Himachal Pradesh High Court
State Of H.P vs Hari Ram & Ors on 14 June, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.332 of 2004.
Judgment Reserved on: 23.05.2016.
.
Date of decision: 14.06.2016
State of H.P. ....Appellant-Defendant
Versus
Hari Ram & Ors. ..Respondents-Plaintiffs
of
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ? Yes.
rt
For the Appellant: Mr.Rupinder Singh Thakur,
Additional Advocate General.
For Respondents 1 to 3: Mr.K.D. Sood, Senior Advocate
with Mr.Rajnish K. Lall, Advocate.
For Respondents 4, 6 to 9: Mr.Neeraj Gupta, Advocate.
Sandeep Sharma,J.
This appeal has been filed by the appellant-
defendant No.5, against the judgment and decree dated 27.4.2004 passed by the learned District Judge, Bilaspur, District Bilaspur, H.P., whereby the applications, being CMP No.127 of 2004, under Order 1 Rule 10(2) and Order 22 Rule 4 CPC, for deletion of name of respondent No.6 Shri Bohru, who expired on 29.11.1998, and for bringing on record the legal representatives of respondent No.1 namely; Shri Ram Dass, who expired on 2.12.1998 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 2and CMP Nos.156 of 2004 & 128 of 2004 under Order 22 Rule 4 CPC for bringing on record the legal .
representativecs of proforma respondents No.7 and 8, namely; S/Shri Chandu and Lachhaman, who expired on 16.7.1996 and 13.4.2002 respectively, moved by appellant-defendant No.5, have been dismissed, as a of result of which appeal stood dismissed as having abated.
2. The brief facts emerge from the record are that the plaintiffs-respondents rt (hereinafter referred to as `plaintiffs'), filed a suit for declaration and permanent prohibitory injunction wherein it was pleaded that the suit land measuring 4-9 bighas comprised of Khewat No.9, Khatauni No.11, Khasra Nos.26,29,100,133 and 140, situated at village Kathpur, Pargana and Tehsil Sadar, District Bilaspur, H.P. was mortgaged with possession in favour of predecessor-in-interest of plaintiffs and defendants No.6 and 7 by the predecessors-in-
interest of defendants No. 1 to 4, regarding which mutation was attested. But neither predecessors-in-
interest of defendants nor defendants No.1 to 4 redeemed the suit land and took back possession from the plaintiffs within statutory period of limitation for redumption.
Since, said statutory period had expired, therefore, ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 3 plaintiffs pleaded that they have become owners in possession of the suit land. The plaintiffs further stated .
that defendant No.5 had no right title or interest over the suit land and revenue entries in favour of defendant No.5 in respect of suit land were specifically challenged.
Hence, the suit for permanent prohibitory injunction of against defendants.
3. Defendants Nos.1 to 4, by way of filing joint written statement wherein, took preliminary objections rt regarding maintainability of the suit, cause of action, estoppel, notice under section 80 CPC and jurisdiction of the Court. On merits, it is alleged by the defendants that in the year 2004 they returned the mortgage amount to the mortgagees i.e. plaintiffs and entered into possession of the suit land. It is alleged that since defendants redeemed the suit land from the plaintiffs on the same day, when plaintiffs redeedmed it from one Dhani Ram, therefore, the entries in the name of defendant No.5 were wrong. Consequently, defendants prayed for the dismissal of the suit.
4. Defendant No.5, by way of filing separate written statement, took preliminary objections regarding limitation, mis-joinder of necessary parties, notice under ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 4 Section 80 CPC, estoppel and locus standi. On merits, it is alleged that the plaintiffs had further mortgaged the .
suit land in favour of Shri Dhani Ram who died issueless.
Therefore, the suit land was inherited by State of H.P. and mutation thereof was attested in its favour and in subsequent revenue record the possession of State of H.P. of was rightly recorded. Consequently, defendant No.5 prayed for the dismissal of the suit.
5. Defendants No.6 and 7 also filed separate rt written statement wherein the preliminary objections already taken by the defendants No.1 to 4 were re-
asserted and further it was stated that in the year 2004 defendants No.1 to 4 had taken the possession of the suit land after redumption. Consequently, defendants No.s 6 and 7 prayed for the dismissal of the suit.
