Rajasthan High Court - Jodhpur
Usman Gani And Ors vs Mukand Singh on 24 March, 2021
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Civil Second Appeal No. 55/2010 Usman Gani & Ors.
----Appellants Versus Mukand Singh & Ors.
----Respondents
For Appellant(s) : Mr. S.L. Jain.
Mr. Abhinav Jain.
For Respondent(s) : Mr. G.R. Goyal.
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA Order Date of Reserve : 02/03/2021 Date of Pronouncement : 24/03/2021 The instant second appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants, who were defendants in the suit, against the judgment and order dated 04.02.2010 passed by the Additional District Judge, Anoopgarh, District Sriganganagar in Civil Appeal No. 09/2005 titled as "Usman Ghani & Ors. Vs. Mukand Singh" by which, the appeal of the defendants-appellants has been dismissed and the judgment and decree dated 18.03.2006 passed by the Civil Judge (Senior Division), Anoopgarh in Civil Suit No. 11/1999 titled as "Mukand Singh Vs. Usman Ghani & Ors." by which, the learned Trial Court has decreed the suit for specific performance of the contract dated 14.08.1975 in favour of the plaintiff - Mukand Singh, has been affirmed.
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(2 of 16) [CSA-55/2010] During the pendency of the said appeal, the instant application under Order 22 Rule 9 of the Code of Civil Procedure was filed by the respondents on 25.09.2019 with the prayer that the application filed by the respondent/plaintiff under Order 22 Rule 9 CPC may kindly be allowed and the whole appeal may kindly be abated in view of this fact that the appeal against appellant No.2 Yahiya Khan has already been abated vide order dated 03.05.2017.
In support of the application filed under Order 22 Rule 9 CPC dated 25.09.2019, learned counsel for the respondents stated that the suit for specific performance of a contract was filed against five defendants (present appellants) jointly and the same was contested jointly and decree jointly against all the five defendants by the learned Trial Court vide judgment and decree dated 18.03.2005. Joint first appeal was filed by all the five defendants and the same was dismissed by the First Appellate Court vide judgment and decree dated 04.02.2010. Then, the present second appeal was filed by all the five appellants jointly. During the pendency of this appeal, appellant No.5 Muyasha @ Ayasha W/o late Ibrahim, i.e., the mother of the appellant Nos. 1 to 4, died on 29.06.2010. Without information of this fact, the present second appeal was admitted and substantial question of law was framed on 24.02.2011. In the year 2013, i.e., on 05.01.2013, the appellant No. 2 (Yahiya Khan S/o late Ibrahim) was also expired during the pendency of the appeal. Application for bringing the legal representatives of both the deceased appellants was filed in the year 2017. Before filing of that application, on 21.02.2017, (Downloaded on 25/03/2021 at 08:42:31 PM) (3 of 16) [CSA-55/2010] learned counsel Mr. Devendra Singh appearing for Mr. Vishal Singhal pleads no instructions on behalf of the appellants and, therefore, the appeal was dismissed for want of prosecution. The appeal was restored back to its original number on 03.03.2017 by allowing S.B. Civil Restoration Application No. 23/2017. Application under Order 22 Rule 3 & 9 of the Code of Civil Procedure was decided by this Court on 03.05.2017, after death of appellant Nos. 2 & 5. He further stated that initially the appeal was declared abated qua deceased appellant No. 2 and 5 on 03.05.2017 but subsequently, vide order dated 01.06.2017, the earlier order dated 03.05.2017 was modified and since the legal representatives of the deceased appellant No.5 were already on record, as appellants No. 1 to 4 and, therefore, the order dated 03.05.2017 abating this appeal qua appellant No. 5 was recalled and the order qua appellant No. 2 stands as it is. Lastly, learned counsel for the respondents urges that the application may kindly be allowed and the whole appeal may kindly be abated. In support of this contentions, learned counsel for the respondents has relied upon the following judgments:-
(1) Rendered in the case of State of Punjab Vs. Nathu Ram, reported in AIR 1962 SC P.89;
(2) Rendered in the case of Rameshwar Prasad & Ors. Vs. Shambehari Lal Jagannath & Anr., reported in AIR 1963 SC P.1901;
(3) Rendered in the case of Dwarka Prasad Singh & Ors. Vs. Harikant Prasad Singh & Ors., reported in AIR 1973 SC P.655;(Downloaded on 25/03/2021 at 08:42:31 PM)
(4 of 16) [CSA-55/2010] (4) Rendered in the case of Firdous Omer (D) by Lrs & Ors. Vs. Bankim Chandra Daw (D) by Lrs & Ors., reported in AIR 2006 SC P.2759; and (5) Rendered in the case of Hemareddi (D) Through Lrs. Vs. Ramachandra Yallappa Hosmani & Ors., reported AIR 2019 SC P.3297 (para-22).
