Calcutta High Court
Dalsinger Singh vs Dayamoyee Sadhukhan on 4 October, 2005
Equivalent citations: 2006(2)CHN420
JUDGMENT P.K. Samanta, J.
1. This is an application for stay of all further proceedings of execution of eviction decree passed in the year 1981.
2. The ejectment suit was filed sometime in year 1972 by the plaintiffs/ respondents against the predecessor-in-interest of the defendents/appellants namely Dalsinger Singh since deceased.
3. The said suit was ultimately decreed in favour of the plantiffs/respondents sometime in the year 1981. The original defendant/appellant preferred an appeal being F.A. No. 312 of 1981 against the said judgment and decree of the Trial Court.
4. The original defendant/appellant died on 31.12.90. An application for substitution on his death was though made but the same was defective. In spite of direction by the Court such defect was not removed consequent thereupon the appeal stood dismissed on 9.6.2000.
5. However, the said appeal was restored on an application. Thereafter heirs and legal representatives of the said deceased original defendant/appellant were substituted.
6. The plaintiffs/respondents have put the decree into execution in Execution Case No. 130 of 2002 in the Court of Chief Judge, Presidency Small Causes Court, Calcutta.
7. In the meantime one of the substituted heirs of the deceased appellant, namely Bechha Singh, the appellant No. l(c) died intestate on 23rd December, 2002.
8. The defendant/appellants made an application for substitution after setting aside abatement of the appeal on the death of the said appellant No. 1(c) as above.
9. This Court by an order dated 18.05.2005 has dismissed the said application upon contested hearing of the parties. In view of the aforesaid order of dismissal, the appeal by the appellant No. 1(c) stands abated.
10. In these state of affairs while the above application for stay was taken up for hearing the obvious question arose as to, on the abatement of the appeal in respect of one of the appellants, whether the whole appeal would stand abated. Because it cannot be disputed that the application for stay as above would be rendered redundant once it is held that the appeal stands abated as a whole.
11. Mr. A.B. Raut, learned Advocate appearing on behalf of the applicants/ appellants relying upon the provisions of Order 41 Rule 4 of the Code seriously contended that this appeal is against the judgment and single common decree of eviction of the defendants/appellants and as such proceeds on the grounds common to all the defendants/appellant, and therefore the abatement of the appeal in respect of one of the appellants would not preclude the other appellants to proceed with same in law and further this Appellate Court may very well reverse or vary the decree, as the case may be, in favour of all the appellants.
12. He sought to fortify his contention by relying upon the Division Bench decision of this Court Amal Krishna Aditya v. Ganesh Chandra Das. In the said decision, amongst other, it has been held that the heirs of the deceased tenant who inherit the tenancy become tenants-in-common and not joint tenants. In the said judgment plethora of conflicting decisions rendered by the Supreme Court and Division Benches of this Court on the issue as to whether on the death of a tenant his heirs would inherit the tenancy as joint tenants or tenants-in-common have been considered along with the decisions rendered by the Supreme Court on the law of precedent. The said Division Bench upon such consideration and by following the decision Boddu Vekata Krishna Raw v. Boddu Satyavathi, and applying the ratio of the said decision as well as the decision of the Supreme Court Union of India v. Raghubir Singh, has held as such.
13. We have no difficulty in following the aforesaid decision of the Division Bench of this Court as the same has been rendered by following the ratio decidendi of all the decisions of the Supreme Court as well as the various High Courts.
14. Once it is accepted that the heirs of the deceased tenant inherited the tenancy as tenants-in-common, it becomes necessary to decide in this case on the death of one of the tenants-in-common being appellant herein, whether the appeal itself as a whole would abate. In other words in view of Order 41 Rule 4 of the Code the present appeal being by the other tenants-in-common which proceeds on common ground whether would very well be competent even on the death of one and in the event of success in this appeal, the heirs of the deceased tenant-in-common would be entitled to the benefit of the decree.
15. The answer lies in the interpretation of the provisions of Order 41 Rule 4 of the Code which reads as under:
One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all--Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
16. Upon bare reading of the provisions of Order 41 Rule 4 of the Code it is clear that if the decree, appealed from, proceeds on any ground common to all the plaintiffs or all the defendants, then in a case where any one of the plainttiffs or the defendants has preferred an appeal, the Court may vary or reverse the decree in favour of all the plaintiffs or the defendants as the case may be. On the face of the language of the said provisions it does not suggest that where more than one plaintiff or defendant have preferred an appeal which proceeds on common ground to all then in the event of death of one the appeal would not abate as a whole and would be very much competent by the surviving appellants.
