Himachal Pradesh High Court
Bardu & Another vs Brij Lal & Others ... on 21 June, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
FAO No.205 of 2004
Judgment Reserved on: 23.05.2016
Date of decision: 21.06.2016
Bardu & Another ....Defendants-Appellants
of
Versus
Brij Lal & Others ....Plaintiffs-Respondents
Coram
rt
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Appellants: Mr.Neeraj Gupta, Advocate.
For Respondents No.1 & 2:Mr.K.D. Sood, Senior Advocate
with Mr.Rajnish K.Lall,
Advocate.
For Respondent No.10: Mr.Rupinder Singh Thakur,
Additional Advocate General
Sandeep Sharma,J.
This appeal has been filed by the appellant-
defendants No.1,3 & 5, (for short appellants-defendants) against the judgment and decree dated 27.4.2004 passed 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 2by the learned District Judge, Bilaspur, District Bilaspur, H.P., whereby the applications, one being CMP No.125 of .
2004 under Order 1 Rule 10(2) and Order 22 Rule 4 CPC, for deletion of name of appellant No.3 Bohru, who expired on 29.11.1998, for bringing on record Legal Representatives of respondent No.1 Ram Dass, who expired of on 2.12.1998 and Chandu, proforma respondent No.4, who expired on 10.7.1996, and second being CMP Nos.126 of 2004 under Order 22 Rule 4 CPC for bringing on record the rt legal representatives of proforma respondents No.5, namely; Shri Lachhaman, who expired on 13.4.2002, moved by appellants-defendants have been dismissed, as a result of which appeal stood dismissed as having abated.
2. The brief facts emerge from the record are that the plaintiffs-respondents (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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 3 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 of statutory period had expired, therefore, plaintiffs pleaded that they have become owners in possession of the suit land. The plaintiffs further stated that defendant No.5 had rt 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 against defendants.
3. Defendants Nos.1 to 4, by way of filing joint written statement wherein, took preliminary objections 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 4 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 of limitation, mis-joinder of necessary parties, notice under Section 80 CPC, estoppel and locus standi. On merits, it is alleged that the plaintiffs had further mortgaged the suit rt 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. was rightly recorded. Consequently, defendant No.5 prayed for the dismissal of the suit.
5. Defendants No.6 and 7 also filed separate 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.
::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 56. 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 of the plaintiffs. The appeal, preferred before the learned Appellate Court, was dismissed having abated.
8. I have heard learned counsel appearing for the rt parties and have gone through the record of the case.
9. In the present case, plaintiff had instituted a suit for possession on the ground that 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, 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 6 to interfere in possession of the plaintiff in any manner over the suit land.
.
10. Present appellants-defendants, feeling aggrieved and dissatisfied with the judgment and decree dated 6.1.1996, filed appeals, under Section 96 of the Code of Civil Procedure (for short `CPC') against the judgment and of 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, BiIaspur, bearing Nos.10 of 1996 and 15 of rt 1996, respectively.
11. Perusal of the impugned judgment as well as documents available on record suggests that during the pendency of appeal No.10 of 1996, present appellants-
defendants moved one application bearing CMP No.125 of 2004 in CA No.10/1996, under Order 1 Rule 10(2) and Order 22 Rule 4 CPC, for deletion of name of appellant No.3 Bohru, who expired on 29.11.1998 and for bringing on record the LRs of respondents No.1 and 4; namely; Ram Dass, and Chandu, who expired on 2.12.1998 and 10.7.1996 respectively.
12. Apart from above, appellants-defendants filed another application being CMP Nos.126 of 2004 in Civil ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 7 Appeal No.10 of 1996 under Order 22 Rule 4 CPC for bringing on record the legal representatives (in short `LRs') .
of proforma respondent No.5 Lachhaman, which were also taken up by the Court of learned District Judge, Bilasur alongwith main appeal for hearing on 27.4.2004.
13. It emerges from bare reading of the impugned of order dated 27.4.2004 passed by learned District Judge, Bilaspur that all the aforesaid applications filed by the present appellants were dismissed, as a result whereof rt appeal stood abated, meaning thereby no findings on merits of the appeal were returned by the Court of learned District Judge, Bilaspur and the judgment and decree passed by learned trial Court below attained finality.
14. Feeling aggrieved and dis-satisfied with the impugned order dated 27.4.2004, passed by learned District Judge, Bilaspur, present appellants filed instant First Appeal under Order 43 Rule 1(k) CPC before this Court.
