Sangappa vs Nagamma (Deceased) by L.Rs

Heard Sri K. Appa Rao, learned Counsel for the revision petitioner, and Sri N.S. Prasad, learned Counsel for the respondents.

This revision under Section 115 of the CPC arises from the judgment and order of the Trial Court namely Civil Judge (Junior Division), Bijapur, whereby the Trial Court had rejected I.A. No. VII filed by the revision petitioner in O.S. No. 129 of 1989. The defendant 1/revision petitioner made this application to the effect that the defendant 2 having died on 18-1-1995 and no heirs of legal representatives of the deceased defendant 2 having been brought on record, the case against him stands abated and therefore, the suit should be dismissed as having abated in entirety. The Trial Court dismissed that application taking the view that firstly, the defendant 1 had not filed any written statement denying or admitting the claim of the plaintiff. It mentions that though years passed since the filing of the suit, but the defendant avoided the filing of written statement and did not disclose his defence in respect of allegations made in the plaint. It further opined that the suit was only against the defendant-revision petitioner for decree for injunction and possession with respect to the land in dispute and it is the defendant 2 who herself got impleaded in the suit and the plaintiff had not impleaded her as a party originally. The Trial Court opined that the defendant 1 is already on record and if it is proved that he is the adopted son of husband of defendant 2, there will be no question of abatement. The Trial Court opined that the entire suit cannot be dismissed in view of abatement of the suit against the defendant 2 and rejected the application. Feeling aggrieved from this order, the defendant 1 has come up in revision.

The learned Counsel for the revision petitioner contended that the defendant 2 in her written statement had asserted that the defendant 1 i.e., the present revision petitioner is not the adopted son of her husband and the learned Counsel contended that the defendant 2 denied that the defendant 1 is the adopted son of the husband of defendant 2. The Trial Court wrongly held that if the defendant 1 proves the adoption, he can continue in the suit. The learned Counsel contended that as no legal heir of defendant 2 had been brought on record, the suit rightly abated against the defendant 2 and it ought to have been dismissed as having abated in entirety. The learned Counsel for the revision petitioner made a reference in this connection to the decision of their Lordships of the Supreme Court in the case of Babu Sukhram Singh v Ram Dular Singh and Others, AIR 1973 SC 204 and to the Single Judge''s decision in the case of Narayan Bhat v Narasimha Sastry, ILR 1988 Kar. 549. The learned Counsel also made reference to a Division Bench decision in the case of T. Raju Setty v Bank of Baroda, AIR 1992 Kant. 108.

These contentions of the learned Counsel for the revision petitioner have been hotly contested on behalf of the respondents.

Before proceeding further, it will be appropriate to refer to certain provisions of Order 22 itself.

Order 22, Rule 1 reads as under:

"Order 22, Rule 1.-No abatement by party''s death if right to sue survives.-The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives".

Rule 4 of Order 22 reads as under:

"Order 22, Rule 4.-Procedure in case of death of one of several defendants or of sole defendant.-(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendants to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time-limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant".

For the present purpose, sub-rules (4) and (5) of Rule 4 are not very material. Rule 5 of Order 22 reads as under:

"Order 22, Rule 5.-Determination of question as to legal representative.-Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question".

A reading of these rules per se reveals that the death of a party, be it is a plaintiff or defendant, shall not cause the abatement of the entire suit if right to sue survives. It further appears from a perusal of Rule 4 also that on account of death of one of the several plaintiffs Or of one of the defendants, if the right to sue survives with the plaintiff or surviving plaintiffs against the defendant or surviving defendants, then suit shall abate only against the deceased defendant and shall not abate as a whole. The provision directly by itself does not provide anything as the abatement of the suit as a whole. It provides that if right to sue survives, then suit may continue and it may abate if no application is made for bringing on record the legal representatives of the deceased plaintiff or defendant against the deceased person only and with reference to others whether the suit can proceed and whether cause of action subsists not, the Court has to look and consider and decide the question whether there is a possibility of two conflicting decrees being passed on the success of the suit or appeal etc., and if there is possibility of two contradictory decrees being passed, then the law appears to be, the rest of the suit has to be dismissed not to be said that it abates, but dismissed for want of necessary parties. When I so observe, I find support for my view from the decision of their Lordships of the Supreme Court in the case of State of Punjab v Nathu Ram, AIR 1962 SC 89. It will be proper to quote the following observations of their Lordships of the Supreme Court in the above case.- "(4) It is not disputed that in view of Order 22, Rule 4, Civil Procedure Code (hereinafter called ''the Code''), the appeal abated against Labhu Ram deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22, Rule 4 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. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.

