Annamalai Padayachi (died) and others vs Theagarajan

Maharajan, J.—This revision petition is directed against the order of the Revenue Court, Kumbakonam, directing eviction under S. 3 (4) (b)

of the Madras Cultivating Tenants Protection Act Madras Act (25 of 1955). Thiagarajan, the respondent herein, and Dhanapackiam, his mother,

filed the petition under S. 3 (4) (a) of Madras Act 25 of 1955 in the Revenue Court for eviction of one Annamalai Padayachi (since dead) and

Kumaraswami, the petitioner. By his order dated 4th February 1971, the presiding officer of the Revenue Court, directed ""the respondents to

deposit in court a sum of Rs. 1506-83 on or before 10th February 1971 and report the fact to this court on 11th February 1971, failing which he

will be evicted from the suit lands"". In pursuance of this interim order the matter was taken up on 18th February 1971 and the following final order

was passed:

When the case is taken up today for hearing, both the petitioner and the respondent are present. The petitioner has made an endorsement on the

petition stating that the respondent has not paid the amount as per interim order. The respondent wants further time for payment and he has not

chosen to make payment so far. The respondent is going on applying for time, without making any payment and he is not earnest in remitting the

amount. Interim order has not been fulfilled by the respondent. Under S. 3 (4)(b) of the Act 25 of 1955, the Tamil Nadu Cultivating Tenants

Protection Act as amended, I direct the respondent be evicted from the suit lands.

It is against this order, Kumaraswami, one of the two tenants on record has preferred this revision petition.

In his affidavit, the revision petitioner asserts that Dhanapackiam, who figured as the second petitioner in the Revenue Court, and who was the

mother of Thiagarajan, died on 14th June 1970, that is to say, about 8 months prior to the date of the preliminary order and final order passed by

the Revenue Court. He also complains that though he brought this fact to the notice of the Revenue Court and prayed that the legal representatives

of Dhanapackiam should be brought on record the Revenue Court refrained from taking any steps in this behalf. It is further averred in the affidavit

that Annamalai Padayachi, who figured as the first respondent in the Revenue Court, and who was the father of the petitioner, died on 27th

December 1970, that is to say, about two months prior to the date of the interim and final orders of the Revenue Court and yet no legal

representative of Annamalai Padayachi was added. It is the definite assertion of the petitioner that he objected to the interim order on the ground

that it was a nullity, because one of the two petitioners and one of the two respondents had died even prior to the date thereof. It is further averred

that after the interim order was passed the petitioner herein filed a petition bringing the above facts to the notice of the Revenue Court; but the

revenue Court dismissed the case on 18th February 1971 and passed the final order of eviction on that date. Though the respondent to this petition

has filed a counter affidavit in these proceedings, he has not chosen to deny the allegations made by the petitioner, except to say that even after

Annamalai Padayachi''s death the petitioner is continuing to cultivate the entire extent of the land thereby presumably meaning that the non-

impleading of the legal representatives of Annamalai Padayachi does not vitiate the order of the Revenue Court. I shall therefore proceed to

discuss the objection of the petitioner on the assumption that during the pendency of the proceedings before the Revenue Court and even before

the interim order dated 4th February 1971, Dhanapackiam, one of the petitioners, and Annamalai Padayachi, one of the respondents had died and

the Revenue Court proceeded with the enquiry without impleading the legal representatives of either, despite the fact of their deaths having been

brought to its notice. Under Or. 22, rule 3 C.P. Code, where one of two or more plaintiffs dies and the right to sue does not survive to the

surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court on an application made in

that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Cl. (2) of the rules says

that where within the time limited by law no application is made under Sub-R. (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. It is not known who are the legal representatives of Dhanapackiam. Therefore, it is not not possible to say

if the right to apply for eviction of a tenant survived upon the death of Dhanapackiam to Thiagarajan alone. If it did, it is the duty of the court under

O. 22, R. 2 to cause an entry to be made on the record to the effect that the right of Dhanapackiam to sue survived to Thiagarajan, whereupon the

petition should have been proceeded with at the instance of the surviving petitioner. Similarly, it is not known who are the legal representatives of