6. Replication was filed by the plaintiffs wherein averments already made in the plaint were reasserted.
7. The learned trial Court, on the basis of pleadings, settled inasmuch as 9 issues and except first fives issues, which were not pressed, decided all the issues in favour of the plaintiffs and accordingly decreed the suit of the plaintiffs. The appeal, preferred before the learned Appellate Court, was dismissed having abated.
::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 58. This second appeal was admitted on the following substantial question of law:
.
"(1) Whether the suit of the plaintiff was bad in law in the absence of necessary parties?
9. I have heard learned counsel appearing for the parties and have gone through the record of the case.
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10. In the present case, plaintiff had instituted a suit for possession on the ground that neither predecessors-in-interest of defendants nor defendants rt No.1 to 4 redeemed the suit land and took back possession from the plaintiffs within statutory period of limitation for redumption. Since said statutory period had expired, therefore, plaintiffs pleaded that they have become owners in possession of the suit land. Learned trial Court below decreed the suit of the plaintiffs and they were declared joint owners in possession of the suit land alongwith defendants No.6 and 7 and defendants No.1 to 4 were restrained by way of permanent prohibitory injunction not to interfere in possession of the plaintiff in any manner over the suit land.
11. Defendant-State of Himachal Pradesh feeling aggrieved and dissatisfied with the judgment and decree dated 6.1.1996 filed an appeal under Section 96 of the ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 6 Code of Civil Procedure (in short `CPC') against the judgment and decree dated 6.1.1996 passed by learned .
Sub Judge Ist Class, Bilaspur, in CS No.75/1 of 95/91 in the Court of District Judge, BIaspur by way of appeal No.15 of 1996.
12. Perusal of the impugned judgment as well as of documents available on record suggests that during the pendency of appeal No.15 of 1996, present appellant-
defendant No.5 moved one application bearing CMP rt No.127 of 2004 in CA No.15/1996, under Order 1 Rule 10(2) and Order 22 Rule 4 CPC, for deletion of name of respondent No.6 Bohru, who expired on 29.11.1998 and for bringing on record the legal representatives (in short `LRs') of respondent No.1, Ram Dass, who expired on 2.12.1998.
13. Apart from above, appellant-defendant No.5 filed another two applications being CMP Nos.156 of 2004 and 128 of 2004 in Civil Appeal No.15 of 1996 under Order 22 Rule 4 CPC for bringing on record the LRs of proforma respondents No.7 and 8, namely; S/Shri Chandu and Lachhaman, which were also taken up by the Court of learned District Judge, Bilasur alongwith main appeal for hearing on 27.4.2004.
::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 714. It emerges from bare reading of the impugned order dated 27.4.2004 passed by learned District Judge, .
Bilaspur that all the aforesaid applications filed by appellant-defendant No.5 were dismissed, as a result whereof appeal was abated, meaning thereby no findings on merits of the appeal were returned by the Court of of learned District Judge, Bilaspur and the judgment and decree passed by learned trial Court below attained finality. rt
15. By way of present appeal appellant-defendant No.5 assailed the impugned order dated 27.4.2004, whereby applications filed for deletion of name of respondent No.6 as well as for bringing on record LRs respondent No.1 and proforma respondents No.7 and 8 were also rejected. This Court, while admitting the present appeal for hearing, on the basis of pleadings, formulated substantial question of law that, "Whether the suit of the plaintiff was bad in law in the absence of necessary parties?".
16. Since the appeal has abated on account of failure on the part of the appellant-defendant No.5 to bring LRs of respondent No.1 and proforma respondents No.7 & 8 on record as well as substitution of respondent ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 8 No.6, namely; Bohru, who allegedly expired on 29.11.1998, it would be appropriate for this Court to .
examine whether applications filed by the appellants-
defendant No.5 for bringing on record LRs of respondent No.1 and proforma respondents No.7 and 8 as well as for deletion of name of respondent No.6 Bohru were rightly of decided by the first appellate Court or not?
17. Accordingly, this Court before adverting to the merit of the case would critically examine the evidence rt available on record to explore, whether the findings returned by the first appellate Court that the applications filed by the appellant-defendant No.5 for bringing on record the LRs of respondent No.1, proforma respondents No.7 and 8 and for deletion of respondent No.6 cannot be accepted at this belated stage, is correct or not, so that impact of not bringing the LRs of aforesaid deceased respondents is ascertained vis-à-vis the merit of the case is concerned.