On the contrary, learned counsel for the appellants stated that initially the agreement to sale was executed between Mukand Singh and Ibrahim. The suit for specific performance of a contract was filed on 31.05.1999 and before filing of the suit, Ibrahim was expired on 17.06.1995. Suit was not filed in the capacity of legal representatives of Ibrahim but was filed against all the defendants in individual capacity. Suit was decreed on 18.03.2005. All the appellants/defendants are the legal representatives of late Ibrahim, therefore, the provisions of Hindu Succession Act are not applicable in the present case and the shares of all the appellants are not equal. Lastly, he urges that the application filed by the respondents may kindly be dismissed with exemplary costs. Learned counsel for the appellants has relied upon the following judgments:-
(1) Rendered in the case of Kartar Singh Vs. Harjinder Singh & Ors., reported in AIR 1990 SC P.854;
(2) Rendered in the case of T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors., reported in 2017 (7) SCC P. 342;
(3) Rendered in the case of Ajay Bahadur Arora Vs. Smt. Rashmi Handa & Ors. by the Uttarakhand High Court at Nanital [Writ Petition (M/S) No. 3360/2017, reserved on 09.01.2018 and delivered on 13.03.2018].(Downloaded on 25/03/2021 at 08:42:31 PM)
(5 of 16) [CSA-55/2010] Heard learned counsel for the parties at great length on the application filed on behalf of the respondents under Order 22 Rule 9 of the Code of Civil Procedure. Perused the material available on record.
By this order, the application filed by the respondents under Order 22 Rule 9 of the Code of Civil Procedure, with the prayer that the appeal may kindly be declared to be abated as whole, is being decided.
Reply to the application by the learned counsel for the appellants on 07.09.2019.
On perusal of the record, this Court noticed that the present second appeal was admitted by this Court on 24.02.2011 and for ready reference, the entire order dated 24.02.2011 is reproduced here as under:-
"Heard the learned counsel for the parties and perused the record.
In the opinion on this Court, the following substantial questions of law do arise for consideration in this case:-
"1. Whether the decree for specific performance as passed in this case is vitiated for the learned subordinate Courts not considering and applying the principles of Section 20 of the Specific Relief Act, 1963 ?
2. Whether the issue of limitation has not been decided by the learned subordinate Courts in accordance with law ?"
Admit. Issue notice. The learned counsel Mr. D.S. Dev appears for the sole respondent-plaintiff. Service is, therefore, complete.
Heard on the prayer for interim relief.
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(6 of 16) [CSA-55/2010]
It is an admitted position that the
respondent-plaintiff is in possession of the suit property.
Having regard to the circumstances of the case and the nature of the decree passed, it is considered appropriate and hence ordered that the execution of sale deed pursuant to the impugned decree shall remain stayed during the pendency of the appeal but subject to the condition that the appellants shall furnish a security before the learned Trial Court for due performance of the decree, in case this appeal fails.
It is also considered appropriate and hence ordered that during the pendency of this appeal through the respondent-plaintiff may continue in possession of the land in question but shall not enter into any such transaction that may be alienation of the land in question or creating any encumbrance over the same.
The stay application stands disposed of accordingly."
Similarly, for ready reference, the order dated 03.05.2017 is reproduced here as under:-
"Heard learned counsel for both the sides on the application (APPLC No. 623/2017) filed under Order 22 Rule 3 & 9 read with section 151 CPC. On perusal of the application and the documents annexed, it is not in dispute that the appellant No.2 Yahiya Khan died on 05.01.2013 and appellant No.5 Muyasha @ Ayasha died on 29.06.2010 as per the death certificates annexed.
