Uttarakhand High Court
Plaintiff/ vs Shri Magan Lal And Others on 25 January, 2021
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Order Reserved: 07.12.2020
Order Delivered: 25.01.2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Second Appeal No.73 of 2020
Shri Dhirendra Mohan Sharma
& another
....Plaintiff/Appellant
Versus
Shri Magan Lal and others ....Defendant/Respondents
Present: Mr. Pulak Raj Mullick, Advocate for the petitioners.
Mr. S.K. Jain, Senior Advocate for the respondents.
Hon'ble Sharad Kumar Sharma, J.
(Via Video Conferencing) This order happens to be an interlocutor order, in the present pending second appeal, where the issue which is under consideration is with regards to the effect of the deceased respondent nos.1 and 2, having being impleaded in the Second Appeal; at the time of its institution on 06.08.2020, who were later on, reported to be deceased, as per the office report of the Registry dated 30.09.2020.
2. Brief facts, which are necessary to be considered, by this Court, for the purposes of deciding the said issue, about the effect of deceased person having being impleaded as party respondent in the second appeal, are that on 09.07.1992, the plaintiff/ appellant herein had instituted a suit, bearing the following cause title:-
-2-^^le{k U;k;ky; flfoy tt ¼tw0fM0½ nsgjknwu ewyokn la[;k lu~ 2012 1- Jh /khjsUnz eksgu 'kekZ 2- Jh 'kSysUnz eksgu 'kekZ nksuksa iq=x.k Lo0 Jh gfj'kj.k] nksuksa dk LFkkuh; irk 12 U;w dS.V jksM] xzke gkFkh cMdyk] ijxuk iNoknwu] rglhy o ftyk nsgjknwuA
--------------oknhx.k foijhr 1- Jh exu yky iq= Jh FksiMw 2- Jh Vsd pUn iq= Jh FksiMw 3- Jh ?ku';ke iq= Jh eqdUnh lHkh dk vius }kjk crk;k x;k irk 18 gkFkh cMdyk] U;w dS.V jksM] nsgjknwuA
--------------izfroknhx.k
3. In the suit in question the plaintiffs/appellants, have sought a decree in the nature of demolition, eviction and damages for the user of the property, for which the relief in the suit was modulated as under:-
^^vr% oknhx.k izkFkZuk djrs gSa fd%& ¼d½ lwph esa of.kZr Hkwfe ij izfroknhx.k }kjk cyiwoZd :i ls cuk;s x;s voS/k vukf/kd`r fuekZ.k dks /oLr fd;k tkdj mlds uhps dh Hkwfe dk v/;klu oknhx.k dks fnyk;k tk;sA ¼[k½ izfroknhx.k dks LFkk;h fu"ks/kkKk ls fuf"k) fd;k tk;s fd os lwph esa of.kZr Hkwfe ij dksbZ Hkh fuekZ.k dk;Z uk djsa rFkk uk gh mldh izd`fr dks cnysa rFkk uk gh fdlh rhljs O;fDr dk fgr mlesa lftZr djsa rFkk uk gh oknhx.k ds v/;klu esa dksbZ gLr{ksi cyiwoZd o voS/k :Ik ls djsaA ¼x½ vukf/kd`r bLrsekyh ds dkj.k oknhx.k dks izfroknh ls okn dkyhu o Hkfo"; dk gtkZuk fd tc rd mudk voS/k o vukf/kd`r fuekZ.k /oLr dj mlds uhps dh Hkwfe dk v/;klu mUgs fnyk;k tkrk gS] :0 5000@& izfrekg dh nj ls fnyk;k tk;sA ¼M-½ leLr okn O;; izfroknhx.k ls fnyk;k tk;sA ¼Pk½ vU; izfrdkj tks ekuuh; U;k;ky; mfpr le>s oknhx.k dks izfroknh ls fnyk;k tk;sA -3- lwph Hkwfe {ks=Qy 0-0730 gS0 fd ftldk [kljk u0 299 ,oa [kkrk la[;k 240 ¼Qlyh&1417 ls 1422½ ekStk gkFkh cMdyk] ijxuk iNoknwu] rglhy lnj o ftyk nsgjknwu gS rFkk tks iwoZ uxj ikfydk nsgjknwu dh lhek esa Fkh rFkk vc uxj fuxe nsgjknwu dh lhek esa gS^^
4. In the plaint in which the description of the property, as given therein was given at the foot of the plaint, which constituted to be a land having an area of 0.0730 hectares, which was situated in Khasra No.299 of Khata No.240 of Mauja, Hathi Barkala, Pargana Pachwadoon, Tehsil Sadar, District Dehradun. In the Fasli Year 1411 to 1422, the said land was recorded in the Nagar Palika, Dehradun (hereinafter to be called as the property in dispute). In opposition to the suit in question, the defendants/respondents, had filed their written statement on 13.07.2012, and subsequently after the exchange of the pleadings, learned trial court had framed number of issues, and the issue with which we are concerned; is the basis of the decision which was rendered by the learned trial court on 03.12.2013; wherein the trial court has proceeded to dismiss the suit on the ground that the suit since being barred by Order 7 Rule 11(d), holding thereof that the property in question since being a land which falls to be a revenue land hence it would be covered by the definition of land, which has been provided under Section 3(14) of the Uttar Pradesh Zamindari Abolition & Land Reforms, Act 1950 (hereinafter to be called as U.P. Z.A. & L.R. Act). The trial court has thus held that the suit would be barred by the provisions, as contained under Section 331 of U.P.Z.A & L.R. Act. Accordingly, the decree was rendered in the following manner:--4-