18. Shri Rupinder Singh Thakur, learned Additional Advocate General, appearing for the appellant-
defendant No.5-State, vehemently argued that the judgment and decree passed by the first appellate Court is against the facts and law and as such the same deserves to be quashed and set aside. He forcefully contended that ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 9 the conclusion drawn by the first appellate Court cannot be accepted, in view of the evidence available on record.
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Rather, finding returned by the first appellate court, while rejecting the applications filed by the appellant-defendant No.5 for bringing on record the LRs of respondent No.1, proforma respondents No.7 and 8 as well as deletion of of the name of respondent No.6, is perverse and the same cannot be allowed to stand.
19. Mr.Thakur rt also contended that while dismissing the applications, referred hereinabove, first appellate Court has taken very hyper-technical view with regard to maintainability of the applications at the belated stage. He contended that there is ample evidence on record to suggest that the factum with regard to death of deceased respondents never came into the notice of the appellant and as such delay, if any, cannot be taken into consideration by first appellate Court while deciding the applications.
20. Mr.Thakur strenuously argued that the case law relied upon by first appellate court, while rejecting the applications, itself suggest that the same was not applicable in the present case because as per those judgments Hon'ble Apex Court has repeatedly held that ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 10 while dealing with the applications moved under Order 22 Rule 4 read with Rule 9 CPC, Courts are expected to .
adopt a liberal approach because parties gain nothing by not bringing on record the LRs of the deceased persons in any legal proceedings. Mr.Thakur, also invited the attention of this Court to the fact that respondent No.6 of had actually died on 29.11.1998 i.e. during the pendency of the suit before the trial Court and as such decree obtained by the plaintiffs against a dead person is a rt nullity and as such, that could not be upheld by the Court below. He stated that since respondent No.6 died during the pendency of the proceedings before the trial Court, proper course for first appellate Court was to set aside the decree and remand the case to the trial Court.
He also forcefully contended that the respondents No.1, 6, 7 and 8 were dead even before passing of the impugned order by the first appellate Court and as such rejection of the aforesaid applications moved by the appellant-
defendant No.5 by the first appellate Court being time barred is totally unsustainable in the eye of law. In the aforesaid background, Mr.Thakur strenuously argued that order passed by the learned first appellate Court deserves to be quashed and set aside. However, at this ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 11 stage, it is clarified that aforesaid contention put forth by Mr.Thakur that respondents No.1, 6, 7 and 8 died during .
the pendency of the suit appears to be incorrect especially after perusing the death certificates made available on record of the FAO No.205 of 2004, titled: Bardu & Another vs. Brij Lal & Others, where dates of death of of respondents No.1, 6, 7 and 8 have been shown as 2.12.1998, 29.11.1998, 10.7.1996 and 13.4.2002.
21. Per-contra Shri K.D. Sood, learned Senior rt Counsel, appearing for respondents No.1 to 3, supported the impugned order passed by the learned first appellate Court. It was forcefully contended on the part of the defendants that no interference of this Court whatsoever is called for in the present facts and circumstances of the case because impugned order has been passed on the basis of proper appreciation of the material evidence available on record. Mr.Sood forcefully contended that bare perusal of the pleadings as well as documents available on record itself demonstrate that applications filed by the appellant-defendant No.5 were time barred and no explanation worth the name was given in the applications explaining the delay and circumstances for not brining on record the LRs of deceased respondent ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 12 No.1, proforma respondents No.7 and 8. He also contended that even bare perusal of the applications .
moved by the appellant-defendant No.5 suggests that same have been filed under Order 22 Rule 4 but there is no specific mention with regard to Rule 9 of Order 22 of the CPC, meaning thereby that there is no specific prayer of for setting aside the abatement, if any. It is also brought to the notice of this Court by referring to the applications which are available on record that no independent rt application for condonation of delay, was ever filed by the appellant alongwith the applications moved for bringing on record LRs explaining therein cause/reason for condonation of delay in moving applications.
22. A specific objection with regard to maintainability of present appeal has been taken by Mr. Sood, learned Senior Counsel. He forcefully argued that the present RSA filed by State of Himachal Pradesh is/was not maintainable at all because order rejecting the applications for bringing on record the LRs of the deceased respondents, proforma respondents as well as deletion of name of respondent No.6 is an appealable order which was required to be assailed by way of FAO under Order 43 Rule 1(k) CPC. In the aforesaid ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 13 background prayer was made to dismiss the present appeal filed by the appellant-defendant No.5-State.
