Keshab ' Karmu Giri and Others vs Dasaratha Giri and Others

P.K. Tripathy, J.—Plaintiffs/Respondents represented by Mr. D. K. Mohapatra, Learned Advocate, have filed Misc. Case No. 1066 of 1999 on 15.10.1999, to abate the appeal because of non-substitution of the legal representatives of Respondent Nos. 11, 12, 14, 18, 20, 21 and 33.

Appellants have filed Misc. Case Nos. 771, 772 and 773 all of 1988 reporting that Respondent No. 20 died on 9.5.1982 and therefore, the delay be condoned, abatement be set aside and the legal representatives be substituted.

Appellants have filed Misc. Case Nos. 366, 367 and 368 all of 2000 with the prayer to substitute the legal representatives of Respondents 12, 14 and 33 after condoning the delay and setting aside abatement. Out of them, Respondent No. 12, died on 15.1.1991, Respondent No. 14, died on 14.1.1988 and Respondent No. 33, died on 24.9.1988.

It appears from the appeal record that after the death of Respondent No. 21 as per Order No. 37, dated 13.5.1991 name of that respondent was expunged from record on the submission of appellants and at their risk. Similarly, as per Order No. 54 dated 29.9.1994 the appeal was dismissed as against Respondent Nos. 11 and 18.

After taking note of the aforesaid factual position from the case record of First Appeal No. 3 of 1977 and before dealing with the applications relating to substitution filed by the appellants and the application relating to recording of abatement of the appeal and also its dismissal as prayed by the plaintiffs/respondents, it is appropriate to reflect in brief the case of the parties and the decision of the Trial Court.

Defendants of Goura Hari through his three sons Chandra Mohan, Nilamoni and Sartuka prosecuted Title Suit No. 64/37 of 1971 -1975 in the Court of Sub-ordinate Judge, Rairangpur. Originally, they were 27 numbers of plaintiffs but legal representatives of some of them were substituted in the suit. That suit was instituted against nine defendants. All the defendants except Defendant No. 9 challenged the impugned decree and have preferred the present First Appeal. Out of them, the Defendant Nos. 1, 2, 3, 5 and 8 presently being represented through legal representatives along with Defendant Nos. 4, 6 and 7 figuring as the ten appellants. The Co-defendant No. 9 Pitambar Mohanta has been added as Respondent No. 33. Out of the 27 plaintiffs, some of them being substituted in course of the suit, they figure as Respondent Nos. 1 to 32 in the First Appeal.

Plaintiffs filed the suit, with the prayer for declaration of title and recovery of possession of the suit schedule land along with the prayer for mesne profits from the income because the suit land remained in possession of the receiver in a proceeding u/s 145, Cr. P.C. Plaintiffs pleaded that the ancestor of the defendants having incurred loan was to satisfy a decree as judgment-debtor in Execution Case No. 15 of 1930-31 of the Court of Munsif, Karanjia, and for satisfaction of that decree the suit land was put to auction and Chandra Mohan on behalf of the joint family participated in that auction sale and purchased the land as the highest bidder. After confirmation of the Court sale, delivery of possession was given as per Order passed on 12.1.1942 in Misc. Case No. 5 of 1941-42. In the year 1963, Defendant Nos. 1, 5, 6 and 7 filed Title Suit No. 59/13 of 1963 against Defendant No. 8 and they obtained a decree and thereafter on the strength of that decree, on 6.5.1967, Defendant Nos. 1 to 4 disturbed the possession of the plaintiffs. According to the plaintiffs the decree in Title Suit No. 59/13 of 1963 is not binding on them having been passed behind their back. That dispute between the parties lead to a proceeding u/s 145, Cr.P.C. in which possession of the defendants was declared and that was also maintained in the Revisional Court. With that background and cause of action, they filed the aforesaid suit with the above noted prayers.

