Karnataka High Court
Kuttappa vs Katrikolli Somaiah on 9 August, 1991
Equivalent citations: ILR1991KAR3985, 1991(4)KARLJ270
ORDER Krishnan, J.
1. The Revision Petitioners are the persons who are brought on record as legal representatives of deceased defendant in O.S. No. 162 of 1975 on the file of the Additional Munsiff, Virajpet. Being aggrieved by the order of the learned Munsiff granting the prayer of the plaintiff to bring them on record as legal representatives, they have preferred this Revision Petition.
2. To understand the circumstances under which the present Revision Petition has been filed, only a few facts need be stated:- The plaintiff filed O.S. No. 162 of 1975 against one Kambiranda A. Muthanna for declaration of his title to Sy. No. 113/1 and delivery of possession of 2 acres 6 guntas of land in the said survey number. The plaintiff filed an application under Order 26 Rule 9 C.P.C. for appointment of Commissioner and that having been allowed, the defendant challenged the same before this Court in C.R.P. No. 620 of 1979. The defendant (revision petitioner in the said case) died on 30-11-1983 and the present Revision Petitioners filed an application in that Revision Petition to bring them on record as legal representatives of the deceased Revision Petitioner and that application having been filed within time, they were brought on record and later on that Revision Petition came to be disposed of in February, 1984. No legal representative's application was filed before the learned Munsiff in whose Court the suit was pending within the period prescribed by law and an application was filed by the plaintiff under Order 6 Rule 17 C.P.C. on 20-4-1985 to permit them to amend the cause title by bringing on record the legal representatives of the deceased defendant who had come on record before this Court in the Revision Petition referred to already. The plaintiff also filed 3 other applications, one to condone the delay in filing the application, another for setting aside the abatement and yet another application to bring on record the legal representatives of the deceased defendant. All these applications were considered by the learned Munsiff and he held that because the legal representatives of the deceased defendant had been brought on record in the revision petition before this Court, that enured to the benefit of the plaintiff and allowed the application filed under Order 6 Rule 17 C.P.C. and in that view of the matter, he ordered, that the other applications should be filed. It is being aggrieved by this order that the legal representatives of the deceased defendant have preferred this Revision Petition.
3. That the present revision petitioners are in fact the legal representatives of the deceased defendant and they were in fact brought on record at their own instance, in the previous Revision Petition referred to already is admitted; that no separate application was filed within the prescribed time by the plaintiff before the learned Munsiff under Order 22 Rule 4 C.P.C. to bring on record the legal representatives of deceased defendant is also admitted on behalf of the plaintiff. Therefore, the only aspect that has to be examined is whether the fact that the legal representatives of the deceased defendant were brought on record in the Revision Petition referred to already enures to the benefit of the plaintiff in the original suit and whether therefore the suit did not abate?
4. Learned Advocate for the respondent-plaintiff invited my attention to a Decision of the Supreme Court and pointed out that under similar circumstances, the Supreme Court has held that the order bringing on record the legal representatives at one stage of the suit would enure to the benefit of the parties in the original suit despite the fact that the said proceeding was directed against an interlocutory order passed by the original Court. Therein Their Lordships have referred to the Decision of the Privy Council reported in 1917 Privy Council 156. It has been observed by the Privy Council at page 161 as hereunder:-
1. Rangubai Kom Sankar Jagtap v. Sunderabai Bhratar Sakharam Jedeh and Ors.,
2. Brij Indar Singh v. Lala Kanshi Ram, 1917 PC 156 "But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, and the prayer, which seems to have been made ob mojorem cautelam, by the plaintiff, in his application to the District Judge Prenter, under Section 365, was superfluous and of no effect. Coates, the judgment-debtor, was only formally called, and the non-presence of his representatives would afford no ground for the abatement of the suit."
5. The Supreme Court after referring to this principle recognised by the Judicial Committee of the Privy Council, has also given several Illustrations where the application of this principle is called in different situations. The Supreme Court has observed as hereunder:-
"But there is another principle recognised by the Judicial Committee in the aforesaid decision which softens the rigour of this rule. The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit. The application of this principle to different situations will help to answer the problem presented in the present case. (1) A filed a suit against B for the recovery of possession and mesne profits. After the issues were framed, B died. At the stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure for the benefit of the entire suit. (2) The suit was decreed and an appeal was filed in the High Court and was pending therein. The defendant died and his legal representatives were brought on record. The suit was subsequently commanded to the trial Court. The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. (3) An appeal was filed against an interlocutory order made in a suit. Pending the appeal the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so whether in the appeal the trial Court's order was confirmed, modified or reversed. In the above 3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the suit, be it in the suit or in an appeal against the interlocutory order or final order made in the suit, for an appeal is only a continuation of the suit Whether the appellate order confirms that of the first Court, modifies or reverses it, it replaces or substitutes the order appealed against, it takes it place in the suit and becomes a part of it. It is as it were the suit was brought to the appellate Court at one stage and the orders made therein were made in the suit itself. Therefore, that order enures for the subsequent stages of the suit."