.
23. Since specific objection with regard to maintainability of present RSA has been taken by the defendants, this Court deems it proper to deal with the question of maintainability at first instance before of adverting to the merits and de-merits of the impugned order, which is the subject matter of the present case.
24. Admittedly, vide order dated 27.4.2004 Court rt of learned District Judge, Bilaspur, dismissed the applications moved by the present appellant-defendant No.5-State for bringing on record the LRs of respondent No.1, proforma respondents No.7 and 8 as well as deletion of name of respondent No.6 and it also remains fact that learned District Judge, Bilaspur, has not returned any finding on the merits of the case and in view of the dismissal of the applications, referred hereinabove, appeal stand automatically abated, meaning thereby that by way of order dated 27.4.2004 learned District Judge has decided the application filed by the appellant-defendant No.5 for brining on record the legal representatives of deceased respondent No.1, proforma respondents No.7 and 8 as well as deletion of name of one of the ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 14 defendants-respondents. As a consequent whereof appeal stood abated. At this stage, it would be apt to refer to .
the provisions of Order 43 Rule 1 CPC:
"O.43. 1. Appeal from orders.- An appeal shall be from the following orders under the provisions of section 104, namely:-
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a of suit."
It is ample clear from the perusal of the Order 43 Rule rt 1(k) CPC that any order refusing to set aside the abatement or dismissal of a suit under Order 22 Rule 9 is an appealable order and cannot be assailed by way of RSA under Section 100 CPC.
25. In the present case also where admittedly respondent No.1 and proforma respondents No.6, 7 and 8 had died during the pendency of the appeal and no steps whatsoever were taken well within stipulated time by the appellant-defendant No.5, as a result thereof, appeal pending before the learned District Judge, Bilaspur, had abated. During the pendency of the appeal, appellant-
State moved applications, as have been referred above, for bringing on record the LRs of respondent No.1 ,proforma respondents No.7 and 8 and for deletion of name of ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 15 respondent No.6, which were ultimately dismissed by the learned District Judge, BIlaspur vide impugned order.
.
Perusal of the applications referred above suggests that neither specific provisions i.e. under Order 22 Rule 4 read with Rule 9 have been mentioned nor any specific prayer in the applications with regard to setting aside abatement, of if any, has been made. Hence, it can be concluded that applications, referred above, were moved by the appellant-
State for bringing on record the LRs of deceased rt respondent No.1 and proforma respondents No.7 and 8 without any prayer of setting aside of the abatement, if any. Now, once the aforesaid applications were rejected by the first appellate Court, definitely appropriate remedy for the present appellant was to assail the impugned order dated 27.4.2004 by way of filing appeal in terms of Order 43 Rule 1(k) CPC. In this regard reliance is placed on the following judgments:
26. In Mangluram Dewangan vs. Surendra Singh and Others, (2011)12 SCC 773, the Hon'ble Supreme Court has held:-
"8. The following questions arise for consideration on the contentions urged :
(i) Whether an order of the trial court rejecting an application filed under ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 16 Order 22 Rule 3 of the Code, by a person claiming to be the legatee under the will of the plaintiff and consequently dismissing the suit in the absence of any legal heir, is an appealable decree?
.
(ii) Whether the High Court was justified in upholding the decision of the trial court that the will was not proved and rejecting the application under Order 22 Rule 3 of the Code?
Re : Question (i)
9. Order 22 deals with death of parties. Rules of 1, 3, 5 and 9 of order 22 of the Code have a bearing on the issue and relevant portions thereof are extracted below :
"1. No abatement by party's death if right to sue survives.- The death of a plaintiff or rt defendant shall not cause the suit to abate if the right to sue survives.
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.--(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
5. Determination of question as to legal representative.-Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:
* * *
9. Effect of abatement or dismissal.- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 17(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it .
is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit".
(emphasis supplied)
10. A combined reading of the several provisions of Order 22 of the Code makes the following position clear:
of
(a) When the sole plaintiff dies and the right to sue survives, on an application made in that behalf, the court shall cause the legal representative of the deceased rt plaintiff to be brought on record and proceed with the suit.
(b) If the court holds that the right to sue does not survive on the death of the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code.
