Sundru and Others vs Naubat Rai and Others

V. P. Gupta, J.—Both C.M.P. (M) No. 14 of 1985 and C.M.P. No. 282 of 1985 as well as R.S.A. No. 19 of 1971 are being disposed of by this judgment.

In R.S.A. No. 19 of 1971, C.M.P. (M) No. 14 of 1985 was filed on 12-3-1985 by the Appellants (Petitioners) under Order 22 Rule 4 and Order 22 Rule 9 read with Section 151 CPC for bringing the legal representatives of Om Parkash (Respondent No. 2) and Smt. Chinti Devi (Respondent No. 3) on record and for setting aside the abatement.

C.M.P. No. 282 of 1985 was also filed on 12-3-1985 by the Appellants (Petitioners) u/s 5 of the Limitation Act praying that the delay in filing the application under Order 22 Rule 4 and Order 22 Rule 9 CPC [C.M.P. (M) No. 14 of 1985] be condoned.

In C.M.P. (M) No. 14 of 1985 it is alleged that Om Parkash (Respondent No. 2) died on 9-7-1980 while Smt. Chinti Devi (Respondent No. 3) died on 12-1-1976 during the pendency of the appeal (R.S.A. No. 19 of 1971) in this Court. Respondent No. 2 is survived by two minor daughters and a minor son and after the death of Respondent No. 2 the right to sue survives to the aforesaid three legal representatives.

Respondent No. 3 is survived by a son and three daughters and the right to sue after the death of Respondent No. 3 survives to the aforesaid four legal representatives. Out of the four legal representatives Shri Naubat Rai son and a daughter Smt. Pawana are already on record.

It is alleged that Hari Ram predecessor in interest of the Petitioners died on 26-6-1979 and for a period of about four years before his death he was confined to bed and was suffering from pleurisy. He had lost his memory and could not speak. He could not pursue the appeal and inform the counsel about the death of Smt. Chinti (Respondent No. 3). The Petitioners did not know anything about the pendency of the present appeal. The Petitioners came to know about the death of Respondents nos. 2 and 3 in the month of February 1985, when their counsel was informed in the High Court about the same. They were further misled by the impression that the appeal was only against Naubat Rai s/o Smt. Chinti. It is alleged that under Order 22 Rule 10-A CPC it was the duty of the counsel of the Respondents to inform the Court about the death of the Respondents. Taking all the facts and circumstances into consideration the application for setting aside the abatement should be treated within time and be accepted and the legal representatives of Respondent Nos. 2 and 3 be brought on record.

In C.M.P. No. 282 of 1985 similar grounds have been alleged for condoning the delay in filing the application and it is alleged that the delay in filing the application was not due to any negligence on the part of the Petitioners.

Both the applications are contested by the Respondents who allege that the allegations made by the Petitioners are wrong. The Petitioners had knowledge of the death of Respondents nos. 2 and 3 and the application is time barred. The delay in filing the application cannot be condoned.

I have heard the learned Counsel for the parties at length.

Shri Malhotra, the learned Counsel for the Petitioners contends that the legal representatives should be allowed to be brought on record after setting aside the abatement and condoning the delay because there are sufficient grounds to condone the delay. In the alternative he contends that the appeal can proceed in the absence of Respondents nos. 2 and 3 and shall not abate as a whole. His contention is that two of the legal representatives of Respondent No. 3 are already on record and the estate of Respondent No. 3 is duly represented. There cannot be any objection for bringing the other legal representatives of Respondent No. 3 on record.

For Respondent No. 2 it is contended that the suit was originally filed against Mangal Dass (now deceased) and Naubat Rai s/o Mangal Dass. During the pendency of the suit, Mangal Dass died on 10-11-1967 and upon an application by the original Plaintiff Hari Ram (predecessor in interest of the present Petitioners) the legal representatives of Mangal Dass were ordered to be brought on record vide order dated 23-4-1968. The plaint was accordingly amended and Naubat Rai (original Defendant), Om Parkash, Smt. Chinti and Smt. Pawan Kumari were added as legal representatives. Naubat Rai, one of the legal representatives, was already on record as Defendant No. 2.

It is contended that Om Parkash Respondent No. 2 was only a legal representative of Mangal Dass along with other legal representatives and the estate of Mangal Dass is sufficiently represented by the other representatives. Therefore, the legal representatives of Om Parkash should be allowed to be impleaded. He relies upon Shiv Ram and Others Vs. Bhagat Ram and Others, in support of his contentions.

The next contention is that even if the appeal has abated against the deceased Respondents, still it does not abate as a whole and. can proceed against the other Respondents.