Defendants 1, 3 and 4 only filed a joint written statements and contested the suit. Other defendants remained ex parte. In their written statement the contesting defendants disputed to the fact of a decree against their ancestors and purchase of that land in auction sale by the plaintiff''s family. On the other hand, they asserted their claim of title and possession and stated that to nullify a sham gift deed the suit of the year 1963 was filed against Defendant No. 8 and that defendant''s title and possession over the suit land has been accepted in the proceeding u/s 145, Cr. P.C. all through out till the High Court.

Several issues were framed on the basis of the aforesaid pleadings and on analysis of the evidence on record, Learned Sub- ordinate Judge, Rairangpur on 12.10.1976, granted the impugned decree in favour of the plaintiffs declaring their right and title over the suit land and also granting the decree for recovery of possession and realisation of the mesne profits. That decree was passed on contest against the Defendants No. 1, 3 and 4 and ex parte against the other defendants,

At the risk of repetition it be noted that in Misc. Case No. 1066 of 1999 plaintiffs/respondents pray for abatement and dismissal and Learned Counsel for the respondents with reference to records of this Court, argues to record abatement and to dismiss the appeal on the grounds that:

(i) Legal Representatives of the above noted deceased respondents have not been substituted;

(ii) Applications for setting aide abatement, condonation of delay and substitution of the legal representatives of deceased Respondents No. 12, 14, 20 and 33 are devoid of merit due to negligence and non-satisfactory explanation in explaining the delay; and

(iii) Since the appeal has already been dismissed as against Respondent Nos. 11,18 and 21 therefore, interference with the impugned decree would lead to conflicting judgment.

While pressing the above noted six Misc. Cases relating to setting aside abatement, condonation of delay and substitution of legal representatives of Respondents No. 12,14, 20 and 33 appellants responded and resisted to the contention and prayer (as noted in the preceding paragraph) of the respondents. Learned Counsel for the appellants argued that:

(i) In the matter of setting aside abatement, condonation of delay and substitution of Legal Representatives, Court should adopt a liberal approach to render substantial justice by overcoming the procedural hurdles because procedural law is a hand maid of justice, and

(ii) Circumstance under which appellants prayed to delete the name of Respondent No. 21 being not disputed, deletion of that name is non-consequential. Similar is the fact situation and legal provision relating to the order of dismissal of the appeal against Respondent Nos. 11 and 18. Since the other plaintiffs as the respondents are available to the Court, any decree passed by this Court binds the estate and therefore, absence of Respondents No. 11, 18 and 21 will not lead to a conflicting judgment.

Both the parties have relied on citations in support of their respective argument.

Appellants have relied on the cases of Tilotama Bewa Vs. Tirtha Dehuri and Another, , and Babaji Dehuri and Others Vs. Biranchi Ananta and Others, . In Tilotama (supra) this Court held that to facilitate grant of substantial justice procedural rigority may not be permitted to overpower the judicial discretion and in appropriate cases delay be condoned, abatement be set aside and substitution be allowed. In Babaji (supra) inter alia this Court held that when some of the defendants prefer appeal against a judgment and decree by making the other defendants as respondents and the decree under appeal is common to them then non-substitution of legal representatives of deceased-respondent (defendants) will not result in abatement of the appeal because whether the appeal is allowed or dismissed, it will be common to them and therefore that will not lead to conflicting judgment.

Appellants also relied on the case of Collector Vs. Gourisankar Bag and Others, perhaps because of the head note in that decision that:

"2. Code of Civil Procedure, 1908: Order 22, Rule 4(4) and Rule 11 - It has no application to appeals - it is only applicable to suits."