17. Mr. Raut in support of his contention that in this case in view of the Order 41 Rule 4 of the Code the appeal will not abate as a whole even on the death of appellant No. 1(c), one of the tenants-in-common relied on the decision of the Supreme Court reported AIR 2004 SC 2546 Bajranglal Shivchandrai Ruia v. Shashikant N. Ruia and Ors. In the said case 'B' and 'S' were defendants in the original suit. The suit was dismissed and the plaintiff carried an appeal to the Division Bench. In the appeal both 'B' and 'S' were respondents. The Division Bench reversed the judgment and decree of the Single Judge. The suit was decreed. Both 'B' and 'S' who were respondents before the Division Bench were aggrieved by the said decree. Both 'B' and 'S' filed two separate leave petitions before the Supreme Court. Leave was granted to both and in point of time leave to 'B' was earlier to 'S'. Thereafter appeal filed by 'S' was dismissed for default for non-removal of office objections. In these contexts contentions were raised that while one appeal against the same decree has been dismissed then the other appeal against the same decree must fail on two-fold grounds namely res judicata and it may result in conflicting decrees in the event of success of 'B' before the Supreme Court.
18. The Supreme Court rejected both the contentions. In respect of the second point it was held in paragraphs 44 and 67 as under:
In our view, this contention has no merit. Where there are several defendants, who are equally aggrieved by a decree on a ground common to all of them, and only one of them challenges the decree by an appeal in his own right, the fact that the other defendans do not choose to challenge the decree or that they have lost their right to challenge the decree, cannot render the appeal of the appealing defendant in fructuous on this ground. In fact, Rule 4 and Rule 33 of Order 41 of the CPC are enacted to deal with such a situation.
In our view, this is the litmus test to decide whether an appeal should be dismissed for possible conflict of decrees or not. Applying this test, it appears to us that the appeal before us cannot be dismissed of Shyam Sundar is the fifth respondent before us, who has been served, but has chosen to remain absent. The fact that Shyamsundar's own appeal fail for non-compliance with the office objections cannot have the consequence of defeating the appeal of the present appellant Bajranglal. Order 41 Rule 4 read with Rule 33 invests this Court with sufficient power to entertain the appeal of Bajranglal before us and to make any appropriate order thereupon consonant with justice, equity and good conscience. In the result, we overrule the preliminary objections and hold that the appeal is maintainable.
19. It may be stated herewith that the distinctive feature of said decision is that there were two separate appeals and not one like the case in hand. In the said decision it was nowhere held that, in the event of success of 'B' in his appeal before the Supreme Court, 'S' would be entitled to the benefit of the decree passed in favour of 'B' notwithstanding the fact of dismissal of his appeal in the Supreme Court.
20. Next decision cited by Mr. Raut is one Mahabir Prasad v. Jage Ram, which was considered by the Supreme Court in the case of Bajranglal Shivchandrai (supra) at paragraph 51 of the report. In that case the plaintiff Mahabir Prasad, his mother and his wife obtained a decree against Jage Ram and two others for a certain amount. Execution of the decree was resisted by the defendants. The Subordinate Judge upheld the contentions of the defendants and dismissed the application for execution. Mahabir Prasad alone preferred an appeal to the High Court and impleaded his mother Gunawanti Devi and his wife Saroj Devi as party respondents. Saroj Devi died and Mahabir Prasad applied that her name be struck off from the array of respondents. The High Court made an order granting the application "subject to all just exceptions". The High Court dismissed the appeal on the ground that the appeal abated in its entirety as the heirs of Saroj were not brought on record. The Supreme Court allowed the appeal and held that Order 41 Rule 4 of the Code invests the Appellate Court with power to reverse or vary the decree in favour of all the plaintiffs or defendants even though they had not joined in the appeal if the decree proceeds upon a ground common to all the plaintiffs or defendants.
21. It is also worthwhile to note the observations made at paragraph 6 of the said report which reads as under:
Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustained.
22. The above decision of the Supreme Court may be explained by observing in the first place that there was no appeal by Mahabir Prasad against his wife Saroj Devi. In other words Mahabir was not seeking any remedy in his appeal against his wife Saroj Devi. In all probable interpretation of such situation it can be said that either Saroj was a non-appealing party or she would have supported Mahabir in challenging the decree. In the first case the principle of the Order 41 Rule 4 very well applied as Saroj being a non-appealing party. In the second case the position of Saroj was like that of a co-appellant on whose death her heir, in any case one of her heirs, namely her husband, was on record and as such there was no question of abatement of the appeal.
