Andhra HC (Pre-Telangana)
Velamala Appa Rao And Anr. vs Baggu Appayya And Anr. on 8 August, 2005
Equivalent citations: 2005(6)ALD802, 2005(5)ALT695
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The Second Appeal arises out of the judgment and decree of the court of the learned Principal Senior Civil Judge, Srikakulam in A.S. No. 11 of 1997. The lower appellate court had reversed the judgment of the court of learned District Munsif, Narasannapeta, in O.S. No. 31 of 1992.
2. The appellants herein filed the suit against the respondent and his son for the relief of declaration that the wall in between them is common to both the parties and that the latter be restrained from making any constructions using the said wall as base, and from interfering with the right of the appellants to rest the 'Vennupatti' on the joint wall (the last part of the relief was claimed as one for mandatory injunction). The 2nd defendant died during the pendency of the suit. Therefore, the suit was treated as abated against him through an endorsement dated 19-1-1993. The trial court decreed the suit through its judgment dated 13-9-1996. Aggrieved thereby, the respondent herein filed the appeal. He canvassed several grounds touching on the merits as well as the one relating to the alleged abatement of the suit consequent on the death of his son. The lower appellate court rejected the contention of the respondent herein on merits and upheld the findings of the trial court. However, it allowed the appeal and set aside the decree on the ground that the suit abated on account of the death of the 2nd defendant. Hence the Second Appeal.
3. Sri Badana Bhaskara Rao, learned Counsel for the appellants, submits that the deceased-2nd defendant was none other than the son of the respondent herein and that both of them were impleaded in the suit as the members of the joint family. He contends that the second defendant died issueless and his only legal representative was the respondent herein, who is his father. Learned Counsel points out that the joint family can be represented by any one of the members and even otherwise, once the respondent herein is the legal representative of the deceased-2nd defendant, and when no objection was raised by him during the pendency of the suit, the lower appellate court was not justified in reversing the decree of the trial court. He placed reliance upon certain judgments rendered by the Supreme Court and other High Courts.
4. Sri M. Ram Mohan, learned Counsel for the respondent, on the other hand, submits that the cause of action in the suit was indivisible and in that view of the matter, death of one of the defendants would bring about abatement of the suit as a whole. He submits that, once the trial court took note of the death of the 2nd defendant and found that no steps were taken to bring his legal representatives on record, it ought to have treated the entire suit as abated and that this fatal defect was rectified by the lower appellate court. He too relied upon certain judgments.
5. The appellants filed the suit for the reliefs referred to above against two persons namely; the respondent herein and his son. A perusal of the plaint discloses that the relief was claimed against both the defendants as being members of the joint family and as persons interfering with the rights of the appellants and not as holders of independent rights or interest, vis-a-vis the suit schedule property. It is a matter of record that the second defendant died issueless. Naturally, even if there are any other legal representatives for him, his father-the respondent herein happens to be one among them.
6. A perusal of Order 22 Rule 4 of the Code of Civil Procedure discloses that the death of one of the defendants, ipso facto, does not result in abatement of the entire suit. Much would depend on the nature of reliefs claimed against them and the severability of the cause of action. Sub-rule (1) thereof, discloses that the abatement would result if only the right to sue survives, vis-a-vis the dead person. Sub-rule (3) mandates that, where no steps are taken to bring the legal representatives on record, the suit shall abate against the deceased-defendant.
7. Whenever the death of one of the defendants is to result in the abatement of the suit as a whole, the court is under an obligation to record a finding to that effect. In the absence of the same, the suit would survive, vis-a-vis the other defendants. Even when the court does not record a finding to that effect, the remaining defendants can put forward their contentions on this aspect. Once the suit is permitted to be proceeded with despite the death of one of the defendants, the objections in this regard cannot be permitted to be raised at a later stage in appeal or revision. The reason is that if such an objection has been raised at the earliest, the other party would have an opportunity to take necessary steps. The principle of estoppel gets attracted.
8. There is another angle from which this appeal needs to be examined. The respondent is one of the legal representatives of the deceased-2nd defendant. In Mahabir Prasad v. Jage Ram, , it was held that when a defendant or respondent in an appeal dies and that one of his legal representatives is already on record in another capacity, the suit or appeal, as the case may be, does not abate, even where no steps are taken to bring the legal representatives on record. To the same effect is the judgment in Bhure Khan v. State of Madhya Pradesh, AIR 1982 SC 948(2).
9. The lower appellate court did not record any finding that the cause of action against the respondent on the one hand and his son, the second defendant, on the other hand was separate or otherwise. It relied upon a judgment of the Apex Court in Sri Chand v. Jagdish Pershad, AIR 1966 SC 1427. That was a case in which one of the appellants died during the pendency of the appeal and no steps were taken to bring the legal representatives on record. The death occurred when the proceedings were pending before the trial court itself. On finding that the grounds pleaded in the appeal were common to all, it was held that the appeal, as a whole, abated. The situation in the instant case is different. The death of the second defendant took place during the pendency of the suit and the surviving defendant i.e., the respondent herein did not plead that the suit abated as a whole. The other decisions relied upon by the lower appellate court related to the death of the parties during the pendency of the concerned proceedings themselves.
10. Though the trial (sic. lower appellate) court dismissed the appeal (sic. suit) on the sole ground that the death of the 2nd defendant had resulted in abatement of the suit, it answered the point framed by it on merits, in favour of the appellants herein. This Court does not find any basis to unsettle that finding.
11. For the foregoing reasons, the Second Appeal is allowed and the judgment of the lower appellate court, insofar as it set aside the decree of the trial court on the ground that the suit abated on account of the death of the 2nd defendant, is set aside. The decree of the trial court shall stand restored in all aspects. There shall be no order as to costs.