(5) The same conclusion is to be drawn from the provisions of Order 1, Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, 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.

(6) The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court''s coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court''s passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court; and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.

(7) There has been no divergence between the Courts about the Court''s proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellant and the other or on the execution of the ultimate decree between them.

(8) The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal, against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the Appellate Court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the Appellate Court cannot determine anything between the appellant and the legal representative which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.

(9) It is therefore necessary to determine, on the facts of this case, whether the State appeal could proceed against Nathu Ram. The award of the Arbitrator in each of these cases was a joint one, in favour of both the respondents Labhu Ram and Nathu Ram. To illustrate the form of the award, we may quote the award for the year 1945-46 in the proceedings leading to Civil Appeal No. 635 of 1957. It is:

''On the basis of the report of S. Lal Singh, Naib Tehsildar (Exhibit P.W. 9/1) and Sheikh Aziz Din, Tehsildar, Exhibit P.W. 9/2, the applicants are entitled to a sum of Rs. 4,140 on account of rent, plus Rs. 3,872/8/0 on account of Income-tax etc., due to the inclusion of Rs. 6,193/8/0 in their total income, plus such sum as the petitioners have to pay to the Income-tax Department on account of the inclusion of Rs. 4,140/- in their income as awarded by this award''.

The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Ram''s share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the Arbitrator. The subject-matter for which the compensation is to be calculated is one and the same. There cannot be different assessment of the amounts of compensation for the same parcel of the land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree-holders in the appeal. In the absence of joint decree-holders, the appeal is not properly framed. It follows that the State appeal against Nathu Ram alone cannot proceed".

A perusal of this case clearly reveals that if there is a joint interest of the parties and if allowing of the appeal or decreeing of the suit would have a result of providing conflicting decrees in the sense that on one hand the suit or appeal stand dismissed against the deceased defendant or respondent or with reference to deceased plaintiff or appellant and on the other hand, if on merits the appeal is allowed and the suit is decreed or appeal is allowed and the decree, in which question of title is decided in favour of the remaining parties, then in that case, the law is that suit or appeal cannot proceed. But if there is no joint cause of action and if the interest is not joint and there is no possibility of two conflicting decrees coming into existence, the Court can proceed with the suit and decide on merits. Here in this case, the defendant 1 has not set up his case at all as to whether he is claiming his possession over the land or the property through Shivraya Biradar whose wife defendant 2 has been. It is not clear whether the defendant 1 is claiming that right as adopted son of Shivraya Biradar and his possession over that property is opposed. Till that is clear, it cannot be said that there is a possibility of two conflicting decrees. Apart from that, the perusal of the plaint and the plaintiff''s case reveals that the plaintiff has filed a suit for decree for possession against the defendant/revision petitioner as a sole defendant. The plaintiff in the plaint has alleged the cause of action in following words.-

"(3) In pursuance of the registered sale deed as mentioned above, the plaintiff was in possession of the suit land since then upto the date of destruction of standing crop on 15-11-1986, by the defendant and thereafter sowing therein wheat crop by him dispossessing the plaintiff from the suit land. In order to facilitate the defendant to sow the wheat crop in the suit land, the Village Accountant-relative of the defendant had tamperred with the record of rights by deleting the name of the plaintiff and by entering the name of the defendant in her place in the column of cultivation in order to prevent her from approaching the police or other Competent Authorities for protection of her possession over the suit land. The destruction of standing crop was caused and re-sowing was undertaken with the help of the Goonda elements in and around of the village collecting as many as 17 persons for the purpose at the behest of the defendant. The matter was reported to the Police but the Police has failed to take penal action against the defendant and his supporters for the offences of mischief and criminal tresspass etc., but instead had filed a report under Section 107 of the Cr. P.C. before the Executive Magistrate Chittapur, because of the influence and affluence of the defendant which is pending".

(4) The plaintiff had sustained loss of standing crop of Jawar, Gram and other Rabi crops sown and grown by the plaintiff with the assistance of her son-in-law by name Sangappa Kadli of the same village to the tune of Rs. 8,000.00 according to the rough estimates for the year 1986-87. After deducting expenses, the plaintiff could have got net income of Rs. 4,000.00 out of the standing crops destroyed intentionally by the defendant on 15-11-1986. The defendant had no rights whatsoever to trespass into the land owned and possessed by the plaintiff with criminal intention to destroy the standing crops and thereafter to resow the land by himself by dispossessing by force the plaintiff from the suit land.