(c) Even where the right to sue survives, if no application is made for making the legal representative a party to the suit, within the time limited by law (that is a period of 90 days from the date of death of the plaintiff prescribed for making an application to make the legal representative a party under Article 120 of the Limitation Act, 1963), the suit abates, as per Rule 3(2) of Order 22 of the Code.
(d) Abatement occurs as a legal consequence of (i) court holding that the right to sue does not survive; or (ii) no application being made by any legal representative of the deceased plaintiff to come on record and continue the suit. Abatement is not dependant upon any formal order of the court that the suit has abated.
(e) Even though a formal order declaring the abatement is not necessary when the suit abates, as the proceedings in the suit are likely to linger and will not be closed without a formal order of the court, the court is usually to make an order recording that the suit has abated, or ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 18 dismiss the suit by reason of abatement under Order 22 of the Code.
(f) Where a suit abates or where the suit is dismissed, any person claiming to be the .
legal representative of the deceased plaintiff may apply for setting aside the abatement or dismissal of the suit under Order 22 Rule 9 (2) of the Code. If sufficient cause is shown, the court will set aside the abatement or dismissal. If however such application is dismissed, the order dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code.
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(g) A person claiming to be the legal
representative cannot make an
application under rule 9(2) of order 22 for setting aside the abatement or dismissal, if he had already applied under order 22 rt Rule 3 for being brought on record within time and his application had been dismissed after an enquiry under Rule 5 of Order 22, on the ground that he is not the legal representative.
11. We may next consider the remedies available to an applicant whose application under Order 22 Rule 3 of the Code, for being added as a party to the suit as legal representative of the deceased plaintiff, has been rejected. The normal remedies available under the Code whenever a civil court makes an order under the Code are as under:
(i) Where the order is a `decree' as defined under section 2(2) of the Code, an appeal would lie under section 96 of the Code (with a provision for a second appeal under section 100 of the Code).
(ii) When the order is not a `decree', but is an order which is one among those enumerated in section 104 or Rule 1 of Order 43, an appeal would lie under section 104 or under section 104 read with order 43, Rule 1 of the Code (without any provision for a second appeal).
(iii) If the order is neither a `decree', nor an appealable `order' enumerated in section 104 or Order 43 Rule 1, a revision would lie under section 115 of the Code, if it satisfies the requirements of that section.::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 19
12. When a party is aggrieved by any decree or order, he can also seek review as provided in Section 114 subject to fulfillment of the conditions contained in that section and Order 47 Rule 1 of the .
Code. Be that as it may. The difference between a `decree' appealable under section 96 and an `order' appealable under section 104 is that a second appeal is available in respect of decrees in first appeals under section 96, whereas no further appeal lies from an order in an appeal under section 104 and Order 43, Rule 1 of the Code. The question for consideration in this case is whether the order dated 31.8.1996 of the of trial court dismissing an application under Order 22 Rule 3 and consequently dismissing the suit is an order amenable to the remedy of appeal or revision. If the remedy is by way of appeal, the incidental rt question would be whether it is under section 96, or under section 104 read with Order 43, Rule 1 of the Code.
13. Section 96 of the Code provides that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such court. The word `decree' is defined under section 2(2) of the Code thus:
"2. (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 20 disposes of the suit. It may be partly preliminary and partly final;"
14. A reading of the definition of decree in Section 2(2) shows that the following essential .
requirements should be fulfilled if an order should be treated as a `decree' :
(i) there should be an adjudication in a suit;
(ii) the adjudication should result in a formal expression which is conclusive so far as the court expressing it;
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(iii) the adjudication should determine the rights of parties with regard to all or any of the matters in controversy in the suit; and rt (iv) the adjudication should be one from which an appeal does not lie as an appeal from an order (under section 104 and order 43 Rule 1 of the Code) nor should it be an order dismissing the suit for default.
(emphasis supplied) (pp.777-780)
27. In Madan Naik (dead by LRs) and Others vs. Mst.Hansubala Devi and Others, AIR 1983 SC 676, the Hon'ble Supreme Court held:
"8. Section 2 sub-sec.(2) of the Civil P.C. defines `decree' to mean "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 21 within Sec.144 but shall not include any adjudication from which an appeal lies as an appeal from an order". When an appeal .
abates for want of substitution as envisaged by sub-rule (1) of R.9 of O.22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits, Sec. 11 of C.P.C. would be attracted. Abatement of an appeal does not imply of adjudication on merits and hence a specific provision had to be made in Order 22 Rule 9(1) that no fresh suit could be brought on rt the same cause of action. Therefore, when the appeal abated there was no decree, disposing of the first appeal, only course open is to move the court for setting aside abatement. An order under Order 22, Rule 9(2) C.P.C. refusing to set aside abatement is specifically appealable under Order 43, Rule 1k). Such a adjudication if it can be so styled would not be a decree as defined in Sec.2(2) C.P.C. Sec.100 provides for second appeal to the High Court from every decree passed in appeal by any Curt subordinate to the High Court on the grounds therein set out. What is worthy of notice is that second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent."
