THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM
CIVIL REVISION PETITION Nos.602, 605 and 606 of 2020
COMMON ORDER:
These Civil Revision Petitions are filed against the Common Order
dated 26.11.2019 passed by the XI Additional Chief Judge, City Civil
Court, Hyderabad (for short, 'the trial Court') in I.A(SR) Nos.2322, 2323
and 2324 of 2019, rejecting the applications as 'not maintainable' on the
ground that the suit O.S.No.882 of 2013 itself has been disposed of and
appeal having been filed by the defendants in August 2000.
Heard Sri Sunil B. Ganu, learned counsel for the revision
petitioners/plaintiffs, and Sri G.V.V.S.R. Subramaniam, learned counsel
for the respondents/defendants.
Brief facts of the case are that the suit O.S.No.882 of 2013 was filed for declaration and recovery of possession. The plaintiffs were heard on 22.02.2019, and the defendants were heard on 08.03.2019. The judgment was rendered on 10.04.2019 decreeing the suit in favour of the plaintiffs. The plaintiffs are residents of USA. Plaintiff No.3 passed away on 26.02.2019. It is the submission of the learned counsel for the plaintiffs that the plaintiffs did not intimate about the death of plaintiff No.3 apparently being not aware of the procedure in law, and the counsel came to know about the death of plaintiff No.3 only after he intimated about passing of the Judgment and Decree in the suit, and therefore the lack of intimation to the Court about the death of plaintiff No.3 was not intentional. Upon such intimation, the counsel filed IA(SR) No.2323/2019 seeking to bring on record the petitioners No.6 and 7 as legal heirs of plaintiff No.3, and IA(SR) No.2322/2019 to make consequential amendments in the suit, and IA(SR) No.2324/2019 to 2 crp_602, 605 & 606_2020 CKR, J amend the decree incorporating the petitioners No.6 and 7 as plaintiffs No.6 and 7 in the cause title as legal heirs of deceased plaintiff No.3. The applications were rejected by the trial Court by the impugned Common Order.
It is the submission of the learned counsel for the petitioners/plaintiffs that the respondents/defendants filed the appeal CCCA No.310 of 2019 only on 05.08.2019 along with stay petition and the stay petition came to be dismissed by the Division Bench of this Court on 23.10.2019. Therefore, as on the date of filing of aforesaid interlocutory applications before the trial Court, no appeal was filed by the defendants against the Judgment and Decree passed in the suit, and therefore the trial Court ought to have entertained the applications as the same are permissible under Order 22 Rule 3(1) of CPC, Rule 28 of Civil Rules of Practice, and Section 153 of CPC, respectively.
Learned counsel for the plaintiffs relied on the following judgments in support of his contentions:
1) Himangshu Bhusan Kar v. Monindra Mohan Saha1
2) Mohd. Hussain (dead) by LRS v. Occhavlal2
3) State of Andhra Pradesh through Principal Secretary v.
Pratap Karan3
4) VIP Emporium v. TCI Finance Ltd4
5) Tilak Raj v. Baikunthi Devi5
6) Chetin Gir v. Harjinder Singh6
7) Goverdhan Dass v. Darshan Singh7
8) Dwarkaprasad v. Safurabai8
1
AIR 1954 Cal 205
2
(2008) 3 SCC 233
3
(2016) 2 SCC 82
4
2012 (3) ALT 165
5
(2010) 12 SCC 585
6
1978 Punjab Law Journal 366
7
1968 SCC OnLine P&H 186
8
Air 1958 MP 307
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CKR, J
On the other hand, Sri G.V.V.S.R. Subramaniam, learned counsel appearing for the respondents, submits that as the appeal CCCA No.310 of 2019 filed against the judgment and decree in O.S.No.882 of 2013 is pending before this Court, no interlocutory application is maintainable before the trial Court as the suit itself was disposed of by the trial Court, and therefore if any application is sought to be made, it can only be made in the CCCA No.310 of 2019. Learned counsel contends that, as a matter of fact, plaintiff No.3 died on 26.02.2019 when the suit was pending and therefore the inaction in bringing on record the legal representatives of plaintiff No.3 is fatal to the proceedings. It is further contended that the GPA holder cannot feign ignorance of the death of the plaintiff No.3, and further the Execution Petition was filed by adding legal representatives of plaintiff No.3. It is also contended that the application purported to be made under Section 153 of CPC is not maintainable as Section 153 of CPC is applicable only in relation to correction of clerical mistakes, and further as on the date of making an application under Section 153 of CPC, the suit itself stands disposed of, and therefore no amendment to the Cause Title is permissible by the trial Court after disposal of the suit. It is also contended that the judgments relied on by the counsel for the petitioners have no application to the facts of the present case and thus prays for dismissal of the Civil Revision Petitions.
