Members of Yevakapadi Branch of Areyada Family and Another vs Members of Napoklu Branch of Areyada Family and Others

This appeal under Section 96 of the Code of Civil Procedure is filed by the defendants in a suit for declaration and perpetual injunction, which came to be decreed by the Trial Court.

During the pendency of this appeal, one amongst four respondents viz., second respondent who was the second plaintiff in the suit having died, the matter had been listed for further order before the Court for the purpose of taking steps by the appellant.

While no steps were taken by the appellants, learned Counsel appearing for the appellants submitted that the appellants are not inclined to take steps to bring on record the legal representatives of second respondent and the appellants may be permitted to continue the proceedings against the surviving respondents-plaintiffs.

Learned Counsel appearing for the respondents raised a preliminary objection as to the continued tenability of the appeal contending that as steps have not been taken in respect of one of the respondents, the cause of action does not survive as against the remaining respondents unless the legal heirs of the deceased respondent also are brought on record. In the circumstances, it is submitted that on the failure to bring the legal representatives of the second respondent on record, the entire appeal abates and therefore, the appeal has to be dismissed.

On this question, arguments were heard at length addressed by Sri G.S. Bajaj, learned Counsel appearing for the appellants and Sri Shankarappa, learned Counsel appearing for the remaining respondents.

Submission of Sri Bajaj, learned Counsel appearing for the appellants is that the suit had been instituted in a representative capacity and the four plaintiffs in the suit were on record in a representative capacity and the suit having been decreed, the benefits of decree enures to the benefit of entire class of persons/community who have been represented and it is open to any member of the group to defend such a decree and in this view of the matter, death of one of the persons who has represented the community in the suit cannot bring the suit to an end and non-impleading or otherwise of legal representatives of one such plaintiff would not make any difference to the continuation of the suit and if the same logic is extended, in the appeal the remaining respondents who were the plaintiffs are able to defend the impugned judgment and decree and therefore, the appeal can continue. In support of this argument, he has relied on the decisions in Shiva Ram and Others v Bhagat Ram and Others, AIR 1979 HP 12; Kanhaiyalal v Balram and Others, AIR 1954 Nagpur 274 and Mahabir Prasad v Jage Ram and Others, AIR 1971 SC 742.

On the other hand, Sri Shankarappa, learned Counsel appearing for the remaining respondents has vehemently urged that the cause of action could have survived only with all the respondents on record and it does not survive with the remaining respondents alone and unless the legal representatives of second respondent are brought on record, the cause of action will not survive and therefore, appeal abates. He placed reliance on the decisions in Reshmabai and Others v Sona Puna Patil and Another, AIR 1974 Bom. 118 and State of Punjab v Nathu Ram, AIR 1962 SC 89.

Apart from the various hues and shades that emerge on an examination of the cited decisions, in the present case, what is significant is that the suit had been instituted in a representative capacity and on seeking leave of the Court to seek relief under Order 1, Rule 8 of the Code of Civil Procedure, 1908, and the parties on record representing the interest of the community or the families, to which they belong to and the relief sought is common to the entire community. So, the judgment and decree in the appeal can be defended by any one representative belonging to the community. Hence, the death of one of the respondents in the appeal cannot make much difference for the purpose of defending the decree in the present appeal. If, even one member of the community can defend the said judgment and decree, the remaining members on record can certainly defend the said judgment and decree and it cannot make any difference for defending the decree by the remaining respondents. (See Charan Singh v Darshan Singh, AIR 1975 SC 371).

It is in this view of the matter, I hold that the appeal does not abate, as the remaining respondents can effectively defend the decree and it is open to the appellants to prosecute the appeal even in the present form. Therefore, the objection regarding maintainability of the appeal, raised by the learned Counsel for the respondents is overruled.

List the appeal for hearing after six weeks.