Andhra HC (Pre-Telangana)
Mohd. Safdar Shareef (Died) Per L.Rs. ... vs Mohammed Ali (Died) Per L.R. on 3 March, 1993
Equivalent citations: 1993(1)ALT522
JUDGMENT P. Ramakrishnam Raju, J.
1. The question involved in this Letters Patent Appeal is, whether a Division Bench hearing the Letters Patent Appeal can set aside the Judgment and remand the matter to the learned single Judge to dispose of the appeal which is the subject-matter of the L.P.A. solely for the purpose of enabling the appellants to bring the legal representatives of one of the respondents on record and to dispose of the appeal afresh.
2. The facts which give rise to this L.P.A. are briefly stated hereunder. The respondent claiming to be the Mutuvalli of the Masjid-e-Kalam of Musheerabad, Bholakpur village, Bakaram Taluq and Urban District, Hyderabad, filed O.S.No. 31 of 1969 on the file of the IV Additional Judge, City Civil Court, Hyderabad against the appellant Nos.l to 4. Since appellant Nos.l to 4 died, appellant Nos. 5 to 11 were brought on record. The plaintiff's case is that the plaint schedule property which is an extent of 3150 sq. yards in Survey No. 247/1 of Bakaram village is a service Inam in respect of the said Masjid and he is the Inamdar. Originally, the first defendant occupied an extent of 1939 sq. yards, but later he occupied the adjacent land also making the total to 3150 sq. yards. As the first defendant has stated that the land is in occupation of all the four defendants, the plaintiff filed the suit against all the defendants for possession together with mesne profits and costs. The third defendant filed written statement contending that only an extent of 1932 sq. yards of site was in their occupation being the land granted by late Haji. Mohd. Vazir Ali to his late brother Mohd. Abdulla Shareef covered by three plots bearing Nos. 18,22 and 28. Their brother was the owner of the said land on payment of Nazool quit rent at the rate of six pies per sq. yard per annum as per registered Nuzulnama dated 9th Thir, 1352 F. It is also their case that their brother Abdulla Shareef constructed a tiled house in one of the said plots and obtained Municipal Number also after paying the compound fee. Abdulla Shareef died in 1958 leaving the four brothers, his widow and two sisters. His widow and another brother, Mohd. Adam Shareef died leaving three brothers and two sisters.
3. They resisted the suit among other grounds that the suit is not maintainable since the plaintiff is not Mutuvalli. The trial Court accepted this contention and dismissed the suit. The respondent filed C.C.C. A.74/77. It is the admitted case that the second defendant by name Mohd. Yousuf Shareef died on 21-9-1980 while C.C.C.A.74/77 filed by the respondent was pending. It is also admitted that the legal representatives of the said second defendant were not brought on record. However, the learned single Judge allowed the appeal and decreed the suit holding that the first respondent-plaintiff is the Mutuvalli. Aggrieved by the said decree and judgment, the surviving defendants and some legal representatives of the other defendants filed this Letters Patent Appeal.
4. Sri R. Venugopal Reddy, the learned Senior Advocate appearing for the appellants vehemently contended that the decree passed by the learned single Judge is a nullity inasmuch as the legal representatives were not brought on record after the death of the second respondent and so, the whole appeal before the learned single Judge abated. He relied upon a decision reported in State of Hyderabad v. Mohammed Afzal, wherein a Division Bench of this Court held as follows :-
"The principle that every joint owner of the land is the owner of every cent of the Iand is well known and in the circumstances, it is obvious that the compensation awarded would be to apply this analogy for each party, so that if any one of the owners is absent or is not a party or ceased to be a party, the compensation for that piece would not represent the compensation to that parcel of the land. A perusal of the decree passed by the District Judge would show that the compensation was awarded for the entire land at a particular rate and though, because all of them are agreed the compensation was directed to be divided amongst the share holders, nonetheless in fact and in reality the compensation was one which was for the subject matter of the appeal, namely, the entire mukhta land comprising survey numbers 34/1 and 34/2. As we have already pointed put, the 6th respondent is interested in both the survey Nos. 34/1 and 34/2. In the circumstances, any abatement of appeal against him would make the appeal as against the other claimants incompetent."
In similar circumstances, the Supreme Court in State of Punjab v. Nathu Ram, , held as follows:
"The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amounts of compensation for the same parcel of 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 one joint decree-holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ram alone cannot proceed."
In a later case reported in B.S. Singh v. R. D. Singh, AIR 1973 SC 204, the Supreme Court observed as follows:
"Now the question is whether the appeal has abated or not. As seen earlier in the plaint a joint claim is made against all the defendants. The first appellate Court, as mentioned earlier, decreed the suit in part against all the defendants. The High Court has dismissed the suit against all the defendants. In this Court relief asked for was against all the defendants. No separate claim was made against any of the defendants. Under these circumstances, quite clearly the appeal has abated as a whole under Order XXII, Rule 4 of the Civil Procedure Code. The appeal is accordingly dismissed."