Mr. Indar Singh, the learned Counsel appearing for Respondent No. 1 (Naubat Rai) contends that there are no grounds to condone the delay and the application is hopelessly barred by limitation. The Appellants have not acted with due diligence and they know about the death of Respondents nos. 2 and 3 earlier. In any case they had the knowledge of their death in January 1984, when notices were received in the Registry. The matter was again brought to the notice of the Appellant�s counsel on 10-1-1985, but the Appellants did not take effective steps after exercising due diligence within a reasonable time. The High Court was closed from 12-1-1985 to 3-3-1985 and the application for bringing on record the legal representatives of the deceased Respondents could at the latest be filed on 4-3-1985. But it was delayed due to negligence of the Appellants and was filed on 12-3-1985. No plausible explanation has been given by the Appellants for delay in filing the applications.

He has no objection to the legal representatives of Smt. Chinti (Respondent No. 3) being brought on record for the reason that two of the legal representatives are already on record and her estate is sufficiently represented.

He, however, contends that the legal representatives of Respondent No. 2 (Om Parkash) cannot be allowed to be brought on record. Om Parkash was impleaded as a party in the proceedings before the Senior Sub-Judge and a decree for possession was passed against him along with other Defendants. Om Parkash, filed an appeal in the Court of District Judge, Mandi, along with other Defendants and the decree passed against Om Parkash was set aside by the District Judge, Mandi, and the suit was dismissed against as well as against other Defendants. It is contended that the judgment in Shiv Ram and Others Vs. Bhagat Ram and Others, is distinguishable. It is contended that in case the appeal is allowed to proceed then there is every possibility of two contradictory and inconsistent decrees being passed in the appeal and for this reason the appeal should abate as a whole and there are no grounds to allow the Appellants to implead the legal representatives of Om Parkash (deceased Respondent No. 2) against whom the appeal has abated. In support of his contentions he relies upon Hardial Singh and Another Vs. Bagga Singh, , The State of Punjab Vs. Nathu Ram,

I have considered the contentions of the learned Counsel for the parties.

The Plaintiff Hari Ram (predecessor in interest of the present Petitioners/Appellants) filed a suit for possession of 0-1-15 bighas of property (detailed in the plaint) by demolition of the structures against S/Shri Mangal Dass and Naubat Rai Defendants. It was alleged that both the Defendants had taken illegal possession of the disputed property and had made unauthorised construction on the same. The Defendants were treated as trespassers of the suit property.

Both the Defendants contested the suit on merits. They also raised preliminary objections regarding necessary parties, Court fee, jurisdiction etc.

Vide order dated 29-8-1966 it was held that the Court had jurisdiction to try the suit and that custodian evacuee property was not a necessary party. It was, however, held that the Temple Baba Balakrupi was a necessary party. The question of Court fee was left open. In pursuance to this order the plaint was amended and Baba Balakrupi was added as Defendant No. 3, who also filed a written statement contesting the Plaintiff''s title to the suit property.

As many as 14 issues were framed in the suit which have been reproduced in the judgment of the learned Addl. District Judge. The Plaintiffs (Petitioners/Appellants) claimed tenancy rights in the suit land. They claimed the possession of the property on the basis of perpetual tenancy rights. The learned Senior Sub-Judge, Mandi, gave findings that the Plaintiff was a tenant of the disputed land and was in possession of the same within 12 years. He further held that the Defendants had taken illegal possession of this property. He granted a decree for possession of the suit property with costs against the Defendants vide judgment dated 30-5-1970.

An appeal (Civil Appeal No. 32 of 1970) was filed by the Defendants against this judgment and decree dated 30-5-1970 passed by the Senior Sub-Judge, Mandi, and this appeal was accepted by the learned Addl. District Judge, Mandi, vide his judgment dated 20-10-1970. The judgment of the learned Senior Sub-Judge was set aside and the suit of the Plaintiff Hari Ram was dismissed with costs throughout.

The learned Addl. District Judge, Mandi, held that the Plaintiff had no subsisting tenancy rights in the suit land on the date of the institution of the suit and had no locus standi to file the suit.

Hari Ram (Plaintiff) thereafter filed an appeal (R.S.A. No. 19 of 1971) in this Court challenging the judgment and decree of the learned Addl. District Judge, Mandi, dated 20-10-1970.

During the pendency of the appeal, Hari Ram died and his legal representatives, the present Appellants, were brought on record vide order dated 24-10-1979. Om Parkash and Smt. Chinti Respondents nos. 2 and 3 also died during the pendency of this appeal for which a reference has already been made in this order and the present applications are for impleading their legal representatives.