(pp.679-680) ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 22
28. In view of the facts and circumstances, narrated hereinabove, it can be safely concluded that .
present appeal is not maintainable in the present form and the same deserves to be dismissed solely on this ground. However, with a view to answer the substantial question of law framed at the time of admission, which of has been reproduced hereinabove, this Court also examined the evidence available on record which persuaded rtthe first appellate Court to reject the applications filed by the appellant-State. There is no doubt that appeal, if any, could not be decided by the Courts below in the absence of LRs of respondent No.1 as well as proforma respondents No.6, 7 and 8 as all of them were necessary parties for the adjudication of the dispute.
But fact remains, as emerges from the record that appellant-defendant No.5 remained quite negligent and callous while taking steps for bringing on record LRs of aforesaid deceased respondents. Since respondent No.1 and proforma respondents No.7 and 8 had died during the pendency of the present appeal before the first appellate Court, it was incumbent upon the appellant therein to move an application for bringing on record LRs ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 23 of deceased respondents well within stipulated time, but in the present case, there is overwhelming evidence to .
suggest that no steps whatsoever, were taken for years together.
29. In the present case, respondent No.6 had expired on 29.11.1998, whereas respondents No.1, 7 and of 8 expired on 2.12.1998, 10.7.1996 and 13.4.2002 respectively. Applications for bringing on record LRs of aforesaid respondents and deletion of name of respondent rt No.6 were moved in the year 2004 i.e. after a lapse of 8, 6, 2 years respectively, as emerges from the record.
Moreover, during proceedings of the case, this Court had an occasion to peruse the evidence adduced by the parties for just and proper decision of the applications moved by the appellant-State for bringing on record LRs of deceased respondents and for deletion of name of respondent No.6.
30. In the present case, record suggests that appellant-defendant No.5 led no evidence, whatsoever in support of contentions raised in the applications. It appears that learned first appellate Court on 7.5.2002 framed specific issues for deciding these applications but appellant-defendant No.5 did not lead any evidence to prove the contents of these applications. However, ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 24 respondents tendered documentary evidence Exs.R-1 to R-4 to prove their case. It also emerges from the record .
that the appellant-defendant No.5 while moving the aforesaid applications under reference for bringing on record the LRs even did not move an application under Section 5 of the Limitation Act explaining therein the of delay in filing the application under Order 22 Rule 4.
Since there was substantial delay in filing the application, it was incumbent upon the appellant-defendant to move rt an application under Section 5 of the Limitation Act specifically detailing therein the reasons for delay in moving the application for bringing on record the LRs of deceased respondents. Moreover, none of the appellants was examined to prove the contents of the applications or otherwise, who could come in witness box and state that there was sufficient cause which prevented the appellant-
State from filing the applications well in time. But, as is observed earlier also, no witness of the appellant had appeared in the witness box to state and explain the circumstances which prevented the appellant from filing the applications well within time. In the present case, where the deceased respondents died long back in the years 1996, 1998 and 2002 respectively and applications ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 25 were filed in the year 2004, delay, if any, certainly could not be condoned by the Courts below without there being .
any application under Section 5 of the Limitation Act.
31. In Lanka Venkateswarlu (Dead) By LRs vs. State of Andhra Pradesh and Others, (2011)4 SCC 363, the Hon'ble Supreme Court held:-
of "19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally rt speaking, including the this courts Court, in adopt this a country, liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector (L.A.) v. Katiji , (1987)2 SCC 107.
23. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh, (2010)8 SCC 685, as follows:
(SCC p.696, paras 25-26) "25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation.::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 26
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the .
facts and circumstances of a given case.
Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be of done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other rt party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.
::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 2729. The use of unduly strong intemperate or extravagant language in a judgment has .
been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to of be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed rt by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.