It appears from that reported decision that plaintiffs suit was dismissed by the Trial Court but decreed by Learned District Judge in the Title Appeal {i.e., in the First Appeal). Judgment and ''decree'' of the District Judge was challenged in this Court in a Second Appeal. The dispute in that case was relating to certain tanks. Plaintiffs as the sons of the erstwhile Gountia of the concerned village claimed exclusive right, title and interest over the suit tanks and challenged the act of the Settlement Authority in recording the suit tanks in the name of the State. Defendant No. 1 i.e., the State of Orissa represented by the District Collector claimed title over the suit tank. Defendant No. 2, an individual, claimed right of irrigation from the suit tank under the title of Defendant No. 1. Defendant Nos. 3 to 11 i.e., some other Co-villagers, adopted the written statements of Defendants Nos. 1 and 2 and also claimed right of irrigation to their land from the suit tanks. Trial Court dismissed the suit on contest against Defendant Nos. 1 and 2 and ex parte against the other defendants. In that decree Trial Court recorded the findings of title of Defendant No. 1 and right of irrigation of Defendant No. 2 alone. During pendency of the Title Appeal Defendant No. 6 figuring as Respondent No. 6 died but his legal representatives were not substituted. On that admitted position the issue that came up for consideration was whether the Title Appeal had abated rendering the impugned decree non-est because of non-substitution of legal representatives of the deceased Respondent No. 6. Referring to and relying on the ratio in the case of Lakshmi Charan Panda and Another Vs. Satyabadi Behera and Others, Learned Judge held that:

"Consequently I hold that Order 22, Rule 4(4).has no application to appeals and therefore, plaintiffs cannot take shelter under this provision for not bringing on record the Legal Representatives of Lingaraj in the Title Appeal. Necessarily, therefore, it has to be held that the Title Appeal against Lingaraj abated."

(Quoted from Paragraph 11 at Page 112).

In that context, in the case of Laxmi Charan Panda (supra) it was held that :

"(6) Though under Order 22, Rule 11 a suit means an appeal so far as may be, the word ''suit'' used in Sub- rule (4) must necessarily mean in the context only suit and not appeal. In this case, deceased Respondent No. 9 contested the suit, but he was ex parte at the first appellate stage. As he contested the suit, and the word ''suit'' means ''suit'' and not ''appeal'' Sub-rule (4) has no application to such a case of abatement."

The further ratio laid in that case is that:

"(7) Even assuming that Sub-rule (4) would have application, the order of the Court dispensing with substitution in circumstances coming within the purview of Sub-rule (4) must be passed before actual abatement takes place. It is well settled that abatement takes place automatically and does not wait for the passing of actual order by the Court. Once abatement takes place, the discretion given to the Court to invoke the provisions of Sub-rule (4) cannot be exercised. The words "whichever the Court thinks fit" in the context must mean when the Court thinks fit within 90 days from the date of death and before abatement takes place. Within the period of 90 days, two courses are open to the appellants-either to file an application for substitution or to file an application praying for invoking the Court''s power for exempting them from the necessity of substituting the legal representatives of the deceased Respondent No. 9 if the conditions are otherwise fulfilled. This is the reason why the Sub-rule has been incorporated in Order 22, Rule 4 and not under Order 22, Rule 9 which lays down the effect of abatement. This view has also been taken by a Division Bench of the Calcutta High Court reported in Nani Gopal v. Panchanan 59 C WN 304. Mr. Rath''s contention is not acceptable. The Court''s power to exempt under Order 22, Rule 4(4) can be exercised only before an abatement takes place and not after."

So far as the citation relied on by the appellants no decision is cited by Respondents having a contrary view to the ratio in the case of Tilotama (supra). Grounds which have been explained relating to condonation of delay and setting aside the abatement with respect to Respondents No. 12, 14, 20 and 33 while praying for substitution of their legal representatives, though convincingly "sufficient cause" has not been satisfied, but on a liberal approach to that matter such prayers can be allowed when good cause has been shown and particularly taking note of the fact that the old pending litigation between the parties is presently fought in the High Court at cuttack and the parties reside in a far place in the District of Mayurbhanj. Thus Misc. Case Nos. 771 to 773 of 1988 and 366 to 368 of 2000 are accordingly allowed and Registry is directed to bring on record the legal representatives of the above noted deceased respondents.