During the pendency of the present appeal, actual date notices were issued to the Respondents for 6-1-1984. In these notices there is a note of the postal authorities of December 1983 that Om Parkash and Chinti Respondents nos. 2 and 3 have died.

The appeal was not listed thereafter before the Court on any date earlier to 10-1-1985. The learned Counsel appearing for Respondent No. 1 apprised the Court about the death of Respondents nos. 2 and 3 on 10-1-1985 and the Appellants'' counsel was also informed regarding their death. In such cir cumstances, the Appellants were allowed time to move an appropriate application within a period of two months with a specific order that the period for filing the application was being allowed subject to the condition that it shall not mean that the delay in filing the application has been condoned and the application shall be decided on merits if the same is filed. The High Court remained closed for winter vacation from 12-1-1985 to 3-3-1985. In such circumstances, in the natural cou rse of events the Appellants could have taken steps for filing the application after making due enquiries on 4-3-1985, when the High Court re-opened after winter vacations. Even if a further latitude is allowed to the Appellants and the order dated 10-1-1985 is interpreted to mean that the Appellants were allowed two months time to file the application, still the application could be filed till 11-3-1985 and not later. In the present case the applications were filed on 12-3-1985 and it is not explained as to why so much delay was caused in filing the applications. The Appellants have not sufficiently explained the delay and in these circumstances I have no alternative but to hold that there are no grounds to condone the delay in filing the applica- tions.

Two legal representatives of Smt. Chinti (Respondent No. 3) are already on record. The Appellants want to implead two more legal representatives of Smt. Chinti as are mentioned in para 4 of the application [C.M.P. (M) No. 14 of 1985]. The learned Counsel for the Respondents concedes that the estate of Smt. Chinti is sufficiently represented by Naubat Rai and Pawana Respondents who are already on record and he has no objection to the impleading of Promila and Raj daughters of Smt. Chinti as Respondents in the appeal. The prayer of the Appellants can, therefore, be allowed to this extent.

None of the proposed legal representatives of Om Parkash Respondent No. 2 mentioned in para 3 of the application [C.M.P. (M) No. 14 of 1985] are on record. I have held that the delay in filing the application cannot be condoned as no sufficient grounds have been shown by the Appellants for condoning the delay. In these circumstances, the prayer of the Appellants for impleading the legal representatives of Respondent No. 2 (Om Parkash) cannot be allowed as the application is not within time. As a consequence, it is held that the appeal against Om Parkash (Respondent No. 2) has abated.

The application C.M.P. No. 282 of 1985 is dismissed and the application C.M.P. (M) No. 14 of 1985 is disposed of in the manner that the prayer for impleading the legal representatives of Om Parkash is disallowed but the prayer for impleading the legal representatives of Smt. Chinti is allowed.

The next point for consideration is as to whether the appeal in the facts and circumstances of the present case should abate as a whole or it abates against Respondent No. 2 only.

From a narration of facts, it is evident that in the original suit filed against Mangal Dass and Naubat Rai, both the Defendants were treated as joint tort-feasors or trespassers of the disputed property. During the pendency of the suit Mangal Dass (Defendant No. 1) died and his legal representatives including Om Parkash deceased were impleaded as parties. The suit was decreed by the Senior Sub-Judge, Mandi, against all the Defendants including Om Parkash (deceased). Om Parkash (deceased) along with other Defendants filed an appeal in the Court of District Judge, Mandi, and this appeal was accepted by the Addl. District Judge, Mandi, on 20-10-1970 and the suit of the Plaintiffs (Appellants) was dismissed.

Om Parkash (deceased) after having been impleaded as a party in the suit, became a party to the proceedings and had to file an appeal before the Addl. District Judge because a decree was passed against him and other Defendants. In the present appeal also he was impleaded as a Respondent because the suit of the Plaintiffs (Appellants) was dismissed against him. In such circumstances, it cannot be said that the estate of Om Parkash (Respondent No. 2) can be represented or is represented by any person who is a party to this appeal. After impleading Om Parkash (deceased) as a party in the suit, it cannot be said that he was not a necessary party to the appeal and the rights which had accrued to Om Parkash (deceased Respondent No. 2) could be represented by any other person. The Plaintiffs (Appellants) treated Om Parkash (deceased) as one of the trespassers after the death of Mangal Dass and impleaded him as a Defendant in the suit. All the Respondents to this appeal are, therefore, to be treated as joint trespassers for the purposes of adjudication of the present dispute.