(pp.370-373)
32. True, it is, as held by the Hon'ble Apex Court that the Court should be liberal in condoning the delay in such like matters but as has been observed above, there is no iota of evidence available on record to suggest that any explanation worth name was ever offered by appellant-defendant No.5 to explain the delay. Especially in case like present one where there was delay of more than 8, 6 and 2 years, applicants are/were expected to move separate application for condonation of delay explaining therein the reasons which could be sufficient to condone the delay. What to talk about the separate ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 28 application under Section 5 of the Limitation Act which should have been moved by the appellant, there is no .
whisper with regard to reasons for delay in the so called composite applications preferred by the applicants under Order 22 Rule 4 CPC for bringing on record the LRs of deceased respondents.
of
33. Apart from this, one more glaring discrepancy which has been noticed by this Court is that in the aforesaid application there is no mention with regard to rt the provisions of Rule 9 of Order 22 CPC, which specifically talks about setting aside the abatement, if any. Hence, any application moved under Order 22 Rule 4 CPC without there being mention of Rule 9 and specifically not praying therein for setting aside abatement cannot be held maintainable at all and abatement, which had occurred long time back prior to filing of the applications, could not be set aside by the Court. The learned first appellate Court while rejecting the applications, referred hereinabove, has rightly relied upon the judgments passed by this Court as well as Hon'ble Apex Court, perusal whereof itself suggests that Court can certainly set aside the abatement or can pass order for bringing on record the LRs of the deceased ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 29 persons after prescribed period of limitation, if it is proved that the party was prevented by any sufficient cause and .
onus to prove the absence of equity, lack and negligence definitely lies on the applicant. It has also been held in the aforesaid judgment that the application cannot be allowed or dismissed by taking recourse to discretionary of powers because under Article 121 of the Act an application to set aside abatement has to be filed within a specific period of 60 days from the date of abatement.
rt Though, Court has discretion to allow applicant to file application under Order 22 Rule 9 but only in that circumstance where applicant has satisfied that he or she was prevented and had sufficient cause of not making the application within said period. But in the present case, as has been discussed in detail, the applicant at the first instance did not move application under Order 22 Rule 4 CPC in time and moreover no application under Section 5 of the Limitation Act for condonation of delay, if any, was moved alongwith application for bringing on record LRs of the deceased respondents. Even no evidence worth name was led in support of the contents/averments of the application. Hence, this Court does not see any infirmity and illegality in the order passed by learned first appellate ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 30 Court inasmuch as it has returned finding that the application is hopelessly time barred and cannot be .
accepted at this belated stage. (See: Balwant Singh (Dead) vs. Jagdish Singh and others, (2010)8 SCC 685; Katari Suryanarayana and Others vs. Koppisetti Subba Rao and Others, (2009)11 SCC 183; Ram Nath of Sao alias Ram Nath Sahu and Others vs. Gobardhan Sao and Others, (2002)3 SCC 195; Badni (Dead) By LRs and Others vs. Siri Chand (Dead) by LRs and rt Others, (1999)2 SCC 448; M.Veerappa vs. Evelyn Sequeira and Others, (1988)1 SCC 556; Daya Ram and others vs. Shyam Sundari and others, AIR 1965 SC 1049 and Union of India vs. Ram Charan (Deceased) through his Legal Representatives, AIR 1964 SC 215.).
34. In Budh Ram and Others vs. Bansi and Others, (2010)11 SCC 476, it has been held:
"10. Abatement takes place automatically by application of law without any order of the court. Setting aside of abatement can be sought once the suit stands abated. Abatement in fact results in denial to hearing of the case on merits. Order XXII Rule 1 CPC deals with the question of abatement on the death of the plaintiff or of the defendant in a Civil Suit. Order XXII ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 31 Rule 2 relates to procedure where one of the several plaintiffs or the defendants die and the right to sue survives. Order XXII Rule 3 .
CPC deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order XXII Rule 4 CPC, however, deals with procedure in case of death of one of the several defendants or of the sole defendants. Sub-clause (3) of Rule 4 makes it crystal clear that:
of "4.(3) Where within the time limited by law, no application is made under sub-
Rule 1, the suit shall abate as against the rt deceased defendant."
(emphasis supplied)
17. Therefore, the law on the issue stands crystallised to the effect that as to whether non-substitution of LRs of the respondents- defendants would abate the appeal in toto or only qua the deceased respondents- defendants, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-
dependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 32 proceedings vis-a-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the .
relevant test.
18. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject matter, each has a right irrespective of the quantity rt of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place.
19. In the instant case a declaratory decree was passed in favour of respondents-
plaintiffs and Smt. Parwatu to the effect that they were co-owners, though, they had specific shares but were held entitled to be in "joint possession". The appellants- applicants had sought relief against Smt. Parwatu before the 1st Appellate court as there was a decree in her favour, passed by the Trial Court where Smt. Parwatu had been impleaded by the appellants-applicants as proforma respondent. In such a fact- situation, she had a right to contest the appeal. Once a decree had been passed in ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 33 her favour, a right had vested in her favour. On her death on 19.11.2000, the said vested right devolved upon her heirs. Thus, appeal .
against Smt. Parwatu stood abated. In the instant case, the 1st Appellate Court rejected the application for condonation of delay as well as the substitution of LRs of Smt. Parwatu, respondent No. 4 therein.
20. The only question remains as to of whether the appeal is abated in toto or only in respect of the share of Smt. Parwatu. The High Court has rightly reached the conclusion that there was a possibility for rt the Appellate Court to reverse the Judgment of the Trial Court and in such an eventuality, there could have been two contradictory decrees, one in favour of Smt. Parwatu and the other, in favour of the present appellants. The view taken by the High Court is in consonance with the law laid down by this Court consistently. The facts of the case do not warrant any further examination of the matter."
(pp.479, 482-483)
35. However, at this stage, this Court intends to differ with the findings returned by the first appellate Court, wherein, while dismissing the applications moved by the appellant-defendant No.5 for bringing on record the LRs of respondent No.1, proforma respondents No.7 and 8 and for deletion of the name of respondent No.6, on the ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 34 ground of limitation, learned Court below also took into consideration the fact that at the time of death of .
respondent No.6, he was succeeded by the LRs on the basis of his Will. Learned Court below concluded that the perusal of Ex.R-2, copy of mutation, shows that the same was attested on 23.12.1998, hence it cannot be said that of since respondent No.6 has not left behind any legal heirs, his name is liable to be deleted, rather, his LRs are liable to be brought on record on the basis of Will. Similarly, in rt the case of respondent No.1, namlely; Ram Dass, Court below returned the finding that names of his son and other legal representatives were mentioned in para-7 of the application, whereas, mutation in regard to his death was attested only in favour of two persons namely; Hari Ram and Brij Lal on the basis of a Will and as such persons named in para-7 of the application cannot be said to be his legal heirs.
36. Similarly, first appellate Court below while deciding the application for bringing on record the LRs of respondent No.4 observed that contention put forth in para-4 of the application that he is survived by his widow and sons/daughters cannot be accepted since mutation is accepted in the names of three sons only.
::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 3537. The aforesaid findings of the first appellate Court cannot be accepted at all because after death of any .
of the party to lis, his/their legal representatives being natural heirs have an absolute right to be substituted/impleaded as a party in the pending case and their rights being LRs cannot be allowed to be taken away of by any person who may have got some rights by way of will, if any, executed by the deceased person.
38. rtThis Court has no hesitation to conclude that aforesaid findings/observations of the first appellate Court are totally against the spirit of principles of sufficient representation of estate. Once application is moved for bringing on record the LRs of deceased party, Court is bound to implead him/her as a party plaintiff/respondent subject to fulfillment of other conditions prescribed for bringing on record the LRs of deceased party.
39. But in the present case, where this Court, in view of the detailed discussion made hereinabove, has come to the conclusion that the applications filed by the appellant-defendant No.5 have been rightly dismissed by the Court below being hopelessly time barred, this Court is restraining itself from making any observations and ::: Downloaded on - 15/04/2017 20:35:00 :::HCHP 36 findings on the merits/demerits of other reasons cited/given by Court below for dismissing applications.
.
Apart from the above, in view of the specific provisions laid down by Order 43 Rule 1(k) CPC as well as law discussed hereinabove, this Court is of the view that present appeal is not maintainable in the present form of and the same deserves to be quashed and set aside.
40. In the totality of the facts and circumstances of the case, the impugned order passed by the first rt appellate Court is upheld and the present appeal is dismissed.
41. Interim order, if any, is vacated. All miscellaneous applications are disposed of.
June 14, 2016. (Sandeep Sharma)
(aks) Judge.
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