15. It may be noticed here that defendant No.5- State of Himachal Pradesh, whose applications for bringing on record the LRs of respondents No.1, 7 and 8 and for deletion of name of respondent No.6 were also dismissed by ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 8 first appellate Court in Civil Appeal No.15 of 1996, also filed RSA bearing No.332 of 2004, before this Court. This .
Court vide judgment dated 14.6.2016 has already dismissed appeal being not maintainable.
16. Since the appeal filed by present appellants has abated on account of failure on the part of the appellants-
of defendants to bring LRs of respondents No.1, 4 and 5 on record as well as deletion of name of appellant No.3, namely; Bohru, who allegedly expired on 29.11.1998, it rt would be appropriate for this Court to examine whether applications filed by the appellants-defendant for bringing on record LRs of respondents No.1,4 and 5 as well for deletion of name of appellant No.3 Bohru were rightly 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 available on record to explore, whether the findings returned by the first appellate Court that the applications filed by the appellants-defendants for bringing on record the LRs of respondent No.5 and for deletion of appellant No.3 cannot be accepted at this belated stage is correct or not, so that impact of not bringing the LRs of aforesaid ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 9 deceased respondents is ascertained vis-à-vis the merit of the case is concerned.
.
18. Shri Neeraj Gupta, learned counsel, appearing for the appellants-defendants, 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 of be quashed and set aside. He forcefully contended that the conclusion drawn by the first appellate Court cannot be accepted, in view of the evidence available on record.
rt Rather, finding returned by the first appellate court, while rejecting the applications filed by the appellants-
defendants for bringing on record the LRs of respondents No.1,4 and 5 as well as deletion of the name of appellant No.3, is perverse and the same cannot be allowed to stand.
19. Mr.Neeraj Gupta 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, could not be taken into ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 10 consideration by first appellate Court while deciding the applications. He has forcefully contended that the findings .
returned by the first appellate Court, while rejecting the applications, are totally unreasonable and same shows the non-application of mind. It is contended that learned Judge below has failed to consider the principles of of sufficient representation of the estate. He submitted that mere bequeathing of property by way of will by deceased in favour of some other person cannot be a ground to reject rt the application for bringing on record the LRs of the deceased.
20. Mr.Gupta 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 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. In the aforesaid background, Mr.Gupta ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 11 strenuously argued that order passed by the learned first appellate Court deserves to be quashed and set aside.
.
21. Per-contra Shri K.D. Sood, learned Senior Counsel, appearing for respondents No.1 and 2, supported the impugned order passed by the learned first appellate Court. It was forcefully contended on the part of the of 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 rt 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 appellants-defendants was 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 respondents No.1, 4 and 5. He also contended that even bare perusal of the applications moved by the appellants-defendants suggests that same have been filed under Order 22 Rule 4 but there is no specific mention with regard to Rule 9 of the CPC, meaning thereby that there is no specific prayer for setting aside the ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 12 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 application for condonation of delay, was ever filed by the appellant alongwith the applications moved for bringing on record LRs explaining therein cause for condonation of delay in moving of applications.
22. Admittedly, vide order dated 27.4.2004 Court of 2learned District rt Judge, Bilaspur, dismissed the applications moved by the present appellants-defendants for bringing on record the LRs of respondents No.1, 4 and 5 as well as deletion of name of appellant No.3 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 appellants-defendants for brining on record the legal representatives of deceased respondents No.1, 4 and 5 as well as deletion of name of one of appellant No.3. As a consequent whereof appeal stood abated.
::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 1323. In the present case also where admittedly respondents No.1, 4 and 5 died during the pendency of the .
appeal and no steps whatsoever were taken well within stipulated time by the appellants-defendants, as a result thereof, appeal pending before the learned District Judge, Bilaspur, abated. During the pendency of the appeal, of appellants-defendants moved applications, as have been referred above, for bringing on record the LRs of respondents No.1, 4 and 5 and for deletion of name of rt appellant No.3, 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, 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 respondents No.1, 4 and 5 without any prayer of setting aside of the abatement, if any.
::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 1424. 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 of 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 rt determination of any question 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 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 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 15 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 of decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent."
rt (pp.679-680)
25. With a view to ascertain the correctness of the impugned order, this Court examined the evidence available on record, which persuaded the 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 respondents No.1, 4 and 5 as all of them were necessary parties for the adjudication of the dispute. But fact remains, as emerges from the record that appellants-defendants remained quite negligent and callous while taking steps for bringing on record LRs of aforesaid deceased respondent. Since respondents No.1, 4 and 5 had died during the pendency of ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 16 the present appeal before the first appellate Court, it was incumbent upon the appellant therein to move an .
application for bringing on record LRs 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.