^^vr% mijksDr foospuk ls Li"V gS fd oknhx.k dk okn /kkjk&331 m0iz0 tehankjh fouk'k ,oa Hkwfe lq/kkj vf/k0 ls ckf/kr gSA ,sls esa oknh dk okn varxZr vkns'k 7 fu;e 11 lh0 ih0 lh0 ukeatwj fd;s tkus ;ksX; gSA rn~uqlkj okn fcUnq la05 oknhx.k ds fo:) ,oa izfroknhx.k ds i{k esa fu.khZr fd;k tkrk gSA oknh dk okn ukeatwj fd;k tkrk gSA i=koyh nkf[ky nQrj gksA^^
5. The plaintiffs/appellants, herein has been then advised that since it was a decision, which was rendered exclusively on the basis of issue no.5; and the impact of the decision, on the issue was having an effect of deciding the suit itself, they were advised to file a civil revision; being Civil Revision No.185 of 2013, Dhirendra Mohan Sharma and another vs. Magan Lal and others, which was later on permitted to be converted into a first appeal; being First Appeal No.63 of 2017, Dhirendra Mohan and others vs. Magan Lal. In the First Appeal, thus filed the array of parties, which were described therein was as under:-
^^izFke vihy la[;k 63 lu~ 2017] 1- Jh /khjsUnz eksgu 'kekZ 2- Jh 'kSysUnz eksgu 'kekZ nksuks iq=x.k Lo0 Jh gfj'kj.k] nksuksa dk LFkkuh; irk 12 U;w dS.V jksM] xzke gkFkh cMdyk ijxuk iNoknwu] rglhy o ftyk nsgjknwu
[email protected] foijhr 1- Jh exu yky iq= Jh FksiMw 2- Jh Vsd pUn iq= Jh FksiMw 3- Jh ?ku';ke iq= eqdUnh lHkh dk vius }kjk crk;k x;k irk 18 gkFkh cMdyk] U;w dS.V jksM] nsgjknwuA
------------izfroknhx.k@izR;kFkhZx.k^^ -5-
6. The appeal in question was proceeded to be heard on merits; and ultimately the same was also dismissed by the First Appellate Court, of Vth Additional District Judge, by the impugned judgment dated 04.03.2020. Aggrieved against the aforesaid two judgments and decree, the present second appeal was instituted by the plaintiffs/appellants before this Court on 06.08.2020. In the cause title of the second appeal, the plaintiffs/appellants had yet again given the same description of the array of parties; as it was given in the First Appeal No.63 of 2017, which was instituted before the court of Vth Additional District Judge, Dehradun.
7. On the institution of the second appeal, since it was filed at a belated stage and as there was a delay in filing the second appeal, the plaintiffs/appellants were directed to file a delay condonation application and consequently, in compliance of the order dated 10.08.2020 passed by this Court, the plaintiffs/appellants filed a Delay Condonation Application No.6180 of 2020, seeking a condonation of delay, which has chanced, in preferring the second appeal. It is on this application; when it came up for consideration, the notices were issued to respondents vide order of this Court dated 19.08.2020, and its only after the service report, which was placed on records of order sheet of the present second appeal, on 30.09.2020 wherein it was reported as under:-
i. Respondent no.1 was reported to have died, on 26.05.2018.-6-
ii. The respondent no.2 was reported to have died, on 20.04.2016.
iii. However, the notice on respondent no.3 stood served.
8. On the basis of the said office report, the sole respondent no.3, who was served with the notices, had filed an objection to the delay condonation, by way of Application No.9244 of 2020, contenting thereof that since second appeal itself has been preferred as against the deceased persons, the same would not be tenable. On the said objection, this Court considering the application itself had proceeded to pass an order on 01.10.2020; dismissing the appeal having being abated qua the deceased/respondent nos.1 and 2.