This application for impleading their legal representatives has been preferred on 07.03.2017 with a very inordinate delay. The reason assigned for the delay is that the counsel (Downloaded on 25/03/2021 at 08:42:31 PM) (7 of 16) [CSA-55/2010] for the appellants Mr. R.K. Singhal died in the year 2014 and the appellants were not aware of the proceedings pending before this court. The reason does not appear to be sufficient and convincing as death of Yahiya Khan took place on 5.1.2013 and that of Muyasha @ Ayasha on 29.06.2010 i.e. much prior to the said date of death of Mr. R.K. Singhal. The application for impleading legal heirs ought to have been filed even prior to his death in the year 2014. Explanation has also not been given as to how the applicants came to know now about the pending proceedings and hos this application came to be filed by them on 07.03.2017.
In view of above, this application for impleading legal representatives while condoning the delay does not deserves to be allowed. So far as deceased appellants Yahiya Khan and Muyasha @ Ayasha are concerned, the appeal stand abated qua them. However, it will survive on behalf of the other appellants, already on record.
List after three weeks."
It is pertinent to mention here that this Court, while dealing with an application preferred on behalf of the appellants, seeking recalling of the order dated 03.05.2017 whereby the appeal was abated qua appellant Nos. 2 and 5, passed the order dated 01.06.2017 and for ready reference, the same is reproduced here as under:-
"Heard learned counsel for the appellants on the application for recalling of the order dated 03.05.2017 whereby the appeal was abated qua appellant No. 2 & 5.
Learned counsel for the appellants submits that legal representatives of appellant No. 5 Muyasha were (Downloaded on 25/03/2021 at 08:42:31 PM) (8 of 16) [CSA-55/2010] already on record as appellants No. 1, 2 & 4. Out of them, Yahiaya Khan has also died.
In view of the fact that alive legal representatives of appellant No. 5 are already on record, the order abating appeal qua appellant No. 5 Muyasha is recalled. So far as abatement as regards appellant No.2 Yahiaya Khan is concerned, he is stated to have died and his legal representatives are not impleaded, hence, the order dated 03.05.2017 qua him stands as it is. The application is partly allowed and disposed of."
It is also relevant to mention here that the sole respondent was expired on 04.02.2019 and this Court had passed the following order dated 03.07.2019 and for ready reference, the same is reproduced here as under:-
"An application is filed on behalf of appellants for setting aside abatement of appeal against sole respondent and taking his legal heirs on record by invoking Order 22 Rule 4 as well as 9 CPC.
The application as such is not opposed by learned counsel for the legal heirs of the respondent as according to him information was divulged by him regarding death of sole respondent on 25.04.2019. However, learned counsel, Mr. Goyal submits that he has instructions on behalf of legal heirs of sole respondent to represent their cause. It is further submitted by Mr. Goyal that earlier the appeal was abated qua appellant No.2 as well as 5 but abatement against appellant No. 5 was set aside and qua appellant No.2 was kept intact.
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(9 of 16) [CSA-55/2010] In view thereof, the abatement of appeal qua sole respondent is set aside and his legal heirs are allowed to be taken on record.
Learned counsel for the appellant may file correct amended cause title showing abatement of appeal qua appellant No.2 within a week." After having given a thoughtful consideration to the submissions advanced on behalf of both the sides and having gone through the entire record of the case, including the judgments cited by both the sides, this Court finds that it is an admitted position that the agreement to sale the lands in question was executed between Mukand Singh (purchaser) and Ibrahim (seller); Ibrahim was expired on 17.06.1995 and the suit was filed thereafter on 31.05.1999 by the plaintiff - Mukand Singh. It is also an admitted position that the suit was not filed against the defendants in the capacity of legal representatives of late Ibrahim, on the contrary, the suit was filed against all the five defendants treating them co-owner of the property in question. The suit was allowed and decreed by the Trial Court and against that order, an appeal was preferred by all the five defendants (appellants herein) against the judgment and decree dated 18.03.2005; that appeal was also dismissed by the First Appellate Court vide judgment and decree dated 04.02.2010 and the present second appeal was also preferred on behalf of all the five defendants. Although, initially vide order dated 03.05.2017, the present second appeal was declared abated against deceased appellants No. 2 and 5, namely, Yahiya Khan and Muyasha @ Ayasha but vide order dated 01.06.2017, the order dated 03.05.2017 was recalled upto the (Downloaded on 25/03/2021 at 08:42:31 PM) (10 of 16) [CSA-55/2010] extent of Muyasha @ Ayasha on the ground that the legal representatives of deceased appellant Muyasha @ Ayasha are already on record. It is also an admitted position on the record of the case that no appeal was filed by the respondents against the order dated 01.06.2017 and even within the prescribed period of limitation, no review petitioner against the order dated 01.06.2017 was filed, therefore, the order dated 01.06.2017 attained finality. It is pertinent to mention here that the order dated 01.06.2017 was passed by this Court after hearing both the sides.
