Lakhi and Others vs Sham Lal

J.M. Tandon, J.—This order will dispose of Civil Miscellaneous Nos. 1044-C, 1886-C and 1887-C of 1980.

Sham Lal lespondent in R.S.A No. 749 of 1965 filed a suit (No. 79 of 1963) for possession of land measuring 37 Kanals 2 Marias situate in Village Sondhad, Tehsil Palwal against Lakhi, Sri Chand, sons of Dharma, Tulsi Ajri and Badam sons of Girraj, and the same was dismissed by the Subordinate Judge, Palwal, vide order dated March 23, 1954. Sham Lal filed an appeal against the order of the Subordinate Judge and the same was accepted and he was granted a decree for possession of that land by the Senior Subordinate Judae, Gurgaon, vide order dated May 3, 1965. Lakhi, etc., being aggrieved by the judgment and decree of the Senior Subordinate Judge, Gurgaon, preferred R.S.A. No. 749 of 1965. The appeal was accepted on November 16, 1972, and the decree of Senior Subordinate Judge set aside and the case was remanded under Order 41, Rule 23A, Civil Procedure Code, to the trial Court for deciding issue No. 2 and additional issue No. 2 afresh. During the pendency of the case before the trial Court, Sham Lal having learnt that Ajri appellant in R.S.A. No. 749 of 1965 had died on March 27, 1970 and his legal representatives had not been impleaded, applied that the proceedings could not continue was R.S.A. No. 749 of l965 had abated as a consequence thereof The trial Court did not accept the prayer made by Sham Lal, and opined that the appropriate course for him to follow was to approach the High Court for relief It is under these circumstances that Sham Lal has filed C.M. No. 1044-C of 1980 praying that in view of the fact that Ajri appellant had died on March 27, 1970, and his legal representatives had not been impleaded, R.S.A. No. 749 of 1965 may be dismissed having abated after recalling the order November 16, 1972, already passed.

Lakhi, etc., appellant having admitted that Ajri appellant had died on March 27, 1970 during the pendency of R.S.A. No. 749 of 1965, have improved Civil Miscellaneous No. 1997-C of 1980 praying that the legal representatives of Ajri deceased may be allowed to be impleaded as parties. They have also moved another Civil Miscellaneous No. 1886-C of 1980 praying that delay in filing C.M. No. 1887-C 1960 by condoned.

The admitted facts are that Sham Lal obtained a decree for possession of 37 Kanals 2 Marias of land against lakhi, Sri Chand, Tulsi, Ajri and Badam from the Court of Senior Subordinate Judge, Gurgaon, vide order dated May 3, 1965. All the five judgment debtors preferred R.S.A. No. 749 of 1965, which was disposed of vide order dated November 16, 1972. During the pendency of the Regular Second Appeal, Ajri died on March 27, 1970, and his legal representatives were not impleaded as parties till its disposal. The learned counsel for Sham Lal has argued that R.S.A. No. 749 of 1965 shall stand abated for not impleading the legal representatives of Ajri.

Order 22, Rule 3, Civil Procedure Code, reads:-

Procedure in case of death of one of several plaintiffs or of sole plaintiff-

(1) Where one of two or more plaintiffs dies and the right to sue docs 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.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so fat 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 disputed that after the death of Ajri on March 27, 1970, no application was made to implead his legal representatives as parties within the prescribed period. In this situation, R.S.A. No. 749 of 1965 was liable to be dismissed having abated. The learned counsel for Lakhi, etc. has argued that in view of the fact that Sham Lal did not apply for getting the regular second appeal dismissed having abated before it was decided he shall be taken to have waived his objection. Reliance has been placed on N. Jayaram Reddy and Another Vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, . In my opinion the contention of the learned counsel for Lakhi, etc. is without substance. The facts of N. Jayaram Reddi''s case (supra) are completely different from facts of the case now under consideration. The rule laid therein has, therefore, no application in the instant case In Om Sarup v. Gur Narain and others (1965) 67 P.L.R. 634, it was held that rules 3 and 4 of Order 22 of the CPC are mandatory and the Court cannot ignore the automatic abatement merely because an objection to this effect has not been raised by the party affected on an earlier occasion. It was further held that where the respondent dies and no application is made for causing his legal representatives to be brought on the record within the time limited, the appeal abates automatically and their is no question of any period for raising any objection to such abatement. The ratio of this authority is applicable to the case now under consideration.