9. Later on, 15.10.2020, the plaintiffs/appellants, had filed the Substitution Application No.8686 of 2020, accompanied with an independent application for Setting Aside Abatement No.8687 of 2020, and a delay condonation application in support thereto being Application No.8688 of 2020. It is from this stage, that the present controversy stood germinated, as to in such an eventuality, where at the time of filing of second appeal, the respondents were pre-deceased, whether:-
1. The second appeal could have been dismissed as having being abated, as against respondent nos.1 and 2, because abatement, could have been, according to the respondent; had the respondents -7- died during the pendency of the second appeal?
Otherwise, according to the argument, which has been extended by Mr. S.K. Jain, the learned Senior Advocate, since the respondent nos.1 and 2, were pre-deceased, there was no legally sustainable second appeal pending as against them at all at the time, when it was instituted before the Registry on 06.08.2020.
2. His argument was that since the party respondent nos.1 and 2, were not alive, at the time when the second appeal was filed on 06.08.2020, there could not have been any substitution application, which could be filed, as preferred by the plaintiffs/appellants on 15.10.2020. Hence, the counsel for respondent no.3, filed a Recall Application No.9317 of 2020, on 03.10.2020, seeking to recall the order date 01.10.2020, dismissing the second appeal as having abated qua respondent nos.1 and 2.
10. On considering the grounds of recall application, pending consideration, the substitution application, which was preferred by the plaintiffs/appellants, this Court after considering the rival contentions; had recalled the order dated 01.10.2020, in view of the above fact and as argued by the counsel for the respondents that since respondent nos.1 and 2, were pre-deceased, the provision contained under Order 22 Rule 4, would not apply and their rational was that, if that is not applicable, in that eventuality, there would not have been an application of provisions contained -8- under Order 22 Rule 9 of C.P.C. for setting aside abatement. Subsequently, the applications for substitution, setting aside abatement and the delay condonation as filed on 15.10.2020, had come up for consideration before this Court.
11. The learned counsel for the respondents during the course of argument was posed with a question, when he was opposing the substitution application; as well as the recall application, as to what impact would it have to the provisions contained under Order 22 Rule 10-A of C.P.C., particularly, when at the stage, when the first appeal was pending consideration before the first appellate court and the surviving respondent no.3, had not taken any steps under Order 22 Rule 10-A of C.P.C. of giving an intimation about the fact of death of respondent nos.1 and 2; to the court concerned. In answer to it, the argument which was extended by the learned counsel for respondent no.3, was from the prospective that the provisions contained under Order 22 Rule 10-A of C.P.C., is not mandatory, but rather it is directory in nature and in an eventuality, if the respondents had not informed, the first appellate court, about the fact of death of respondent nos.1 and 2; that in itself will not entitle the plaintiffs/appellants, to file a substitution at the second appellate stage. Because as per the argument, which had been extended, since the responsibility of informing the Court under Order 22 Rule 10 A, has been assigning to the pleader and as per the provisions of the C.P.C., the argument was that it was not mandatory and in relation thereto, the counsel for the respondent no.3; has made a reference and relied on a -9- judgment reported in (1987) 2 Supreme Court Cases 583 United Bank of India vs. Smt. Kanan Bala Devi and Others and particularly he has made reference to para 10 of the said judgment:- Para 10 of the said judgment is quoted hereunder:-
"10. Of course, the law under the present Civil Procedure Code obviates this difficulty to some extent under Order 22 Rule 10-A. Under the rule, when a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, whereupon the Court shall give notice of such death of the other party. However, this provision not being absolutely mandatory and casts a duty only on the pleader, we thought it necessary to answer the question of law involved in this appeal.
12. The Hon'ble Apex Court; while dealing with the said judgment, it was, in those set of circumstances of that case, where the suit was instituted for the purposes of the recovery of the bank dues, the Hon'ble Apex Court has held that since the provisions contained under Order 22 Rule 10- A of C.P.C., it was a responsibility, which has been casted on the pleader of the party, who was appearing, who was suppose to inform about the death of the parties, whereupon the pleader has been given with the responsibility, to give notice of such death, it was from that perspective, the Hon'ble Apex Court has held that since is the responsibility which has been shouldered to be discharged by the counsel, it will not be mandatory, but rather directory in nature.
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13. Another judgment on which the reliance has been placed by the counsel for respondent no.3, is that as reported in (2009) 11 Supreme Court Cases 183 Katari Suryanarayana and others vs. Koppisetti Subba Rao and others.
"12. It is now trite by reason of various decisions of this Court that different considerations arise in the matter of condoning the delay in filing an application for setting aside an abatement upon condonation of delay in a suit and an appeal. It is furthermore neither in doubt nor in dispute that such applications should be considered liberally. The Court would take a more liberal attitude in the matter of condonation of delay in filing such an application. There are, however, exceptions to the said rule.
