Delhi District Court
Today vs Unknown on 20 April, 2011
IN THE COURT OF MS.RUCHIKA SINGLA
CIVIL JUDGE-01(NORTH) : DELHI
Suit No.1044/2009
RAJ RANI v. ASCHRAJ
ORDER
Present: None
1. Today, the matter was fixed for orders/judgment. However, during the course of the arguments, the counsel for the defendant no.23 had submitted that during the proceedings some of the defendants expired and some were not served. Vide order dated 08.07.1999, the proceedings against defendants no.3,5,7,8,12-17,20 and 22 had abated. Defendants no.3,5,7,8 were the legal heirs of Sh. Kasturi Lal Lamba, brother of the plaintiff. Defendants no.12-16 were the legal heirs of Sh. Madan Lal Lamba, also brother of the plaintiff. Defendants no. 17 and 22 were also brothers of the plaintiff, while defendant no.20 was legal heir of another brother of the plaintiff, Sh.Jagdish Lal Lamba. Though the legal heirs of defendants no.3,5,7,8, 12-16 and 20 were not impleaded, they were already being represented in the suit and hence the suit in respect to them cannot be said to be abated vide doctrine of representation.
2. However, as regards defendants no.17 and 22, it must be noticed that no steps were taken by the plaintiff to implead their legal heirs on record. The counsel for defendant no.23 has argued that as their legal heirs were not impleaded, the suit has abated against all the defendants. Reference has been drawn on Babu Sukhram Singh v. Ram Dular Singh and Ors., AIR 1973 SC 204, where the Hon'ble court has held that in a suit where a joint claim was sought against the defendants and some of the defendants expired, when no steps were taken by the plaintiff to implead the LRs of the Raj Rani v. Aschraj Suit No.781/2009 Page 1 of 3 deceased defendants, the appeal abated against all the defendants.
3. Similar observations have been made in a number of other judgments also. In Delhi Development Authority v. Amarnath and Ors., 43 (1990) DLT 695 , the above mentioned observations have been reiterated.
4. In Aziz Ahmed and Ors v. Sakina Begum (since deceased) through LRs. and Ors., MANU/DE/3408/2010, the Hon'ble court while discussing a similar question referred to State of Punjab v. Nathu Ram, (1962) 2 SCR 636, where the Supreme Court had laid down the tests to determine as to when and under what circumstances an appeal would abate on the death of one party. It inter alia held as follows:
"The test to determine this has been described in diverse forms. Courts will not proceed with an appeal:
when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the Appellant and the deceased Respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject- matter between the Appellant and the deceased Respondent;
when the Appellant could not have brought the action for the necessary relief against those Respondents alone who are still before the Court and when the decree against the surviving Respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed."
5. The same was also held in Shri Hiralal and Ors. v. Sh. Balbir Singh Bhatia, MANU/DE/7205/2007. In this case, the Hon'ble court also referred to Sardar Amarjit Singh Kalra v. Pramod Gupta, [2002] SUPP 5 SCR 350, where the Constitution Bench laid down:
"The question as to whether the court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially. The question as to when a proceeding before the court becomes or is rendered impossible or possible to be proceeded with, after it had partially abated on account of the death of one or the other party on either side has been always considered to depend upon the fact as to whether the Raj Rani v. Aschraj Suit No.781/2009 Page 2 of 3 decree obtained is a joint decree or a severable one and that in case of a joint and inseverable decree if the appeal abated against one or the other, the same cannot be proceeded with further for or against the remaining parties as well. In case of "joint and indivisible decree", "joint and inseverable or inseparable decree", the abatement of proceedings in relation to one or more of the appellant(s) or respondent(s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto, as otherwise incosistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject- matter vis-a-vis the others. Existence of a joint right as distinguished from tenancy-in- common alone is not the criterion but the joint character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged. Where the dispute between two groups of parties centered around claims or was based on grounds common relating to the respective groups litigating as distinct groups or bodies - the issue involved for consideration in such class of cases would be one and indivisible. When the issues involved in more than one appeal dealt with as a group or batch of appeals, are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals."
6. Similar view was also taken in N. Khosla v. Rajlakhmi, AIR 2006 SC 1249. In the present case before this court, a similar situation is there. If the present suit is decreed, then its execution cannot succeed as some of the parties against whom the decree is to be executed have long since expired. Hence, in view of the above mentioned case law, as the legal heirs of the deceased defendants were not brought on record, the suit has abated as a whole and not merely against those defendants. Hence, in view of this, the suit is dismissed.
File be consigned to record room.
Announced in the Open Court [RUCHIKA SINGLA]
Today on 20.4.2011 CIVIL JUDGE-01 (NORTH)
DELHI
Raj Rani v. Aschraj Suit No.781/2009 Page 3 of 3