23. The only other decision cited by Mr. Raut is the case of G. Debangshi v. Bimalendra Nath . The said decision is not relevant for the present purpose. In the said case the plaintiffs filed a suit for eviction under the provisions of West Bengal Premises Tenancy Act, 1956, inter alia, on the ground of reasonable requirement against defendant Nos. 1 and 2. The defendant No. 2 alone contested the suit. The Trial Court found that the service of notice on one of the tenants-in-common amounts to service of the same to other tenants as well and ultimately decreed the suit on the ground of default and reasonable requirement. Before the Trial Court the defendant No. 2 urged that the defendant No. 1 who was a mental patient living in the Mental Hospital at Ranchi had died on 27th December, 1970. It was accordingly contended that no substitution of the heirs and the legal representatives of the defendant No. 1 having been made by the plaintiffs. They were not entitled to get the decree. It was alleged that besides defendant No. 2, the defendant No. 1 left behind him one married sister, who of course was not residing in the suit premises. The Trial Court disbelieved the version of defendant No. 2 on this point. The defendant No. 2 alone preferred an appeal before the Lower Appellate Court. The same point was urged before the Lower Appellate Court. The Lower Appellate Court agreed with the view of Trial Court in this regard. It further took the view that as the sister was not residing in the suit premises she was not a tenant within meaning of the West Bengal Premises Tenancy Act and, as such, her substitution was not required. However, the Lower Appellate Court send the case back on remand for consideration of the question whether partial eviction would satisfy the requirement of the plaintiffs. The plaintiffs filed a second appeal before this Court while defendant No. 2 alone also filed an appeal against the said decision. Both the appeals were heard together. The Division Bench while dealing with the said question held that in the facts of the said case it was not neccessary to enter into the said controversy because it was immaterial whether the substitution of all the heirs of the deceased defendant No. 1 was made or not. The defendant No. 1 who was stated to have been died, did not file any written statement nor contested the suit. The married sister who was not residing in the suit premises could not, therefore, contest the suit even on the ground of notice. She could not possibly make out a case which was never made out by her predecessor-in-interest. That being so the only other heir of the deceased defendant No. 1, namely the defendant No. 2 who was the respondent in the appeal, was already on record. He represented the estate of the deceased defendant No. 1. In such a case the decision will be binding upon the heir who was not brought on record.
24. In the first place the aforesaid decision is not on the scope and application of the provision of Order 41 Rule 4 of the Code on the facts stated above. Secondly the defendant No. 21 respondent being one of the heirs of the deceased defendant No. 1 was already on record. There was no question of abatement of the appeal in its entirety.
25. In view of the discussions as above all the decisions cited by Mr. Raut are of no avail to the appellants/petitioners.
26. The decisions of the Supreme Court Rameshwar Prasad v. Shambehari Lal, cited by Mr. Aniruddha Chatterjee, learned Advocate appearing on behalf of the respondent No. 3/opposite party, will clinch the issue in this case. The aforesaid judgment is exhaustive and leaves no scope for applying the provisions of Order 41 Rule 4 or in any event Order 41 Rule 33 of the Code in the case in hand. The Supreme Court also in both the cases of Bajranglal Shivchandrai (supra) and Mahabir Prasad (supra) had accepted the principle as laid down in the abovequoted decision but did not apply the principle as laid down therein on the particular facts and circumstances of those two later cases. The Supreme Court had accepted in principle that where either all the plaintiffs or the defendants have appealed against a decree passed in a suit and such appeal proceeds on common ground to either all the plaintiffs or the defendants there, upon abatement of the appeal against any one of the appellants, the principles underlying the provisions of Order 41 Rule 4 and Rule 33 would not be applicable.
27. For the sake of brevity the relevant portions of the judgment are not reporduced here. Paragraphs 14 to 19 of the said report make the position clear.
28. The other decision cited by Mr. Chatterjee Ram Sarup v. Munshi, can also be looked into in this regard. In the said decision the Supreme Court primarily held that there can be no partial preemption because pre-emption is the substitution of the pre-emptor in place of vendee. In that context in an appeal from a pre-emption decree preferred by the vendees, on the death of the 1st appellant it was held as the decree was a joint one and a part of the decree had become final, by reason of abatement, the entire appeal must be held to be abated.
29. In view of the aforesaid discussions and on the reasonings as above it must be held in this case that the appeal before this Court has abated in its entirety.
30. Again in view of such abatement of the entire appeal in this Court the appellants / petitioners are not entitled to any order on their stay application.
31. The same shall accordingly stand rejected.
32. There will be no order as to costs.
33. Urgent xerox certified copy of this judgment, if applied for, be supplied to the parties as expeditiously as possible.
P.N. Sinha, J.
34. I agree.