13. Parties hereto were neighbours. They were fighting over the right to use a lane which connects their respective residential houses. It is, therefore, difficult for us to appreciate that the appellant was not aware of the dates of death of respondent Nos.2 and 3."
14. In the said judgment, the Hon'ble Apex Court; was dealing with an inter play impact of the provisions contained under Order 22 Rule 9 of C.P.C., to be read with Rule 10-A of Order 22. In that case there was entirely a different set of circumstances, where the impact of an abatement of the proceedings of a suit, was being dealt with in the absence of there being an information supplied about the death of one of the parties, as it was provided by the proceedings, which are contemplated under Order 22 Rule 10-A, and that too where approaching the Court, was at a much belated stage, on filing of an application for setting aside abatement, was delayed inordinately. The
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distinction in that situation, which was dealt with in the said judgment by the Hon'ble Apex Court, was from the prospective that it was a dispute pertaining to the user of a common passage, which used to connect the houses of all the parties to the suit. In that case all the parties to the proceedings were residing in the neighbourhood of one another, where the knowledge of death, was automatic and quite obvious too, to another neighbourer, who was also a party to the proceedings and besides, this above and all they were the co-sharers of the disputed property, therein in the said case. It was under those peculiar circumstances, that the Hon'ble Apex Court, in paragraphs 12 and 13, of the said judgment had observed that since in the circumstances of the said case, the parties to the proceedings were neighbourers; co-sharers and were using a common passage for their ingress and egress, hence, the Hon'ble Apex Court; drew an inference that it would be reasonably presumed, that they had the knowledge about the death of the other party and any ignorance or dereliction of bringing the heirs of the deceased, on record at an appropriate time was declined to be condoned.
15. The reference to paragraphs 12 and 13, which has been quoted above, in the given set of circumstances of the case, in fact, it was dealing with the ratio of Order 22 Rule 9 and Order 22 Rule 10-A, particularly in the circumstances of the said case, which was prevailing there, where the aspect of delay was being considered on account of there being a knowledge attributed to the adversary party, and it was expected that an appropriate application, ought to have been filed for substitution within time. Thus,
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the situation prevailing there does not happen to be akin to the present situation as prevailing in the present second appeal.
16. The counsel for the respondent no.3, has placed reliance, on yet another judgment which has been reported in AIR 1990 Orissa 94, Barja Bahiya and others vs. Gandaram Baheda and others, wherein in para 9, of the said judgment, on which the reliance has been placed, the principle, which has been laid down therein is that since the provisions contained under Order 22 Rule 10-A, is only procedural in nature and since it does not contemplate any penal action in a situation of its for non-compliance of the provisions and hence in the absence of there being any penalty contemplated, or provided under law for its non compliance, the Coordinate Bench of the Orissa High Court, has held the same, as to be only procedural and not a substantive provision, in nature. Para 9, of the said judgment is quoted hereunder:-
"9. Mr. B.K. Nayak, learned counsel for the appellants, submitted that under O.22, Rule 10- A, C.P.C. duty has been caste on the learned counsel appearing for the deceased respondent to intimate the fact to the Court. It is so. However, no penalty has been provided for non-compliance of the provisions. This provision is procedural. In absence of penalty for non-compliance of a procedural provision, the same is to be interpreted as directory and not mandatory. No doubt, non-compliance with such a provision would be a ground to condone the delay in case appellants satisfy the Court that the deceased having appeared, they remained assured and did not become vigilant to keep note of the whereabouts of the appearing respondent who died subsequently. This provision, however, does
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not absolve the appellants from taking steps for substitution non-compliance of which provides for a penalty. In this appeal, appellants did not rightly take a stand that they did not know the procedure since on earlier occasion, they had already taken steps for substitution of a deceased party. When the appellants had knowledge of the death and had been acquainted with the procedural law, non-compliance of Order 22, Rule 10-A, C.P.C. is not a sufficient cause either for condonation of delay or for setting aside abatement. Application for setting aside abatement has thus, no merit on the ground made out by the appellants and accordingly, petition for substitution is not entertainable."