The learned Counsel has also cited a decision reported in Venkata Ram Rao v. Narayana, wherein, a Division Bench of this Court considered a similar question, namely, whether the appellate Court has the power to proceed with the hearing of the appeal when one of the plaintiffs or defendants dies and no substitution is effected within time contemplated under Order 22, Rule 3, C.P.C. The Supreme Court observed as follows:-
"Thus it will be seen that Order 22 C.P.C. provides a complete code to deal with questions which arise by reason of the death of one of the parties to a suit or appeal. That these rules are mandatory can admit of no doubt, for, as has been pointed out earlier, the death of a person takes away the jurisdiction vested in the Court to pass a decree and, in terms of Rules 3 and 4 read with Rule 11 of Order 22, the suit or appeal abates, and, on abatement or on dismissal under Rule 8, no fresh suit shall be brought on the same cause of action as provided in Rule 9(1) unless the abatement is set aside on an application made under sub-rule (2) of the said rule within the period of limitation."
It is further observed that it is well settled and uniformly held by all the Courts in India that an appeal will abate as a whole if the case is of such nature that the appeal cannot proceed in the absence of the legal representatives of the deceased appellant. The basis of this rule is that to decide an appeal without bringing the legal representatives on record in a case of that nature, will produce two inconsistent and contradictory decrees in the same litigation with respect to the same subject-matter.
5. Now, therefore, the next question to decide is, whether the subject matter is common to all the defendants and whether the decree is joint and indivisible.
6. A reading of the plaint clearly shows that a common decree for possession and profits is sought for against all the defendants. Therefore, the decree in question is joint and indivisible. Even according to the averments of the written statement, the defendants contend that they are jointly in possession and enjoyment of 1932 sq. yards of site. Therefore, it is clear that any decree that may be passed against some of the defendants would be inconsistent with a decree of dismissal of the suit in respect of the other defendants. Therefore, the appeal before the learned single Judge has abated.
7. However, Sri K.F. Baba, learned Advocate for the respondents maintained that as per the averments of the written statement, Mohdi Abdulla Shareef, brother of the defendants was granted three plots bearing Nos. 18,22 and 28 of an extent of 1932 sq. yards and he has constructed a house and after his death, the defendants came into possession, it is not necessary to bring the legal representatives of the second defendant inasmuch as the other defendants on record represent the estate of Mohd. Abdulla Shareef. He also further contended that a distinction should be drawn between the cases in which the original party dies and cases in which one of several legal representatives dies. He relies on a decision reported in Muthuraman v. Adaikappa, AIR 1934 Mad. 730, wherein, it was observed as follows:-
"Whatever the position may be as regards the first group of cases, I am of opinion that in the second group there is no lack of representation of the estate, that the remaining representatives can as well represent the estate as the original group did, and that the principle applicable to this class of cases is to be gathered from those decisions which uphold the doctrine of representation of an estate by some of the heirs of a deceased person when such heirs are sued as defendants in the first instance."
For a similar purpose, he relied upon another decision reported in Muthuraman v. Adikappa, AIR 1936 Mad. 336.
8. The learned Counsel for the respondents, relying upon a decision reported in Srinivasulu Chetti v. Guraviah, AIR 1927 Mad. 505 submitted that inasmuch as all the necessary parties are before the Court now, the legal representatives of the second defendant may be impleaded now and the matter may be remitted back to the learned single Judge after setting aside the judgment under appeal. A similar view was taken in cases reported in Ram Sain v. Bhagirath, and Hayalappa v. Hyalappa, AIR 1972 Mysore 266. These are the cases which came up to the High Court by way of second appeal. The High Court allowed the second Appeals and remitted the matter back to the appellate Court in order to enable the appellant to implead the legal representatives and then dispose of the matter according to law.
9. We may observe that we cannot follow the same procedure in this case. The Letters Patent Appeal does not arise out of the second Appeal, but, it is an appeal against the Judgment of the learned single Judge. Further, as we are of the view that since the suit itself has abated and the decree has become a nullity, there is no question of setting aside such a decree and enable the respondents to implead the legal representatives of the deceased respondent. No question of setting aside of the decree which is a nullity arises.
10. The meaning of the word 'abate' as per Law Lexicon of Venkataramaiya's, is "to throw down, to beat down, destroy, quash; to do away with; to put an end to, to nullity, to make void". In view of this meaning, the appeal which has abated by operation of law, cannot be revived and the decree which has become a nullity being a decree against a dead person, cannot also be revived. Therefore, the inescapable result of the above discussion is that the appeal before the learned single Judge has become abated and the decree passed by him is a nullity.
11. The learned Counsel for the respondent has submitted that the respondent was not aware of the death of the second respondent while the appeal was pending before the learned single Judge and therefore, an opportunity must be given to him to file an application to bring the legal representatives of the second respondent in this Letters Patent Appeal. He also contended that it is the duty of the Counsel for the respondents therein (appellants herein) to bring it to the notice of the Court about the death of the second respondent and reliance has been placed upon Rule 10-A of Order XXII C.P.C.