Annamalai Padayachi, one of the tenants who died during the pendency of the proceedings before the Revenue Court. If Kumaraswami, the

petitioner herein is the only legal representative of Annamalai Padayachi, it may be said that the right to sue survives against the surviving

respondent alone (Kumaraswami) and the court shall cause an entry to the effect to be made in the record and proceed with the petition against the

surviving respondent. If, on the other hand, there are other legal representatives of Annamalai Padayachi than Kumaraswami, the right to sue does

not survive as against Kumarasami alone and under R. 4 of O. 22 , C.P. Code, the court shall cause the legal prepresentative of the deceased,

Annamalai Padayachi to be made a party and shall proceed with the petition. In Seshamma v. Venkattu 47 M.L.J. 235 it has been held that a

decree passed against a defendant who died pending suit without bringing his legal representative on the record is a nullity and it cannot be

executed against the legal representatives. In Narain v. Kaluram (1920) II L. L.J. 144 it has been ruled that a decree passed against a respondent

in ignorance of the fact of his death is also a nullity. In a case where the plaintiff had applied to bring on record bona fide and owing to ignorance,

only two out of the three legal representatives of the deceased defendant, the Patna High Court laid down�(1) where all the legal representatives

of the deceased were already on record there was no need for application for substitution; (2) where the deceased had left behind a number of

legal representatives, some of whom only were on record, an application for bringing on record the other heirs was necessary ; and (3) where an

application is made to substitute only some of the heirs, there will be no abatement if the applicant acted bona fide ; but if he acted mala fide the

suit would abate�Vide Parameswaranath Prasad Singh v. Babu 1964 A.P. 116.

That the Revenue Court was aware of the death of one of the respondents can be gathered from the dubious language employed in the interim

order. It says : ""I direct the respondents to deposit......failing which he will be evicted from the suit lands"". There is a significant contradiction

between the plural used in the earlier part of the order and the singular used in the later part. Evidently, the court was not sure if it was passing the

order against the dead respondent or the living one or both. I have no doubt that the failure of the Revenue Court to bring on record the legal

representatives of one of the petitioners and one of the respondents despite its attention having been drawn to their death, constitutes a material

irregularity vitiating its order.

It is contended on behalf of the respondent that the Revenue Court is untrammelled by the rules of procedure laid down in the Civil Procedure

Code. I am unable to agree. In the first place, even apart from the Code, commonsense requires that an order shall not be passed in favour of or

against dead persons, because such orders will lead to startling difficulties in execution. In the second place, under clause (1) of rule 8 of the

Madras Cultivating Tenants Protection Rules, every Revenue Court constituted under the Act shall have the powers exercisable by a civil court in

the trial of suits. Clause (ii) of Rule 8 prescribes that ""the proceedings of the court shall be summary and shall, as far as possible, be governed by

the provisions of the Civil Procedure Code, 1908, with regard to�

(a) the issue and service of summons;

(b) the examination of parties and witnesses;

(c) the production of documents;

(d) the amendment of pleadings;

(e) the addition of parties;

(f) the passing of ex parte orders and setting them aside for good cause;

(g) the ordering and dismissal for default of appearance and setting aside such orders for good cause;

(h) local inspection.

(i) passing of orders and

(j) the enforcement of any order, decision or award passed under the Act.

The provisions of rules 35, and 95 to 103 of Order 21 of the CPC shall, as far as possible, be applied to proceedings under this rule"". The learned

counsel for the respondent contends that this rule does not specifically extend to the proceedings of the Revenue Court such of the provisions of

the CPC as relate to the addition of legal representatives. It may be noted that the rule does not name the sections of the CPC which are

applicable, but merely says generally that the provisions of the CPC with regard to amendment of pleadings, addition of parties, etc, shall govern

the proceedings before the Revenue Court. Order 22, rules 3 and 4 say that the court, on an application made, shall cause the legal representative

of the deceased plaintiff or defendant to be made a party. These rules clearly relate to ''the addition of parties'' contemplated in rule 8 of the

Madras Cultivating Tenants Protection rules. It is, therefore, idle to contend that the Revenue Court is not bound by these rules. The refusal of the

Revenue Court to comply with these and allied rules of the CPC constitutes a material irregularity which vitiates its order. I, therefore, allow the

civil revision petition, set aside the order of the Revenue Court, direct it to conform to the rules of the CPC relating to the addition of the legal

representatives of the deceased Danapackiam and Annamalai Padayachi and proceed to dispose of the petition in accordance with law. In the

circumstances of the case, there will be no order as to costs.