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26. In the present case, respondent No.1 had expired on 2.12.1998, whereas respondents No.4 and 5 expired onrt 10.7.1996 and 13.4.2002, respectively.
Applications for bringing on record LRS of aforesaid respondents and deletion of name of appellant No.3 were moved in the year 2004 i.e. after a lapse of 6, 8 and 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 appellant No.3.
27. In the present case, record suggests that appellants-defendants led no evidence, whatsoever in support of contentions raised in the applications. It appears that learned first appellate Court on 7.5.2002 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 17 framed specific issues for deciding these applications but appellants-defendants did not lead any evidence to prove .
the contents of these applications. However, respondents tendered documentary evidence Exts.R-1 to R-4 to prove their case. It also emerges from the record that the appellants-defendants while moving the aforesaid of 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 delay in filing the rt application under Order 22 Rule 4. Since there was substantial delay in filing the application, it was incumbent upon the appellant-defendant to move 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 18 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 were filed in the year 2004, delay, if any, certainly could not be condoned by the Courts below without there being any application under of Section 5 of the Limitation Act.
28. In Lanka Venkateswarlu (Dead) By LRs vs. State of Andhra Pradesh and Others, (2011)4 SCC rt 363, the Hon'ble Supreme Court held:-
"19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a 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) ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 19
"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.
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 of 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 rt 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 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 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, ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 20 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.
29. 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 of applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled rt discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.
(pp.370-373)
29. 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 appellants-
defendants to explain the delay. Especially in case like present one where there was delay of more than 8, 6 and 2 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 21 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 application under Section 5 of the Limitation Act which should have been moved by the appellant, there is no whisper with regard to reasons of 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.
rt
30. 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 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 22 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 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 of 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 powers rt 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. 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 23 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 Court inasmuch as it has returned finding that the application is hopelessly time barred and cannot be accepted at this of belated stage. (See: Balwant Singh (Dead) vs. Jagdish Singh and others, (2010)8 SCC 685; Katari Suryanarayana and Others vs. Koppisetti Subba Rao rt and Others, (2009)11 SCC 183; Ram Nath 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 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.).
31. 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 24 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 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 of several plaintiffs or of the sole plaintiff. Order XXII Rule 4 CPC, however, deals with procedure in case of death of one of the rt several defendants or of the sole defendants. Sub-clause (3) of Rule 4 makes it crystal clear that:
"4.(3) Where within the time limited by law, no application is made under sub-Rule 1, the suit shall abate as against the 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 25 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 proceedings vis-a-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.
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18. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right rt to possession and enjoyment of each and every part of the property equal to that 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 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 ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 26 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 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. of Parwatu stood abated. In the instant case, the 1st Appellate Court rejected the application for condonation of delay as well rt as the substitution of LRs of Smt. Parwatu, respondent No. 4 therein.
20. The only question remains as to 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 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) ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 27
31. 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 appellants-defendants for bringing on record the LRs of respondents No.1,4 and 5 and for deletion of the name of appellant No.3, on the ground of limitation, learned Court of below also took into consideration the fact that at the time of death of appellant No.3, he was succeeded by the LRs on the basis of his Will. Learned Court below concluded that rt the perusal of Ex.R-2, copy of mutation, shows that the same was attested on 21.12.1998, hence it cannot be said that since appellant No.3 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 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-5 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-5 of the application cannot be said to be his legal heirs. Similarly, first appellate Court ::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 28 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.
32. The aforesaid findings of the first appellate of Court cannot be accepted at all because after death of any of the party to lis, his/their legal representatives being natural heirs rt 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 by any person who may have got some rights by way of will, if any, executed by the deceased person. This 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.
::: Downloaded on - 15/04/2017 20:37:36 :::HCHP 2933. 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 appellants-defendants have been rightly dismissed by the Court below being hopelessly time barred, this Court is restraining itself from making any observations and of findings on the merits/demerits of other reasons cited/given by Court below for dismissing the application.
34. In the totality of the facts and circumstances of rt the case, the impugned order passed by the first appellate Court is upheld and the present appeal is dismissed.
35. Interim order, if any, is vacated. All miscellaneous applications are disposed of.
June 21, 2016. (Sandeep Sharma)
(aks) Judge.
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