Malla Venkataswamy Mandadi and Another vs Sreepuram Munemma

N.Y. Hanumanthappa, J.—This is a second appeal by Defendants 3 and 4 in O.S.No. 493/74 on the file of the District Munsif, Srikalahasti. The suit Was filed for declaration and permanent injunction in respect of Ac. 5-00 of land, more specifically described in the schedule. The Plaintiff''s case before the trial court, was that she purchased the land for valuable consideration. By the side of the scheduled property, defendants 1 to 4 also pruchased Ac. 20-00 of land at the rate of Ac.5-00 each. Though they have no right or title in the land purchased by the Plaintiff, they were attempting to interfere with the same. Defendants denied the claim of the plaintiff. Evidence let in and the suit was dismissed, against which an appeal in A.S.No. 101/85 was preferred by the plaintiff before the Subordinate Judge, Srikalahasthi.

During the pendency of appeal, defendants 1 and 2 passed away. No application under Order 22, Rule 4 was filed to bring their Legal representatives on record. Lower appellate court heard the plaintiff and the remaining defendants and passed the judgment, allowing the appeal.

Now it is contended by Sri. P.S. Narayana, learned counsel for the Defendants 3 and 4 that when the appeal was pending before the lower appellate court, Defendants 1 and 2 passed away and their legal representatives were not brought on record and because of failure to bring the legal representatives on record, entire appeal stands abated. To support his contention, he placed reliance on Babu Sukhram Singh Vs. Ram Dular Singh and Others, . Narayan Bhat v. Narasimha Sastry 1988(1) SCC 726. and Bibijan and Others Vs. Murlidhar and Others, ..

In Babu Sukhram Singh Vs. Ram Dular Singh and Others, , while dealing with Order 22, Rule 4, C.P.C., the Supreme Court held as follows :-

Where a joint claim against several defendants is made in a suit and during pendency of appeal by the plaintiff some of the defendants die and no separate claim is made against any of the defendants in appeal, the failure of the plaintiff to bring on record their legal representatives results in abatement of appeal in to.

In Narayan Bhat v. Namsiah Sastry (2 supra) the Karnataka High Court, while dealing with similar provision of law, held that, -

In a suit filed for prohibitory and mandatory injuction against two defendants, entire suit abates oh the death of any of the defendants during the pendency of the suit, when his legal representatives are not brought on record in time.

In Bibijan v. Murlidhnr(3 supra), the Supreme Court held that when some of the appellants died during the pendency of an appeal that has arisen out of a suit for redemption of usufructuary mortgage, and no legal representatives were brought on record within time, the entire appeal stands abated:

(Whereas) Sri. M.S.R. Subrahmanyam, learned counsel for the plaintiff submitted that no objection was raised when the appeal before the court below was pending, that for failure to make an application under Order 22, Rule 4) C.P.C the appeal stands abated. As such it is not open now to contend that the order of the lower appellate court is a nullity because of failure to bring the legal representatives of the deceased defendants on record and tine entire suit stands abated. According to him, at best it may be stated that appeal against only those defendants whose legal representatives were not brought on record, be held as abated. According to him in cases of acts of trespass, each defendant''s act is quite different and separate. Principles laid down in the authorities, which Sri P.S. Narayana relied upon, cannot be made applicable to the facts of the instant case and on the other hand the principles laid down in the following authorities,- The State of Punjab Vs. Nathu Ram, . K.H. Talwar v. Ramappa AIR 1974 Kar. 20. and Chaya and Others Vs. Bapusaheb and Others, . are applicable to the facts of the case.

In The State of Punjab Vs. Nathu Ram, the Supreme Court, while dealing with Order 22, Rule 4, C.P.C, held as follows :-

When Order 22, Rule 4, C.P.C. does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. The only question is whether the appeal can proceed against them. The provisions of Order l, Rule 9, C.P.C, also show that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.

In K.H. Talwar v. Ramappa AIR 1974 Kar. 20, the Karnatka High Court dealing with similar provision of law, held as follows :-

Where each of the four appellants has been clearly imputed with an act of trespass distinct and separate from each other, in respect of a portion adjoining their respective separate premises, their acts donot constitute a joint trespass and therefore failure to bring on record the legal representatives of deceased appellant will not render the appeal as a whole to abate but abates in regard to deceased appellant alone.

In Chaya v. Bapusaheb (6 supra), the Supreme Court, while dealing with Order 22 Rule 4 C.P.C. held that in a case where one of several defendants, having interest in different parts of suit property, dies during the pendency of first appeal and his legal heirs are not brought on record, in the absence of plaintiff taking the plea of abatement of appeal, the disposal of appeal on meritis not bad and taking such a plea of abatement at the stage of second appeal barred.

The whole controversy would have come to an end if this position was canvassed before the lower appellate Court and the lower appellate court would have gone into this aspect with reference to evidence available and passed a just order. Here also the particulars about the dates of death of Defendants 1 and 2 and who are their legal heirs are not available. It is proper if this matter is investigated and a final decision is rendered.

Accordingly, this appeal is allowed, judgment and decree of the lower appellate court in A.S.No. 101/85 set aside and the matter is remitted to the lower appellate Court with a direction to the learned Subordinate Judge, Srikalahasthi to rehear both the parties, on all the contentions, including hearing on the legal representatives'' petition, if any filed, together with an application to condone tine delay and also to set aside the abatement, if filed, after affording opportunity of filing objections and to pass an appropriate order. In case any request to bring any one of the parties on record is made, the lower appellate court shall look into the nature of such a request set up with reference to the evidence already adduced and bearing in mind the principles laid down by the Supreme Court and other High Courts, referred to above. The appeal shall be disposed of by the end of December, 1995. Office to transmit a copy of this order and the lower court record, to the first appellate court, forthwith without any delay.

Both the parties shall appear before the learned Subordinate Judge, Sri kalahasthi on 1-9-1995 at 10-30 a.m. No costs.