Andhra HC (Pre-Telangana)
Golla Krishna Murthy vs Golla Yellaiah (Died) By Lrs. And Others on 16 August, 2001
Equivalent citations: 2001(5)ALD484, 2001(5)ALT645, 2002 A I H C 110, (2002) 1 CIVILCOURTC 407, (2002) 1 ICC 194, (2001) 5 ANDH LT 645, (2001) 4 CIVLJ 627, (2001) 5 ANDHLD 484
Author: Bilal Nazki
Bench: Bilal Nazki, E. Dharma Rao
ORDER Bilal Nazki, J.
1. This second appeal has come up before us by virtue of an order of reference made by the learned single Judge. The plaintiff had filed a suit for declaration of title and recovery of possession. The suit had been decreed. The defendant filed AS No.48 of 1995. In the appeal judgment was pronounced by the Court upholding the judgment of the trial Court. The judgment was delivered by the appellate Court on 7-10-1995. In the second appeal filed thereafter by the defendant a ground was taken that the first appeal had been heard on 12-9-1995 although the respondent i.e., the plaintiff had died on 3-9-1995 therefore the judgment in the appeal was a nullity in view of Order 22, Rule 6 of the Code of Civil Procedure. The learned single Judge referred to a judgment of this Court reported in V. Appalanaidu v. P. Demudamma, . After quoting a paragraph from the said judgment the learned single Judge expressed his doubts about the correctness of the law laid in the judgment and therefore referred the matter to the Division Bench.
2. We have gone through the judgment (supra) and we have also heard the learned Counsel for the parties.
3. Now the question before us is as to whether the judgment delivered in an appeal which was after the death of a party was a nullity, or not. The learned single Judge of this Court in the judgment supra has taken a contrary view. While analysing Order 22 of the Code of Civil Procedure Justice P.A. Choudary was of the view that, in a case in which arguments were heard when one of the parties was dead it would not be a nullity. Taking into consideration all the rules of Order 22 CPC the learned Judge came to the conclusion that a suit or an appeal does not abate till the time granted for bringing on record the legal representatives expires. Therefore, by legal fiction even after the death of a party the suit or appeal survives at least till the time provided under law for bringing on record the legal representatives expires. With our profound respects to the views of the learned Judge, we are unable to agree with this reasoning. It is not a question as to whether an appeal survives after the death of a parry, or not. The question is, whether the parties were represented at the time of arguments or hearing of the case. If a party dies before the matter is finally heard and argued before the Court the advocate who appears for a dead party, is appearing, in fact, for nobody. By fiction of law the suit or appeal may be surviving even after the death of the party for a particular period of time, but the authority of the advocate ceases immediately after the death of a party. In an Adversarial system of litigation it is the parties who have the right to put forth their case before the Courts and this right of the parties cannot be taken away by giving any interpretation to Order 22 to suit such a line of thinking. The framers of the Code of Civil Procedure have been conscious of this fact, therefore by virtue of Rule 6 of Order 22 it was laid down that a judgment can be delivered if a party dies after the hearing. Rule 6 of Order 22 lays down :
"Order-22 Rule-6.
No abatement by reason of death after hearing :--Notwithstanding anything contained in the foregoing rules whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."
The learned single Judge in the judgment supra was of the view that Rule 6 has to be read with Rule 3(1) and the reasoning given by the learned Judge was ;
"It follows that the last direction contained in Order 22, Rule 3(1) of Civil Procedure Code cannot be dispensed with in a trial Court. But the same cannot be said about an appeal where the sole appellant died. In an appeal where normally no oral trial takes place and no fresh evidence is taken. By the time the legal proceedings reach the appellate stage all this would have been over. The concerned of the appellate Court is mainly confined to an examination of the correctness of the judgment of the lower Court by reference to the applicable law and the material already gathered. The hearing of an appeal and rendering of a judgment would not suffer in any way for failure to bring the legal representatives of the deceased-appellant on record. For that reason the proceedings of the appellate Court cannot be regarded as nullity on the ground of non-compliance with Order 22, Rule 3(1) of Civil Procedure Code provided the appeal did not abate under Order 22, Rule 3(2) Civil Procedure Code by lapse of time prescribed for bringing the legal representatives on record. The reasons is that in an appeal the requirement of presence of the appellant is only of minimal importance and is not so vital for the hearing of an appeal, as the presence of a plaintiff undoubtedly would be to proceed with the trial of a suit. It follows, that the last direction of Order 22, Rule 3(1) of Civil Procedure Code as applied to the hearing of an appeal should not be read as absolute and inflexible. It should be regarded merely as directory."
4. As we have said herein above we are not able to agree with this reasoning. It is also not true that the appellate Court is mainly confined to the examination of correctness of the judgment of the lower Court by reference to the law applicable and material already gathered. The fact of the matter is that the parties have a right to be heard and if parties are not represented by reason of death of a party at the hearing, the decree, in our view, becomes a nullity. We are fortified in our view by a Division Bench judgment of Kerala High Court in Easwara Iyer v. Vella Muthan, 1998 (4) SCC 607 (ker) and also in a Kanaran v. Ramunni, . In this judgment (supra) 'Hearing' as occurring in Order 22, Rule 6 was interpreted and it was held that, hearing does not mean hearing of arguments only, it refers to all the stages of the trial of a suit. In our view, the hearing includes all that is done by the Court before reserving the case of judgment. While interpreting Rule 6 of Order 22 CPC we are of the view that, hearing would be complete when nothing more is to be done by the Judge except writing the judgment.
5. There is another judgment of Supreme Court in N.P. Thirugnanam v. R Jagan Mohan Rao, . In this case, the party had died after the arguments had been heard and judgment had been reserved. The Supreme Court while interpreting Rule 6 of Order 22 CPC found :
"In the face of the explicit language in Rule 6 of Order 22, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgment. It may be pronounced, notwithstanding the death, and shall have the same force and effect as if judgment had been pronounced before the death took place. Therefore, the contention that the judgment and decree of the appellate Court is a nullity is devoid of substance."
In view of this clear pronouncement of the Supreme Court the contra is also correct that if the party had died before the conclusion of the hearing the judgment rendered would be a nullity.
6. However, the learned Counsel for the respondents submits that, as a matter of fact the case had not been concluded on 12-9-1995, it was in fact heard on 4-8-1995 but because of Order 20, Rule 1 which create some restrictions for pronouncing the judgment the case was gain listed suo motu by the Court on 12-9-1995. It is submitted that the Judge was not ready with the judgment within the time prescribed under Order 20, Rule 1, therefore he only listed the case and no hearing took place on 12-9-1995. Hearing had actually taken place on 4-8-1995 and the respondent had died on 3-9-1995, therefore bar under Rule 6 of Order 22 will not apply. We cannot subscribe to this view in view of the record. The first paragraph of the judgment records; "This appeal coming up before me for final hearing on 12-9-1995......"
Even otherwise, docket orders do not disclose that the matter had been earlier heard and only for technicality the case was again posted on 12-9-1995. The learned Counsel referred to a judgment in R. Rajaylakshmamma v. R. Kannaiah, . This is a judgment which is not relevant for the purpose of present case. In this case a suit had been filed against a dead person.
7. For these reasons, we hold that the law laid down in V. Appalanaidu v.
P. Demudamma (supra) is not good law.
8. We answer the reference accordingly. Let the second appeal be listed before learned single Judge for disposal.