17. In response to it, the learned counsel for the petitioners had submitted that as far as the argument of learned counsel for respondent no.3, is concerned while opposing the substitution application, the argument of Mr. S.K. Jain, the learned Senior Advocate; that the provisions of Order 22 Rule 10-A, is simplicitor procedural in nature and is not mandatory, he has extended his contention, in reply to argument, in the light of the ratio, which has been laid down by the Hon'ble Apex Court in yet an another judgment reported in (1995) 1 Supreme Court Cases 187 Bibijaan and others vs. Murlidhar and others, though that was a case pertaining to a suit involving a controversy of redemption of a usafactory mortgage and the trial court has dismissed the suit, being barred by limitation, and the said judgment of dismissing the suit being barred by limitation was later on, affirmed by the appellate court. It's under those circumstances, where redemption of mortgage, was one of the prime consideration. The issue during the pendency of an appeal
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the appellant no.1 and appellant no.5; therein had died in the year 1984-87 respectively. There the issue arose that at the stage of the first appellate stage only, where there was no step taken for substitution, so far it related to respondent no.5 only, but for respondent no.1, but as far as the appellant no.5 is concerned, no substitution application as such was ever preferred before the first appellate court and it was under those circumstances, that the Hon'ble Apex Court had held that in view of the provisions contained under Order 22 Rule 11 since the provisions of Order 22 happens to be procedural in nature and made applicable in an appellate proceedings there it has been held that even if after the expiry of a period of limitation provided under Article 120 of the IIIrd Schedule of the Limitation Act, if the cause of action still survives, even after the expiry of 90 days period, it had been as provided therein, the appeal would still continued to survive as against the surviving appellants and if the inter play of Article 120 if is read with Article 121 of the Limitation Act; where it provides an extended period of 60 days to file a substitution, after the expiry of 90 days period under Article 120; it has laid down that when the decree of redemption of mortgage, as against respondent nos.1 and 5; has come to a standstill, because of the abatement, the decree of redemption of mortgage as against respondent nos.2 to 4, alone cannot be set aside and in such an eventuality, where the decree was held to be indivisible and a right of appeal survives still the application under Order 22 Rule 2/3, to be read with Order 22 Rule 11, would still be applicable.
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18. Another judgment on which the reliance has been placed by the counsel for the appellant is that as reported in (2016) 1 Supreme Court Cases 607 Banwari Lal (Dead) by Legal Representatives and another vs. Balbir Singh. The facts of the said case were almost virtually happens to be the same, as that in the present one. The said appeal was abated due to non substitution of the heirs of the deceased party to the appeal. Later on, on an application which was filed to bring on record the heirs of the deceased respondent, who had died during the pendency of the appeal though the Hon'ble Apex Court had held that the appellant was duty bound to bring the legal representatives of the deceased respondents on record, but in that case the legal representatives of the deceased respondents were already impleaded as party therein and the said fact was not noticed by the Court, hence the Court held that in those circumstances, where the heirs cannot be brought into on record in the appeal, in that eventuality then the principles contained under Order 1 Rule 10-A to be read along with the provisions as provided under Section 151 of C.P.C. would be attracted and it has been held that Order 22 since being a "Rule of procedure", its strict adherence may not be insisted where the substantial rights of the parties are still involved and survived to be adjudicated on merits. That is what has been postulated by the ration laid therein in paragraphs 8, 9 of the said judgment, which is referred to hereunder:-
"8. Since no steps were taken to bring on record the legal representatives of late Banwari Lal either in the first appeal or in the second appeal, the Appellants have filed CM No. 1998/2012 (Under Order I Rule 10 Code of Civil Procedure read with Section 151 Code of Civil Procedure) to
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implead (i) Shakuntala (ii) Gaurav (iii) Rachna and (iv) Manju. Code of Civil Procedure Order XXII stipulates the manner in which the legal representatives of Plaintiffs or Defendants ought to be brought on record. The prescribed procedure cannot be circumvented by filing application Under Order I Rule 10 Code of Civil Procedure read with Section 151 Code of Civil Procedure. However, in our view, it would be unjust to non-suit the Appellants on the ground of technicalities.
9. Provisions of Order XXII Code of Civil Procedure are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta, a five- Judge Bench of this Court held as under:
(SCC pp. 300-01, para 26) "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws.
Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 Code of Civil Procedure as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle
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but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining Appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice."
(emphasis supplied)
19. The Hon'ble Apex Court in the said case has held that the predominant consideration for the courts for bringing the legal representative of the deceased party on record would be that the consideration of the survival of the cause of action and the sole motive and judicial intention for attracting the provisions contained under Order 1 Rule 10-A, which has to be read with Section 151 of C.P.C. was with the intention that the endeavour should be made by
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the Courts to afford sufficient opportunity of hearing to both the parties, which would also be inclusive of the heirs of the deceased/respondents; who had died during the pendency of the proceedings before the appellate court and in those situations, where on account of dereliction on part of the parties or counsels who are contesting the proceedings diligently by not bringing the heirs on record, but still the Hon'ble Apex Court has held in para 10 of the said judgment on the basis of a Constitution Bench judgment reported in (2003) 3 SCC, 272, Sardar Amarjeet Singh Kalra vs. Pramod Gupta which has referred to that the High Court should in the wider interest of dispensation of an effective justice should construe the procedural law in a positive and constructive approach, and should not merely scuttle the whole process by its fore closure and not adjudicating the matter on its merit, particularly the following reference has been made in para 10 of the said judgment of Banwari Lal (Supra), which is referred hereunder:-
"10. In Sital Prasad Saxena (D) by L.Rs. v. Union of India and Ors., it was observed that the rules of procedure Under Order XXII Code of Civil Procedure are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order cannot be sustained."