The present case comes squarely within the meaning of the third illustration in the portion extracted above. The learned Advocate for the revision petitioners contended in the first instance that the portion extracted above and more especially in relation to the third illustration are just mere observations which have no binding effect and even otherwise they are in the nature of obiter and therefore they are not binding on this Court. Having regard to the elaborate way in which different situations which arise for application of this principle have been discussed, it cannot be said that these are only passing observations made by the Supreme Court.
6. Even assuming for a moment that these observations are in the nature of obiter, it is fairly well settled that the same are also binding on all the Courts in the Country and if any authority is required for the said proposition, I may usefully refer to the Division Bench of this Court reported in 1978(2) Kar.L.J. 294 and also another Division Bench Decision reported in 1984(1) Kar.L.J. 145. At page 153 in para 24, it has been observed by this Court as hereunder:
"Thus it is clear that it is not only the ratio decedendi of a case decided by the Supreme Court that is binding but any declaration of law even by way of obiter dicta, if it is declared unambiguous, binds all the Courts in India. That being so we are of the considered view that the law declared by the Supreme Court in the aforesaid Decision, binds this Court and that the provision in Section 3. Indian Telephone Industries v. State of Karnataka, 1978(2) KLJ 294
4. Parvathi Textile and another v. Director, Enforcement Directorate, 1984(1) KLJ 145 12(2) of the Foreign Exchange Regulation Act, 1947, includes even an export on sale by a seller."
The statement of law made by the Supreme Court and extracted already, is clear and unambiguous cannot be disputed and when that is so and even assuming that they are in the nature of obiter dicta, they would be binding on this Court and there is no scope to take any different view of this matter. Therefore, it is clear that the law laid down by the Supreme Court in the observations extracted already, is absolutely dear that if the legal representatives of a party are brought on record even in an ancillary proceeding arising out of an order passed on an interlocutory application, that would enure to the benefit of the party and in that view of the matter, there is no question of abatement of the suit only because an application for bringing the legal representatives on record was not filed in that suit within the prescribed time.
7. This principle enunciated by the Supreme Court has been followed in HARBANS LAL v. VED PARKASH, In that case the legal representatives of the deceased defendant had been brought on record in an appeal preferred against grant of interim injunction and it was held that the fact that the legal representatives of the deceased defendant had been brought on record in such an appeal enured for the benefit of all the subsequent stages of the suit and it did not abate. This Decision also fortifies the view I have taken in this regard.
8. The learned Advocate for the Revision petitioner next contended that even assuming that the legal representatives of the deceased defendant having been brought on record in the High Court in the revision petition filed against an interlocutory order enures to the benefit of the plaintiff in the suit, the application filed under Order 6 Rule 17 CPC for amendment of the plaint cannot be entertained and therefore the learned Munsiff was not right in granting the amendment prayed for. Again assuming for a moment that no application under Order 6 Rule 17 CPC could be filed for amendment of the cause title of the plaint, if by legal fiction, the fact that the legal representatives of the deceased defendant were brought on record in the High Court, would enure to the benefit of the party even in the suit which is pending before the trial Court, it appears to me that no other kind of application even, need be filed by the party and it is sufficient if this fact is just brought to the notice of the Court and on account of the above said legal fiction, the Court should permit the party to amend the cause title and in that view of the matter, even accepting the contention of the learned Advocate for Revision petitioner that an application under Order 6 Rule 17 CPC cannot be maintained under such circumstances, it would not in any way enure to the benefit of the revision petitioner, in the view I have taken.
9. In that view of the matter, it is clear that the learned Munsiff was right in permitting the plaintiff to amend the cause title of the plaint by mentioning the names of the legal representatives of the deceased defendant who had already been brought on record in the Revision Petition adverted to already. Therefore, it is clear that there is no merit in this revision petition and accordingly, it is dismissed.