In the above narrated set of facts and in the light of the arguments of the respective counsels, two core questions would fall for consideration in the present civil revision petitions.
1) Whether, on account of the death of the 3rd plaintiff on 26.02.2019, the suit filed by the petitioners is abated, and therefore the judgment and decree passed by the trial Court on 10.04.2019 was without jurisdiction and is a nullity?
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2) Whether there is any bar for granting of amendment of
decree, more particularly, when an appeal is pending against the judgment and decree before the appellate Court?
At the outset, it may be noted that the applications filed by the petitioners were rejected as not maintainable.
CRP No.606 of 2020 is filed against the order in IA(SR) No.2323 of 2019, invoking Order 22 Rule 3(1) of CPC, to bring on record the legal representatives of the deceased plaintiff No.3. It may be noted that if the answer to question No.1 is in affirmative, the CRP No.606 of 2020 is liable to be dismissed and consequently the other two Civil Revision Petitions filed for consequential reliefs are also liable to be dismissed.
At the outset, it may not be out of place to mention that the relief claimed is in relation to a valuable immovable property for declaration and consequential recovery of possession. As per the plaint in O.S.No.882 of 2013, the suit schedule property is the property purchased by one V.L.Kharwande, husband of the 1st plaintiff and father of plaintiffs 2, 3 and 4. In other words, the property is a joint family property of the plaintiffs 1 to 4, and they have common interest in the property as well as in the result of the suit. There are no individual shares that are being claimed by the plaintiffs and, for all purposes of the reliefs claimed in the suit, there is no conflict of interest among the plaintiffs.
From out of the judgments cited by the learned counsel for the petitioners, the judgment of the Calcutta High Court reported in Himangshu Bhusan Kar (1 supra) is directly on the point. The Calcutta High Court, while considering the three points that were urged, and while answering the second point with respect to the issue that on account of death of one of the plaintiffs, during the pendency of the ejectment suit, whether there was an abatement so far as he was 5 crp_602, 605 & 606_2020 CKR, J concerned as there was no substitution in his place within the time allowed by law, and whether it would result in abatement of the suit proceedings and thus the decree passed is a nullity?". The said point was answered in the negative by the Court with a cogent reasoning, and further held that there is no question of abatement when the case falls within the terms of Rule 2 of Order 22 of CPC, and the act of not-bringing to the notice of the Court about the death of plaintiff when the decree was passed is a mere irregularity and the same cannot have the effect of making the decree as one without jurisdiction. It is well settled that a decree passed in favour of a dead person is not a nullity although a decree made against a dead person is a nullity.
To the same effect is the judgment of the Supreme Court in Mohd. Hussain (2 supra), wherein the Hon' ble Supreme Court had categorically held, in the facts of the said case, that even assuming that two of the married daughters of the plaintiff were necessary parties, their interest in the estate of their father was held to be sufficiently represented by their two brothers who are on record.
Applying the said principle to the present set of facts, there is no dispute that the suit is filed with respect to joint family property seeking declaration of their right and for recovery of possession and in that view of the matter, the interest of the deceased 3rd plaintiff can be said to be represented by other surviving plaintiffs.