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20. Accordingly, as per the ultimate conclusion which has been drawn by the Hon'ble Apex Court, it was in view of the reasoning given in para 10 of the judgment, (which has been referred to above) where it is provided that an application under Order 22 Rule ¾, would be dealt with as if to be an application under Order 1 Rule 10, in the manner, for its positive purpose, to bring the legal representative of the late parties to the proceeding on record of the proceedings, who otherwise earlier could not be brought on record by way of substitution at an appellate stage. An identical view and judicial analysis was also expressed in a judgment reported in AIR 1979 Supreme Court 1393, N. Jayaram Reddi and another vs. The Revenue Divisional and Officer and Land Acquisition Officer, Kurnool. In the said judgment too, the Hon'ble Apex Court was seized with and was dealing with almost a similar question of the abatement of a cross appeal; where no abatement was made and at the stage; when the principal proceedings of the first appeal was being decided and the party was already predeceased. The Court has held that since at that stage of time no objection was raised by the opposite party regarding abatement of the appeal, nor it was taken during the hearing of an appeal and the cross objection was permitted to be carried and decided on its own merit, in that eventuality the objection of and the effect of non substitution of the deceased party to the proceeding cannot be raised after the dismissal of an appeal and allowing of a cross objection, and the said principal was decided on the wider basis motive and a logical concept and judicious purpose that it would amount to be an abandonment of plea of an abatement. Which almost
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happens to be an akin situation in the present case also because here too in the present case also the respondents too had never earlier resorted to any such steps, to be taken at the stage of the appeal for getting the appeal dismissed on the pretext; as having abated and hence, if the said principles of Jay Narayan Jaya Ram Reddi (Supra) is attracted in that eventuality, in this case too, it will also tacitly attract the principles of abandonment of a plea of abatement. A reference may be had to the discussions, which has been dealt with by the Hon'ble Apex Court, in para 25, 27, 28, 29 and 30, which are referred to hereunder:-
"25. Now, Order 22, Rule 4 read with Order 22,, Rule 11 of the CPC require that the appellant in Government appeal should have brought the legal representatives of respondent deceased Y. Prabhakar Reddy, on record. There is no controversy that Rule 4 of Order 22 read with Rule 11 would be attracted, in this case, and as admittedly the legal representatives of deceased Y. Prabhakar Reddy, the respondent in Government appeal, were not brought on record till the appeal was disposed of, ordinarily the appeal would abate.
27. This question may be examined first on principle. The basic principle underlying Order 22, Rules 3 and 4 which on account of the provision contained in Order 22, Rule 11 apply to appeals, is indisputably a facet of natural justice or a limb of audi alteram portent rule. It is a fundamental rule of natural justice that a man has a right to be heard-audi alteram partem-where a decision affecting him or his interest is to be recorded. It hurts one's sense of justice, fairness and reason that a decision one way or the other is recorded affecting a party without giving that party an opportunity of being heard. This rule embraces the whole notion of fair procedure and the rule requiring a hearing is of almost universal validity. It has made a serious inroad in administrative
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decisions. It should enjoy a top place in a judicial proceeding.
28. The first limb of this rule audi alteram partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. As a corollary to this rule it is provided in the CPC that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. It may be that the legal representatives in a given situation may be personally liable or the estate of the deceased in their hands would be liable and in either case a decision one way or the other, adverse or favourable to them, cannot be recorded unless they are given an opportunity of being heard. Order 22, Rules 3 and 4 codify these procedural safeguards translating into statutory requirement one of the principles of natural justice.