(5).............................................

(6) Since the dispossession of the plaintiff from the suit land on 15-11-1986, the defendant has been in possession and enjoyment of the suit land illegally for which he is liable to pay mesne profits at the rate of Rs. 6,000-00 per year to the plaintiff for the years 1987-88 onwards till the disposal of the suit and for the destruction of the standing crops and thereby making the plaintiff to sustain the net loss of Rs. 4,000-00 the plaintiff is entitled to claim damages for Rs. 4,000.00. In respect of alterations made in the ROR, the plaintiff is entitled to cancel the alterations illegally made by the Village Accountant so as to get her name entered in Column 12, of the ROR, for the years 1983-84 to 1985-86, as mentioned in paras supra. Thus these are the facts which constitute the cause of action for institution of the suit for reliefs of declaration of her ownership denied by the defendant at the time of destruction of standing crops in the suit land and at the time of pendency of the appeal before the Assistant Commissioner at sedam, for possession because she was dispossessed from the land on 15-11-1986, and for rectification of ROR, because they were altered illegally to suit the interests of the defendant in November 1986, as mentioned in paras supra.

(7) The cause of action arose for the suit in November 1986, when illegal alterations were made in the ROR, in Column 12, pertaining to the suit land and on 15-11-1986, when the standing crops were destroyed and therein the defendant had resowed and thereby dispossessing the plaintiff from the suit land and on 11-2-1987, when the defendant had denied the ownership of the plaintiff by submitting an affidavit in File No. REV/APL/39/86-87, before the Assistant Commissioner, Sedam, in the appeal preferred by the plaintiff, as mentioned above".

A perusal of these paragraphs clearly reveals that the plaintiff has filed the suit alleging the cause of action against the defendant/revision petitioner, alleging that he has committed trespass on the land belonging to the plaintiff and he has trespassed, and interfered with the possession and enjoyment of the land belonging to the plaintiff. So, the plaintiff claimed to be the owner of the property and claimed for decree of possession against the defendant 1 only. The relief clause also does not show that any relief was claimed against the defendant 2. The defendant 2 only has been impleaded as a formal party as she was also one of the heirs of Shivraya Biradar. No relief having been claimed and no cause of action having been alleged against Gujjamma, widow of Shivraya Biradar and entire cause of action having been alleged against the defendant/revision petitioner, in my opinion, the entire suit cannot be dismissed as having abated. The relief and cause of action had been claimed only against defendant 1 and entire cause of action was against defendant 1, who was only defendant impleaded when the original plaint was filed.

In this view of the matter, in my opinion, the cases referred by the learned Counsel for the revision petitioner cannot be applied and cannot be of any help. In the Supreme Court''s decision in the case of Babu Sukhram Singh, relied by the learned Counsel for the revision petitioner, as appears from the perusal of the report, particularly in paragraph 1, that, the decree in that case was claimed against all the defendants in the suit and cause of action was alleged to be joint and therefore, the Court observed that no separate claim was made against any of the defendants. In such circumstances, the Court dismissed the appeal against all. But, no doubt, Order 22, Rule 4 does not provide for abatement against all.

In the other case namely Division Bench''s decision in the case of T. Raju Setty, the creditor proceeded against the principal debtor and sureties jointly and severally and the suit abates against the principal debtor, the suit against the sureties could not be decreed and their Lordships observed that if suit could be decreed against sureties there would have been two conflicting decrees and therefore, dismissed the entire suit on its abatement against the principal debtor. Here, the suit had not been filed against Gujjamma. No relief appears to have been claimed against Gujjamma. No cause of action appears to have been alleged against Gujjamma.

Again in the case of Narayana Bhat, the decision has been given on the basis of the fact that there was a joint claim against all and no separate claim against any of the defendants, so whole appeal had to be dismissed.

Therefore, these decisions are not of any assistance to the learned Counsel for the revision petitioner.

In view of the above, in my opinion, the Trial Court did not commit any error of law or fact nor any jurisdictional error within the framework of Section 115 by rejecting the application and by holding that cause being against the defendant surviving, as it originally stood when the suit was filed, and in holding that suit could not be dismissed as such. There being no jurisdictional error, revision appears to be misconceived and it is hereby dismissed.