Principally, I am agree with the law laid-down by Hon'ble the Supreme Court in the judgments relied upon by the learned counsel for the respondents but on the facts and in the circumstances of the present case, the judgments are distinguishable and have no application to the case at hand.
So far as, the judgment rendered by Hon'ble the Supreme Court in the case of State of Punjab Vs. Nathu Ram (supra) is concerned, Hon'ble the Apex Court, while dealing with the matter on the aspect of abatement of appeal against other respondents, held as under:-
"4........... The Code does not provide for the abatement of the appeal against the other respondents.......... Suffice it to say that when O. 22 R.4 does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances is not a correct statement. Of course, the appeal against them (Downloaded on 25/03/2021 at 08:42:31 PM) (11 of 16) [CSA-55/2010] cannot proceed in certain circumstances and have therefore to be dismissed.............."
In the case of Rameshwar Prasad & Ors. Vs. Shambehari Lal Jaganbnath & Anr. (supra), while dealing with the matter as regards applicability of Rule 4 of Order 41, Holb'e the Supreme Court has held as under:-
"16............ the Appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XXII, R.4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far he is concerned under O. XXII, R.3........."
In the case of Dwarka Prasad Singh & Ors. Vs. Harikant Prasad Singh & Ors. (supra), while dealing with the matter as regards abatement of the appeal on the ground of death of one of the original appellants, namely, Abmica Prasad Singh and later on, upon expiry of original first party defendant, namely Saroda Charan Guha, who passed away during pendency of the appeal before Hon'ble the Apex Court, Hon'ble the Supreme Court has held as under:-
"7........ If the decree for specific performance is set aside that part of the decree will also have to go. It is not possible to understand how that can be done in the absence of the legal representatives of the deceased Guha. Moreover, the plaintiffs had claimed against Guha, in the alternative, a decree for substantial amount consisting of the part consideration paid and certain other amounts. If Guha had been alive or if his legal representatives (Downloaded on 25/03/2021 at 08:42:31 PM) (12 of 16) [CSA-55/2010] had been impleaded in time the Court could, while setting aside the decree for specific performance, grant the alternative prayer which was only made against Guha. This cannot be done now. In these circumstances, we are of the view that Order 41, Rule 4 of the Code of Civil Procedure cannot be of any avail to the appellants. The abatement of the appeal, so far as Guha was concerned, will prove fatal to the entire appeal as either inconsistent and contradictory decrees will have to be passed or proper reliefs cannot be granted in the absence of a necessary party against that party or his legal representatives."
In the case of Firdous Omer (D) by Lrs & Ors. Vs. Bankim Chandra Daw (D) by Lrs & Ors. (supra), Hon'ble the Supreme Court, while dealing with the matter in respect of tenant and landlord, has held as under:-
"13. Coming back to the case on hand, since we find that in case we were to allow this appeal and restore the suit, that will result in an order inconsistent with the order dismissing the suit as against S.M. Naqi, one of the legal representatives of the deceased original plaintiff, which has become final, we are unable to grant the appellants any relief. Thus, we decline to interfere with the decision of the High Court. We may also notice that the appellants have not acted bona fide in impleading the deceased co- plaintiff as a respondent in the Petition for Special Leave to Appeal as if he were alive and then seeking to bring on record his legal representatives in this Court."