29. If this is the discernible principle underlying Order 22, Rules 3 and 4 it has been demonstrably established by interpretation put on these two rules. Original view was that all legal representatives of a deceased plaintiff or defendant must be substituted on the pain of the action abating. With utmost diligence from a multitude some one may escape notice and the consequent hardship in abatement of action led this Court to assert the principle that where some legal representatives are brought on record permitting an inference that the estate is adequately represented, the action would not abate though it would be the duty of the other side to bring those legal representatives on record who are overlooked or missed even at a later date. When the aforementioned two provisions speak of legal representatives it only means that if after diligent and bona fide enquiry the party liable to bring the legal representatives on record ascertains who are the legal representatives of a deceased party and brings them on record within the time limited by law,
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there is no abatement of the suit or appeal on the ground that some other legal representatives have not been brought on record because the impleaded legal representatives sufficiently represent the estate of the deceased and the decision would bind not only those impleaded but the entire estate including the interest of those not brought on record. This view has been consistently adopted by this Court in Daya Ram and Ors. v. Shyam Sundari. The principle deducible from these decisions is that not only the interest of the deceased was adequately taken care of by those who were on record but they had the opportunity to put forth their case within permissible limits. Neither the case of the deceased nor of his successors-in-interest has gone by default. In other words, the principle is that if the deceased had as a party a right to put forth his case, those likely to be affected by the decision on death of the deceased had the same opportunity to put forth their case and even if from a large number having identical interest some are not brought on record those who are brought on record would adequately take care of their interest and the cause in the absence of some such would not abate. In legal parlance this procedure affords an opportunity of being heard in all its ramification before a decision on the pending list is taken.
30. Another principle in this behalf which has found recognition of the Courts is that if the legal representatives of the deceased party are before the Court in the same action even if in another capacity, failure to bring them on record in a specific legal position would not result in abatement of the action. In Mahabir Prasad v. Jage Ram and Ors (1971)3 SCR 301: (AIR 1971 SC 742), this Court was called upon to consider whether where a legal representative of a deceased party is on record in another capacity, failure to implead him as legal representative of the deceased party would result in abatement of the action? In that case Mahabir Prasad, his wife Saroj Devi and his mother Gunwanti Devi filed a suit against Jage Ram and two others for recovering rent then due in the aggregate
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amount of Rs. 61,750/-. The suit ended in a decree. The execution of the decree was resisted by the defendants on the plea inter alia that the decree was inexecutable because of the provisions of Delhi Land Reforms Act, 1954. This contention found favour with the executing court and the application for execution was dismissed. Muhabir Prasad, one of the decree holders alone appealed against that order and impleaded Gunwati Devi and Saroj Devi as party respondents along with the original judgment- debtOrs. Saroj Devi died in November 1962 and Mahabir Prasad applied that the name of Saroj Devi be 'struck of from the array of respondents. The High Court made an order granting the application "subject to all just exceptions".
Subsequently the High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on record within the period of limitation, the appeal abated in its entirety. This Court, while setting aside the order made by the High Court holding that the appeal abated, observed as under:
"Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as an heir and legal representative of Saroj Devi was made. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on record,, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate."
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21. The counsel for the appellant had further supported his stand, in the light of the judgment and the ratio which has been reported in (1975) 1 Supreme Court 212 Hari Har Prasad Singh vs. Balmiki Prasad Singh and other. In the said judgment too, which was based on the principles as has been enunciated by the Hon'ble Apex Court, in a judgment reported in AIR 1966 Supreme Court 792 N. K. Mohd. Sulaiman Sahib vs. N.C. Mohd. Ismail Saheb and others, wherein it was observed that, in those cases, if on account of an oversight or on account of some doubt or human error, as to who would be the appropriate heirs to be substituted in place of a deceased person, to the proceedings and if the substitution has not been made or if it has been left out to be made in such an eventuality, the Hon'ble Apex Court, had held that it would not be safe and contrary to the judicial ethos too, to hold that the entire estate of the deceased cannot be left to be unrepresented until and unless, an extreme case of deliberate fraud or collusion is made out by facts and evidence between the parties to the proceedings, which was to be proved to be maliciously intending to prejudice the interest or the rights of the others. Since that being not the case in the present case, the strict principles of the abating the proceedings of Second Appeal, particularly when despite of the fact that the lis and its cause continued to survive and hence, in view of the principles laid down in para 33 of the said judgment which is referred to hereunder:-
"33. It was observed by the Madras High Court in Kadir v. Muthukrishna Ayyar:
In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such
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defendant sufficiently represents the estate of the deceased for the purpose of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate.... If this were not the law, it would, in no few cases, be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representative or may not be the true legal representative.
After referring to this statement of the law this Court in Daya Ram v. Shyam Sundari went on to remark:
In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating.
In Dolai Molliko v. K. C. Patnaik on the death of one of the plaintiffs-appellants in an appeal pending before the Subordinate Judge his widow and the major son were substituted on record as heirs. It was later discovered that the deceased had left some other heirs besides the two. The respondents raised an objection that as some of the heirs of the deceased had been left out and there could be no question of want of knowledge of the existence of these heirs on the part of the widow and the major son who had applied for being brought on record, the appeal abated. It would be noticed that the position is exactly the same here. This Court held:
The estate of the deceased was fully represented by the heirs who had been brought on the record and these heirs represented the
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absent heirs also, who would be equally bound by the result.
It was observed:
Even where the plaintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings.