12. Rule 10-A of Order XXII C.P.C. may be usefully extracted here:-
"10-A. Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist."
13. In this connection, the learned Counsel for the respondent relied upon a decision reported in Gangadhar v. Raj Kumar, wherein the Supreme Court observed as follows:-
"This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end, one cannot expect the other party to be a watchdog for day to day survival of the other party. When the appeal on being notificed for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedural lapse, this very innovating provision has been introduced, whereby, a duty is cast upon the learned Advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the learned counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client."
In this case, when the second Appeal was pending before the High Court of Madhya Pradesh, the sole respondent died on 19-4-1980. His adopted son filed I.A.No. 1980/81 to be impleaded in the appeal as respondent on 1-7-1981. On the basis of this information, the appellants filed I.A.No. 2110/81 on 15-7-1981 for impleading the legal representatives of the deceased. It is also stated in the said application that they came to know about the death of the respondent only when the alleged adopted son filed an application I.A.No. 1980/81 on 1-7-1981. The High Court dismissed the application on the ground that the application was filed beyond 90 days after the death of the deceased and the appeal has abated. Questioning this order, a Special Leave application was filed in the Supreme Court. The Supreme Court, no doubt observed that in order to see that the administration of justice is not thwarted by such technical procedural lapse, Rule 10-A C.P.C. an innovating provision has been introduced, whereby a duty is cast on the learned advocate appearing for the party who comes to know about the death of the party to intimate the Court about the death of the party represented by him. The Supreme Court noticing the fact that the application No. 1980/81 for substitution was made on 1-7-1981 for the first time more than one year after the death of the deceased and the appellants moved I.A. No. 2110/81 within 15 days from the date of knowledge of the death of the deceased and in that view, held that when the appellants are not aware or had no knowledge about the death of the deceased, the application filed by the appellants to bring the legal representatives on record, cannot be rejected. It may be also noticed that this application was filed when the appeal was pending before the High Court. Therefore, the Supreme Court observed that the High Court should have allowed the application and bring the legal representatives on record instead of dismissing the application on the technical ground that the application was filed beyond 90 days of the death of the deceased. Therefore, this decision has no application to the facts of this case, where the appeal was allowed and a decree was granted setting aside the decree of the trial Court without impleading the legal representatives of the second respondent therein.
14. As the interest of the 2nd respondent in C.C.C.A.74/77 was indivisible from that of the others, the judgment rendered in the appeal being a nullity, the question of breathing life into that judgment would not arise and so we answer in the negative the point formulated at the threshold of the judgment.
15. For all these reasons, we are of the opinion that the decree of the single Judge has to be set aside and the suit dismissed. We accordingly, allow the appeal, but in the circumstances, without costs. C.R.P.No. 2764/88:-
16. The petitioners in C.R.P. are the plaintiffs in O.S.No. 767/87 on the file of the IVth Additional Judge, City Civil Court, Hyderabad. They filed the suit for declaration that the decree passed in O.S.No. 31/69 by the High Court in CC.C.A.No. 74/77 is without jurisdiction and not binding on them and for permanent injunction restraining the respondents from dispossessing them in execution of the said decree in O.S.No. 31/69. They have also filed I.A. No. 697/87 under Order 39 Rules 1 and 2 C.P.C. for temporary injunction pending the suit. The petitioners allege that they have obtained the schedule land on rent from their landlords and they have constructed sheds and developed the property. The property originally belonged to Wakf Board. The first respondent obtained a collusive decree without making the petitioners as parties in O.S.No. 31/69. Although the suit was dismissed by the trial Court, the High Court in C.C.C.A. No. 74/77 allowed the appeal and granted a decree. The said Judgment and decree are not binding on them and that they cannot be evicted in execution of the said decree.
17. The learned Additional judge held that no injunction can be granted restraining the execution of the decree in O.S.No. 39/61 which is a lawful decree passed by a competent Court. In respect of 7 items of properties of the plaint schedule in H.No. 1-4-840-842 covering about 1548 sq. yards, injunction was granted. Aggrieved by the said order, the first respondent filed C.M.A. No. 306/87 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The learned Judge allowed the said appeal, holding that the petitioners cannot resist the execution of the decree as they are claiming only under Mohd. Abdullah Shariff, who was said to be the original tenant. He also held that the petitioners cannot claim better rights than the original tenant and his brothers against whom a decree was passed. However, the learned Judge, observed that the proper course would be to follow the procedure prescribed under Order 21, Rule 36 of Civil Procedure Code without resorting to injunction. In this view, he reversed the order of the trial Court. Aggrieved by the said order, the petitioners preferred the above Civil Revision.
18. We have allowed L.P.A.No. 160/85 which is filed against the decree and judgment in C.C.C. A. No. 74/ 77 holding that the CCC A filed by the plaintiff has abated since the legal representatives of the second respondent were not brought on record. In view of the said Judgment, there is no question of executing the decree in O.S.No. 31/69. Following the finding in L.P.A. No. 160/85, the Civil Revision Petition is allowed. No costs.