The judgment in AIR 1979 H.P. 12 (supra) is distinguishable and is not relevant for the decision of this case. In para 14 of this judgment it is stated that:

While considering this question, the most important fact to be borne in mind is that the heirs of Gopu and Niram Dass claim the disputed property as joint family property and according to them they jointly represent l/3rd share of Gopu and Niram Dass each. It should be recalled here that suit filed by Bhagat Ram is for declaration that he is the owner of l/4th share in the suit property. Defence put forward by the heirs of Gopu and Niram Dass is that Bhagat Ram has no right in the property and that each of the branches of Gopu and Niram Dass jointly owns l/3rd share in the disputed property. Thus, the heirs of Gopu and Niram Dass who are already on the record do represent in these appeals the same interest which could have been represented by the heirs of deceased Zalam Singh and Shiv Ram who are not brought on the record. This is because of the fact that the interest of the heirs of Gopu and Niram Dass is joint in estate governed by the doctrine of survivorship. These heirs being joint owners, each one of them could represent the estate jointly owned by the members of the branch to which he belongs, in the same manner in which other members of the same branch can represent. We thus find that this case is fully covered by the ratio of the above referred two decisions of the Supreme Court, because the heirs of Gopu and Niram Dass who are already on the record, sufficiently represent the estates of Gopu and Niram Dass, even in absence of Zalam Singh and Shiv Ram, just as the heirs of Dolai, who were already on record, did, in the Supreme Court case of Dolai Molliko and Others Vs. Krushna Chandra Patnaik and Others, .

In Dolai Molliko and Others Vs. Krushna Chandra Patnaik and Others, relied upon by the Hon''ble Judges in Shiv Ram and Others Vs. Bhagat Ram and Others, some of the heirs of the deceased were already on record of the case and in these circumstances, it was held that if through an oversight on account of some doubt, some other heirs are left out then these other heirs could be brought on record and impleaded as Parties later on because the estate of the deceased was fully represented by the heirs of the deceased who were already on record.

This position of law is not disputed and even in the present case I have already held that the legal representatives of Smt. Chinti can be impleaded as parties to the appeal because two of her legal representatives are already on record as parties in this appeal.

In the present case, there is no question of applying the doctrine of survivorship to the facts and circumstances of the present case as was the case in Shiv Ram and Others Vs. Bhagat Ram and Others,

In Hardial Singh and Another Vs. Bagga Singh, a suit was filed by Bagga Singh for possession of some land against Gurdial Singh and Hardial Singh on the allegation that the Defendants were trespassers on the land. During the pendency of the suit Gurdial Singh Defendant died. An application under Order 22 Rule 9 CPC read with Section 151 CPC was filed by the Plaintiff to implead the legal representatives of Gurdial Singh, but this application was contested and it was held that the application was not within time and the suit had abated against Gurdial Singh. The trial Court held that the suit could not proceed against Hardial Singh and that it had abated in toto. The Plaintiff filed an appeal and the Addl. District Judge allowed the appeal. Hardial Singh Defendant thereafter preferred an appeal in the High Court. In these circumstances, after relying upon the decision in The State of Punjab Vs. Nathu Ram, it was held that in the case of joint tort-feasors the suit could not have been brought against some of them leaving out Ors. . In such a situation even if a decree had been obtained, it could not have been successfully executed against trespassers who had not been impleaded as Defendants even though some other trespassers had been impleaded and decree against them had been obtained.

In The State of Punjab Vs. Nathu Ram, land belonging to two brOrs. was acquired for Military purposes. Compensation was awarded by the Collector, but the same was not accepted by the landowners and the matter was referred to an arbitrator who passed a joint award granting a higher compensation. An appeal against the award was filed by the State Government and during the pendency of this appeal one of the landowners died. The legal representatives of the deceased landowner were not brought on record. In these circumstances, it was held that the appeal against the surviving landowner could not succeed.

The cardinal principle is that the possibility of passing contradictory and inconsistent decrees should always be avoided.

Taking into consideration the legal position, I find that if the present appeal is allowed to proceed in the absence of Om Parkash (Respondent No. 2) then there is every possibility that the present Appellants who are the successors in interest of the Plaintiff may succeed in the appeal and be able to get a decree for possession of the disputed property against the Respondents who are parties in this Court. In such a situation the suit of the present Appellants having been dismissed against Om Parkash (Respondent No. 2) the possibility of two inconsistent and contradictory decrees being passed cannot be ruled out.

As such it is held that the appeal cannot proceed in the absence of Om Parkash (Respondent No. 2) or his legal representatives and it abates in toto.

In view of the above discussion, the appeal is dismissed as having abated with no order as to costs.