After referring to the decisions in N.K. Mohd. Sulaiman Sahib v N.C. Mohd. Ismail Sahab [1966 (1) SCR 937] and Daya Ram v D Shyam Sundari (supra) the Court went on to observe:
It will be noticed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of the appellants. This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record; this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is no question of any diligent or bona fide enquiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be held to represent the entire estate including the interests of the heirs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who
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are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist.
In the present case there is no question of any fraud or collusion; nor is there anything to show that there had not been a fair or real trial, nor can it be said that against the Absent heir there was a special case which was not and could not be tried in the proceeding in his absence.
It must be made clear that the fraud or collusion mentioned must be a fraud or collusion between the appellant on the one hand and the representative of the deceased respondent who is brought on record on the other and vice versa. In the present case failure to bring Ghia Devi, daughter of Manmohini, on record cannot be said to be a fraud on the part of her brother Raktoo Singh in collusion with the respondents nor can he deprive Ghia Devi of her rights by not impleading her as the legal representative of their deceased mother. The fraud contemplated is a fraud or collusion between the parties on record to the detriment of the legal representative who has not been brought on record."
22. For the aforesaid reasons, this Court is of the opinion, that in the present second appeal, the act or inaction of non substitution was not malicious or deliberate, in the present second appeal, it would be appropriate and interest of justice too, to meet the wider interest of justice, for an effective meritorious judgment, to treat the application preferred by the plaintiff/appellant; as to be an application under Order 1 Rule 10, to be read with Section 151 of C.P.C.; in order to bring the heirs of deceased/respondent nos.1 and 2, on record for enabling them to be a party for effectively deciding the lis on its own merits. If the aforesaid judgments are borne in mind; apart
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from the fact that it has held that the provisions of Order 22 are procedural in nature, they are not mandatory in nature and which is the principle also admitted and argued by the counsel for the respondents and particularly, the fact that since the Hon'ble Apex Court, has also laid down that in an event the party to the appeal is a pre-deceased, then too the application under Order 22 Rule 3 and 4, could be termed, to be treated as to be an application under Order 1 Rule 10 of the C.P.C.
23. Hence, for the reasons aforesaid, I am too of the view that after having gone through the aforesaid judgments relied by the counsel for the parties; and after having given a thoughtful consideration particularly looking to the nature of dispute, which was engaged consideration in present suit, pertaining to the demolition; ejectment and the imposition of the damages claimed by way of a decree for the user of the property, I am of the opinion that the reasons assigned in the delay condonation application, seeking condonation of delay, for seeking substitution of the heirs of the deceased respondent nos.1 and 2, had been satisfactory explained and the application thus, preferred under Order 22 Rule 3, is being directed to be treated as to be an application under Order 1 Rule 10, to be read with Section 151 of C.P.C. and the description of the heirs of the deceased respondent no.1, as given in para 3 of the substitution application (which is being now directed to be treated to be an application for impleadment) is allowed. The cause title of the second appeal is directed to be amended, accordingly. Similarly, the substitution application to bring on record the heirs of
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deceased/respondent no.2 too, which has already been directed to be treated as to be an application for impleadment is allowed. The description of heirs as given in the substitution application in its para 3, are being directed to be impleaded as a party respondent in the second appeal.
24. Hence, the description of respondent no.1 would now be read as 1/1 Smt. Leela Devi, W/o Late Magan Lal, 1/2 Bir Singh, S/o of Late Shri Magan Lal and 1/3 Satish Kumar, S/o Late Mr. Magan Lal all residents of 18 Hathi Barkala, New Cantt. Road, Dehradun and similarly by the deceased/respondent no.2 would be substituted and read as 2/1 Ajay Kumar, S/o of Late Tek Chand, resident of Hathi Barkala, New Cantt. Road, Dehradun. Accordingly, the applications, preferred by the appellant under Order 22 Rule 3 and 4 would stand allowed and would be treated as to be an application under Order 1 Rule 10 to be read with Section 151 of C.P.C. The appellant is directed to carry out the necessary amendment in the cause title of the second appeal within a period of ten days from the date of receipt of the certified copy of this order. He is further directed to take steps for serving the notices on the delay condonation application filed alongwith the second appeal.
25. Accordingly for the reasons already given in the present order would lead to disposal of the following applications:-
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Substitution Appl. No.8686 of 2020 Setting Aside Abatement Appl. No.8687 of 2020 Delay in Setting Aside Abatement Appl. No.8688 of 2020.
Substitution Appl. No.8689 of 2020 Setting Aside Abatement Appl. No.8690 of 2020 Delay in Setting Aside Abatement Appl. No.8691 of 2020 Misc. Appl. No.9244 of 2020 Misc. Appl. with Supplementary Affidavit No.12026 of 2020 (Sharad Kumar Sharma, J.) 25.01.2021 Arti
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