Pyarchand and Others vs Nanda and Others

Dr. Vineet Kothari, J.—The present second appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants-defendants against the judgment and decree dated 17.05.1994 passed by the learned Additional District Judge No. 2, Chittorgarh in Civil Appeal No. 73/1993 "Pyarchand & Ors. Vs. Nanda & Anr." by which, he affirmed the judgment and decree dated 17.08.1985 passed by the learned Munsif & Judicial Magistrate, First Class, Begun in Civil Original Suit No. 9/1980 "Nanda & Anr. Vs. Nana & Anr." in a suit for permanent injunction which was decreed by the learned Trial Court in favour of the plaintiffs.

The legal representatives of the deceased defendant-Roda S/o. Bhuwanaji Suthar, who was defendant No. 2 in the suit filed by the plaintiffs-respondents, and who was the real brother of the defendant No. 1-Nana, being sons of Bhuwanaji Suthar, have filed the present second appeal in this Court on 25.08.1994 in which, the following substantial question of law was framed by the co-ordinate Bench of this Court on 14.09.1994 which reads as under:-

"What is the effect of the Roda''s-defendant death on 03.09.84 on the judgment and decree passed by the Courts below."

The suit aforesaid was decreed by the learned Trial Court for injunction directing the defendants-Nana & Roda not to create any obstruction in the 12 feet wide way on which, the plaintiffs claimed easementary rights of way for approaching their agricultural fields and the suit came to be decreed on 17.08.1985 with the following findings returned in favour of the plaintiffs by the learned Trial Court which read as under:-

The first appeal filed by the defendants-Nana and legal representatives of the deceased Roda, his brother, namely - Pyarchand & Ors. which came to be dismissed by the learned First Appellate Court of Additional District Judge No. 2, Chittorgarh on 17.05.1994, namely, Civil Appeal No. 73/1993 "Nana Lal & Ors. Vs. Nanda & Anr." with the following observations:-

The learned counsel, Mr. N.K. Rastogi, appearing for the appellants-defendants relying upon the judgments of the Hon''ble Supreme Court in the cases of Jangli & Anr. Vs. Deputy Director of Consolidation & Ors. reported in (1982) 1 SCC 478 , Gopal Lal Vs. Smt. Amba Bai and Others, and of the Hon''ble Kerala High Court in the case of Uma Andarjanam and Others Vs. Neelakandan Namboodiri and Others, and of this Court in the case of Udai Ram Vs. Dharam Chand, submitted that in view of the death of one of the defendant, namely Roda on 03.09.1984, the decree passed by the learned Trial Court on 17.08.1985 was a nullity, as the same had been passed against a dead person and, therefore, the same deserves to be set aside. The learned counsel also submitted that the learned First Appellate Court has erred in rejecting the appeal of the defendants-appellants by the impugned order dated 17.05.1994 and, therefore, the substantial question of law framed by the coordinate Bench of this Court on 14.09.1994 deserves to be answered in favour of the appellants-defendants and this second appeal deserves to be allowed accordingly.

On the other hand, the learned counsel, Mr. Rameshwar Chauhan, appearing for the respondents-plaintiffs relying upon the decision of the Hon''ble Bombay High Court in the case of Kosarichand Motichand Shah Vs. Fakirbhai Kariabhai Koli and others, and submitted that the Advocate appearing for the defendants never informed the Court about the death of the defendant No. 2-Roda on 03.09.1984, as required under Order 22 Rule 10-A of the Code of Civil Procedure and, therefore, no steps for bringing his legal representatives on record could be taken by the plaintiffs-respondents. The learned counsel further submitted that the judgment, decree and the injunction by the learned Trial Court could not be said to be abated on account of death of one of the defendants, as held by the Hon''ble Bombay High Court in the aforesaid case of Kosarichan Motichand Shah (supra), since the right to sue was still available to the plaintiff against the alive defendants and the defendants cannot be allowed to take advantage of their own failure, as in the present case, the defendants had failed to inform the Court about the death of defendant No. 2-Roda on 03.09.1984 even though they were represented by the Advocate.