Citations relied on by the Respondents are : (i) Chandramani Meher and Ors. v. Khageswar Meher and Ors. ILR 1958 Ori (ii) Anant Ch. Sahu and Ors. v. hruba Ch. Padhan (dead) and Dhadia Padhan and Ors. 1989 (I) OLR 593, (iii) Bhikari Charan Ojha '' Karu Ojha and Ors. v. Ankura Ojha and Ors. 68 (1989) CLT 528, (iv) Dinabandhu Behera and Ors. v. Kalandi Charan Mishra and Anr. 79 (1995) CLT 861, (v) State of Orissa Vs. Duti Sahu and others, and (vi) Badni (dead) by LRs. and Ors. etc. etc. v. Siri Chand (dead) by LRs. and Ors., etc. AIR 1999 SCW 720. Ratio propounded in all the above noted citations are consistent on the principle of law that due to non-substitution of the deceased respondents by bringing on record their legal representatives, there may not be abatement of the appeal if that would not lead to inconsistent or conflicting judgment. In other words, as expressed by their Lordships, appeal will abate due to non-substitution if that leads to a circumstance of conflicting decrees i.e., one passed by the Court below while all the parties to the litigation are on record and the one which may be passed by the Appellate Court in the absence of some such respondents i.e., in whose favour decree of the Lower Courts stands.

In view of the above settled position, it could have been said that there would not have been abatement of the appeal due to non-substitution of legal representatives of Defendant No. 9, Respondent No. 33. But such a consideration is purely academic inasmuch as application for substitution of his legal representatives, as per a preceding paragraph of this judgment, has already been allowed.

Similarly for the foregoing reason of substitution, there cannot be an order of abatement of appeal on the ground of non- substitution of legal representatives of deceased Respondents No. 12, 14 and 20 (some of the plaintiffs in the suit).

Therefore, the contention of the plaintiff/respondents remain for consideration relating to Respondent Nos. 11, 18 and 21.

Appeal has already been dismissed against the Respondent Nos. 11 and 18 as per order No. 54 dated 24.9.1994. Plaintiff No. 16 Benudhar Giri S/o Nilamani was figuring as Respondent No. 21. Notice sent to him returned unserved with the report that after becoming lunatic the said respondent is not traceable. Accordingly, appellant filed Misc. Case No. 335 of 1991 with the claim of civil death of that respondent on the ground that he is not heard of for nine years. In such a case recourse available to the appellants was to state whether Respondent No. 21 has left any legal heir and if so such legal representatives should have been brought on record, if they are not already on record. On the other hand if the stand of the appellants is that Respondent No. 21 has left no legal heir, then only they could have sought for exemption from substitution and deleting the name of Respondent No. 21. On a perusal of the application (Misc. Case No. 335 of 1991) it does not appear that a claim of absence of legal representatives was stated while praying to expunge the name of Respondent No. 21. On the other hand, if his absconding due to lunatic condition is the only assertion, even if the Respondent No. 21 was not heard of for nine years, then, appropriate application should have been filed to get that Respondent No. 21 represented through next friend as provided in Order 3.2 of the Code of Civil procedure. Such a step was also not taken by the appellants. Therefore, expunge of the name of Respondent No. 21 in this case, leads to a situation of no representation of the interest of Respondent No. 21 though he is one of the decree-holder and therefore that would lead to the circumstance of conflicting decree in the event the appeal is allowed by setting aside the decree against the respondents.

The appeal was dismissed as against Respondent Nos. 11 and 18 who are none other than Plaintiff Nos. 6 and 13. Therefore, hearing and disposal of the First Appeal, if results in setting aside the impugned judgment and decree, then, it would lead to a conflicting decree.

Under the given circumstances, even if a liberal construction is made to the delay caused in substituting the legal representatives of Respondent No. 20 (vide the Misc. Case Nos. 771, 772 and 773 of 1988) and legal representatives of Respondent Nos. 12, 14 and 33 (vide Misc. Case Nos. 366, 367 and 368 of 2000) then also the appeal is not maintainable because of the aforesaid order of dismissal passed against Respondent Nos. 11 and 18 and expunging the name of the Respondent No. 21 at the instance and risk of the appellants. Thus, the First Appeal is dismissed being not maintainable on the aforesaid ground. Hearing-fee is assessed at contested scale. Parties are directed to bear their respective costs of litigation in this forum.