being a nullity as against the deceased second respondent is a nullity altogether.

I therefore grant this application for review. I declare the judgment on appeal to be a nullity, and I direct that the appeal be reheard after the proper parties to it have been joined. As regards the applicant's costs of this application, these would in an ordinary case be payable by the contesting respondent, namely the first respondent, who was the appellant in the appeal; for it is the duty of a plaintiff or appellant to see that all necessary defendants or respondents are properly joined and that any substitution of parties rendered necessary by the death of one of them is duly effected. Kundanbai v. Satnaryan, (1951) A. I. R. Nagpur, 270. But in the present case the appellant did, through his advocate, write to the advocate of all three respondents to the appeal informing him of the death of the second respondent and inviting him to take the necessary steps, but the respondents' advocate did not reply. In the circumstances I think it was at least incumbent upon the respondents' advocate to inform the appellant's advocate who were the legal representatives of his deceased client the second respondent, so that they might be substituted for her as parties, and I do not think the appellant (the contesting respondent in this application) is wholly or even chiefly to blame for the error which ensued and which necessitated this application for review. It may be argued that the present applicant was not to blame either, since she was not a party to the appeal. But I think that, as touching the question of the costs of this application, it would be only fair to hold her responsible for the inaction of the advocate of her deceased mother whose legal representative she is and through whom she claims. In short, I think the fairest course will be to make no order for the costs of this application, and I make no order accordingly.