The learned counsel for Lakhi, etc., has argued that Regular Second Appeal shall not abate in view of the provisions contained in Order 41, Rules 4 and 33, Civil Procedure Code. Reliance has been placed on Mahabir Prasad v. Jage Ram and others AIR 1971 S.C. 741. This contention is also without merit. Order 4), Rules 4 and 33 read as under:-

R. 4 One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.

Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

R. 33 Power of Court of Appeals.

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees;

Provided that the Appellate Court shall not make any order u/s 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

In Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, , it was held that the principle behind the provisions of rule 4 of Order 41. Civil Procedure Code, seen s to be that any one of the plaintiffs or defendants, in filing an appeal as contemplated by the rule, represents all the other non appealing plaintiffs on defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant. It was further held that the provisions of Order 41, Rule 4 do not override the provisions of Order 22, Rule 9, Civil Procedure Code. Such a question cannot arise. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of Order 41 applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the appellants the provisions of Order 41, Rule 4 became unavailable. Order 22 operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of Rule 9 of Order 22 and those of rule 4 of Order 41, Civil Procedure Code. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.

In Mahabir Prasad v. Jage Ram and others AIR 1971 S.C. 741, the impugned order had been passed against Mahabir Prasad his mother Gunwanti Devi and his wife Saroj Devi. Mahabir Prasad alone appealed against that order and impleaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died during the pendency of the appeal and on the application of Mahabit Prasad, her name was struck off from the array of respondents. The High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi had not been brought on the record within the period of mimitation, the appeal abated in its entirety. The Supreme Court reversed the decision of the High Court and distinguished Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, . It was held that in Mahibir Prasad v. Jage Ram and others AIR 1971 S.C. 741, Mahabir Prasad alone had filed an appeal in representative capacity as well, whereas it was not the case in Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, , with the result that the rule laid down in Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, , could not be made applicable to an appeal filed in a representative capacity under Order 41, Rule 4, Civil Procedure Code, in the absence of legal representatives of a deceased respondent on whose behalf the appeal had been filed. In the instant case, Lakhi, Sri Chand, Tulsi and Badam had not filed E.S.A. No. 749 of 1965 on behalf of Ajri as well. Ajri was himself an appellant. Lakhi, etc., therefore, cannot take advantage of the rule laid down in Mahabir Prasad v. Jage Ram and others AIR 1971 S.C. 741. The present case shall be clearly governed by the rule laid down in Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, and Lakhi, etc., cannot avoid abatement on appeal on appeal on the basis of the provisions contained in Order 41, Rule 4, Civil Procedure Code.

Another point argued by the learned counsel for Lakhi, etc. is that the appeal may abate only to the extent of the share of Ajri deceased and not in entirety. Reliance has been placed on Harichand and Others Vs. Bachan Kaur and Others, . This contention is also without merit. It was held in Harichand and Others Vs. Bachan Kaur and Others, that by the death of some of dfendants-tres passers during the pendency of plaintiff-true owner''s appeal and non-substitution of their legal representatives no abatement will result since such a decree, is in effect distinct in respect of each trespasser. This finding is hardly relevant to the facts of present. case. Sham Lal obtained a decree for possion against all the five appellants, including Airi deceased with respect to 37 Kanals 2 Marlas of land. This decree is joint and indivisible. The share of Ajri deceased in the land is neither defined nor is capable of being separated in forms of decree passed in favour of Sham Lal. Under these circumstances it is obvious that the (sic) liable to abate in entirely.

Lakhi, etc. have filed C.M. No. 1887-C of 1980 under Order 22, Rules 9 and 33, Civil Procedure Code, praying that the abatement of the appeal be set aside and the legal representatives of Ajri deceased allowed to the impleaded as parties. Ajri had died in 1970 whereas C.M. No. 1887-C of 1980 has been filed in 1980. Lakhi, etc., have therefore, filed C.M. No. 1886-C of 1980 praying for condonation of delay in filing C.M. No. 1887-C of 1080 The plea taken by Lakhi, etc., is that they had been advised (wrongly) for not moving an application for impleading the legal representatives of Ajri deceased within limitation. It is a vague and weak ground to be upheld for condoning the delay of more than 10 years. It is significant that Sham Lal had applied to the trial Court in 1973 that the proceedings cannot continue because R.S.A. No. 749 of 1965 had abated on account of the death of Ajri. The trial Court did not proceed with the case and consigned the file to the record room. Lakhi, etc., still remained silent and did not move an application for impleading the legal representatives of Ajri till 1980. I, therefore, find no justification whatsoever to condone the extraordinary long delay and consequently dismiss C.M. No. 1886-C of 1980, C.M. No. 1887-C of 1980 is also dismissed being time barred.

In view of discussion above, I accept C.M. No. 1044-C of 1980 and recall the order dated November 16, 1972, passed in R.S.A. No. 749 of 1965 and the same is dismissed having abated. No order as to costs.