To the same effect is the judgment of Supreme Court in Pratap Karan (3 supra). In the said judgment, reliance was placed extensively on the various earlier judgments interpreting Order 22, more particularly, the observations in the 5-Judges Constitution Bench judgment in Sardar 6 crp_602, 605 & 606_2020 CKR, J Amarjit Singh Kalra v. Pramod Gupta9. In paragraph 39 of the said judgment, it was held as under:
"... The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice."
It was further held in paragraph 39 of Pratap Karan (3 supra) as under:
"... A number of people, more for the sake of convenience, may be counseled to join together to ventilate, all their separate but similar nature of claims and this also should not result in the claims of all such others being rejected merely because one or the other of such claims by one or more of the parties abated on account of death and consequent omission to bring on record the legal heirs of the deceased party. At times, one or the other parties on either side in a litigation involving several claims or more than one, pertaining to their individual rights may settle among themselves the dispute to the extent their share or proportion of rights is concerned and may drop out of contest, bringing even the proceedings to a conclusion so far as they are concerned. If all such moves are allowed to boomerang adversely on the rights of the remaining parties even to contest and have their claims adjudicated on merits, it would be a travesty of administration of justice itself."
In paragraph 40 of Pratap Karan (3 supra), it was categorically held as under:
"... Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. We are, therefore, of the view that by reason of non-substitution of the legal representative(s) of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated. Remaining sharers, having definite sharers in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do not find any 9 (2003) 3 SCC 272 7 crp_602, 605 & 606_2020 CKR, J reason to agree with the submission made by the learned counsel appearing for the appellants."
In the light of the authoritative pronouncements in the judgments of the Courts referred to above, the question No.1 is required to be answered in the negative holding that merely on account of the death of 3rd plaintiff, there is no abatement of the suit proceedings. The judgments cited by the counsel for the petitioners/plaintiffs/decree holders were rejected by the learned XI Additional Chief Judge in a perfunctory manner by merely stating that the applications are not maintainable.
So far as question No.2 is concerned, the judgment of the Supreme Court in Tilak Raj (5 supra), the judgment of Punjab and Haryana High Court in Chetin Gir (6 supra), and Goverdhan Dass (7 supra), and the Division Bench judgment of the Madhya Pradesh High Court in Dwarkaprasad (8 supra), in essence, categorically held that Sections 152 and 153 of CPC give ample powers to the Court to correct any mistake even in decrees.
In the facts of the present case, it may be noted that there is no dispute that all the plaintiffs are in USA and they were represented by plaintiff No.4 by virtue of GPA executed in his favour. On behalf of the plaintiffs, the arguments were concluded on 22.02.2019; and on 08.03.2019, the arguments were advanced by the defendants counsel and the matter was reserved for judgment on the same day. It may be noted that the 4th plaintiff is a corporate entity represented by its Managing Director and there was no material to come to the conclusion that as a matter of fact that the 4th plaintiff was aware of the death of 3rd plaintiff on 26.02.2019.
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On the other hand, the respondents filed CCCA No.310 of 2019 on 05.08.2019, who having been aware of IA(SR) Nos.2323, 2322 and 2324 of 2019 filed on 24.04.2019 did not choose to mention that there was no appeal pending against the judgment and decree in the suit as on 24.04.2019. Further in view of the legal principles as settled in the aforestated judgments that the suit would not abate on account of the death of one of the plaintiffs, it can be safely said that there cannot be any objection with respect to ordering IA(SR) No.2323 of 2019 filed to bring on record the legal representatives of deceased plaintiff No.3, and also ordering the other two applications i.e., I.A(SR) Nos.2322 and 2324 of 2019 being for consequential reliefs.
In the light of the above, the CRP No.606 of 2020 is allowed. Consequently, CRP Nos.602 and 605 of 2020 also stand allowed. No costs. Miscellaneous petitions, if any pending, shall stand disposed of.
____________________
CHALLA KODANDA RAM, J
30th July, 2021
ksm
9 crp_602, 605 & 606_2020
CKR, J
THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM
CIVIL REVISION PETITION Nos.602, 605 and 606 of 2020 30th July, 2021 ksm