The relevant portion of the observations made by the Hon''ble Bombay High Court in the aforesaid judgment in the case of Kosarichand Motichand Shah (supra) is quoted herein below for ready reference:-

"Where a suit for permanent injunction simpliciter restraining the defendants from interfering in plaintiff''s property without any prayer for declaration against the defendants, was filed against several defendants, the suit would be maintainable even on failure of plaintiff to bring legal representative of deceased defendant on record within time since the cause of action against all of the defendants could be said as being the same and the right to relief for the plaintiff was arising out of the same act or transaction or series of acts of transactions which was alleged against them and thus the right to sue would survive in respect of the remaining defendants. Further such suit would also be justified against all the defendants jointly since common questions of facts and also of law would arise if separate suits had been instituted by the plaintiff against them. In such a case, it could be said that on the expiry of one of the defendants, the cause of action against him had ceased and therefore, the question of bringing his legal representatives on record would not arise. Thus, the cause of action against the deceased defendant or defendants as well as against the remaining defendants was their actual interference in the suit property. Therefore, there could be no cause of action against the legal representatives of such defendants who had expired."

I have heard the learned counsels for the parties and upon perusal of the record of the case including the judgments cited at the bar, this Court is satisfied that there is no error in the impugned order passed by the learned First Appellate Court rejecting the contention of the appellants-defendants that the decree became a nullity, because it was passed against a dead person, one of the defendants namely, Roda, who expired on 03.09.1984. This Court is of the opinion that the duty was cast upon the defendants under Order 22 Rule 10-A of the Code of Civil Procedure to inform the Court about the death of the defendant and, therefore, the plaintiff cannot be saddled with their responsibility alone. It is only after that the information regarding death of the defendant is given to the Court, the appellant, after getting the aforesaid information, could take steps for bringing the legal representatives of the deceased defendant and if in ignorance of the fact of death of one of the defendants, a decree is passed by the learned Trial Court, the same cannot be termed as a nullity per se. The Hon''ble Bombay High Court has taken a view that such injunction against one or more defendants, including a dead defendant, cannot become a nullity merely because of the reason that his legal representatives were not brought on record at a later stage.

The judgments relied upon by the learned counsel Mr. N.K. Rastogi appearing for the appellants-defendants were on the different set of facts and the facts, as obtaining in the present case were not available before the Courts dealing with the issue before them.

In the Case of Jangli & Anr. (supra), the Hon''ble Supreme Court by a very short order, set aside the judgment of the High Court and the order of the Deputy Director of Consolidation and remanded the matter to the Deputy Director of Consolidation after noticing the fact that at the time of passing of the decree on 11th September, 1950, one of the party, Ganesh had expired and there was nothing to show that the legal heirs were brought on record before the decree was passed. Here, in the present case, the learned First Appellate Court has recorded the finding to the effect that the factum of death of the defendant No. 2-Roda on 03.09.1984 was not brought before the learned Trial Court at the relevant point of time when the suit was at the stage between the conclusion of hearing and pronouncement of judgment and ultimately, the judgment was passed on 17.08.1985 and, therefore, as per the provisions of Order 22 Rule 6 of the Code of Civil Procedure, the decree in the present case cannot be said to be a nullity. The relevant portion of the Order 22 Rule 6 of the Code of Civil Procedure is quoted herein below for ready reference:-

"6. No abatement by reason of death after hearing:- Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of hearing and the pronouncement of judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as it it had been pronounced before the death took place."

Similarly, the other judgments relied upon by the learned counsel Mr. N.K. Rastogi appearing for the appellants-defendants like in the case of Gopal Lal (supra), the matter pertains to the death of the sole appellant during the course of the appeal and, therefore, the appeal was held to be abated. Such are not the facts in the present case, therefore, the judgment cannot be said to be applicable.

In the case of Udai Ram (supra), a learned Single Judge of this Court held that the appellate court cannot itself set aside the abatement nor it can affirm the decree when the same was passed by the learned Trial Court in ignorance of the death of one of the respondent during the pendency of the pendency of the suit. This Court is of the opinion that this judgment is also of little help to the learned counsel for the appellants-defendants.

In view of the discussion made herein above, this Court is satisfied that the decree for injunction passed by the learned Trial Court cannot be said to be a nullity and the same could not have been set aside on the ground that the legal representatives of one of the deceased defendant were not brought on record in the suit and the same were brought on record only in the first appeal. The present second appeal is liable to be dismissed and the substantial question of law framed in the present second appeal is, therefore, liable to be answered in favour of the respondents-plaintiffs.

Accordingly and in view of the above, the present second appeal filed by the appellants-defendants-Pyar Chand S/o. Roda & Ors. stands dismissed. The substantial question of law framed in the present second appeal is answered in favour of the respondents-plaintiffs. No costs. A copy of this order be sent to the Courts below and to the parties concerned forthwith.