In the case of Hemareddi (D) through Lrs. Vs. Ramachandra Yallappa Hosmani & Ors., (supra), while dealing with (Downloaded on 25/03/2021 at 08:42:31 PM) (13 of 16) [CSA-55/2010] the matter on the aspect of abatement of appeal, Hon'ble the Supreme Court has held as under:-
"30. ........ If otherwise, the decree is a joint and several or separable one, being in substance and reality a combination of many decrees, there can be no impediment for the proceedings being proceeded with among or against those remaining parties other than the deceased............"
"34. ......... ............ .............. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one."
In the case of T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. (supra), as relied upon by the learned counsel for the appellants, Hon'ble the Supreme Court, while dealing with the matter of property dispute, has held as under:-
"68........ Notion of joint family property is unknown to Muslim law, Co-heir does not act as agent while discharging debt but is an independent debtor not as co-debtor or joint debtor. Co-sharers are not defined as join contractors, partners, executors or mortgagees."
In the case of Ajay Bahadur Arora Vs. Smt. Rashmi Handa & Ors..(supra), the High Court of Uttarakhand at Nainital, while dealing with the matter of property dispute, has held as under:- (Downloaded on 25/03/2021 at 08:42:31 PM)
(14 of 16) [CSA-55/2010] "22........ ....... Invariably, in all the judgments, which have been relied by the learned counsel for the petitioner for the purposes of considering the applicability of the abatement of the proceedings in its totality, as a consequence of death of one of the defendants has to be considered by taking into consideration the following aspects:-
(i) The interest of a surviving party to the dispute whether it could be decided on merits without substituting the heirs of the other party;
(ii) As to whether the decree which is in the nature of a joint decree could be separated at the stage of execution;
(iii) Whether the deceased-defendant and his heirs are necessary party to the suit in whose absence the suit is bound to fail;
(iv) As to whether the plaintiff could not have brought the suit for necessary relief against those defendants alone who are still before the Court.
(v) The partial abatement of any suit or the proceedings would be dependent upon the facts of each case and there cannot be a straight jacketed formula for abating a suit in its totality.
(vi) The test, which is to be applied for the purpose of abating the suit in its totality, on the death of one of the defendant would depend upon as to whether there would be two contradictory decrees in an event of the suit being decreed.
(vii) The principle of complete abatement of the proceedings would also be dependent upon the (Downloaded on 25/03/2021 at 08:42:31 PM) (15 of 16) [CSA-55/2010] subject matter of the suit when it is indivisible. In such an eventuality, where the subject matter or the decree is indivisible, it may result into abatement of the proceedings as a whole, but the same would depend upon the facts of each case;
(viii) The principles of Order 22 Rule 4(4) would only be applicable in a situation, where there happens to be a specific claim raised separately in relation to the subject matter of the suit that means to say that a specific allegation in respect of the defendant with regard to the claim, right, title, or possession has been pleaded or not;
(ix) If the result is conflicting and contradictory decrees, only in that eventuality, the suit would abate as a whole."
As per the law laid down by Hon'ble the Supreme Court and the Uttarakhand High Court, it cannot be held that the appeal, in the present case, can be declared abated as a whole particularly when the order dated 01.06.2017 becomes final by virtue of attaining finality.
In an overall view of the matter, this Court is of the opinion that the application dated 25.09.2019 moved on behalf of the respondents under Order 22 Rule 9 of the Code of Civil Procedure, seeking abatement of the whole appeal, deserves rejection for the reason that this Court had already passed the orders, as quoted hereinabove, for abatement of the instant appeal only qua appellant No. 2 and the prayer for taking on record the legal representatives of the deceased appellant No.2 has already been declined by this Court vide order dated 03.05.2017, as quoted (Downloaded on 25/03/2021 at 08:42:31 PM) (16 of 16) [CSA-55/2010] hereinabove. In this view of the matter, the application in question is rejected and further, this Court is of the opinion that this appeal is required to be considered on merits, while treating the same to be abated only qua appellant No. 2.
Accordingly and in view of the above, the application filed under Order 22 Rule 9 of the Code of Civil Procedure, seeking abatement of the instant appeal as a whole, preferred on behalf of the respondents is rejected.
List the matter for hearing in the appropriate order of priority.
(DEVENDRA KACHHAWAHA),J 54-Mohan/-
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