Santosh & Others vs Chiraunji Lal & Others
2012 Latest Caselaw 3678 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved.
 
Court No. - 28
 

 

 
Case :- WRIT - C No. - 53970 of 2007
 

 
Petitioner :- Santosh & Others
 
Respondent :- Chiraunji Lal & Others
 
Petitioner Counsel :- Anil Kumar Bajpai
 
Respondent Counsel :- Santosh Kr. Tiwari,Sc
 

 
Hon'ble Sunil Hali,J.

The question that calls for consideration in this writ petition is as to whether on the death of one of appellant would the appeal abate in case it is found that the other appellants have distinct, separate and independent right of their own even if there was a joint decree passed by the Trial Court against them.

In order to appreciate this controversy certain facts are required to be noted:

A suit for permanent prohibitory injunction was filed by the plaintiffs-petitioners against the present defendants-respondents in respect of Plot No. 17, measuring area 2 biswa and 5 dhoor before the Munsif, West, Allahabad. Trial Court passed the decree in favour of plaintiffs-petitioners against which an appeal was preferred before the Addl. District Judge, Allahabad. During pendency of the appeal one of the appellant Sudama died in the year 1989 and no application for substitution was filed either by appellants or by the respondents. An application was filed by one Smt Imarti Devi for substitution along with an application under Section 5 of the Limitation Act for condoning the delay and after hearing the parties the Court dismissed the application and directed that the appeal would abate in so far as the deceased Sudama was concerned, however, the appeal was allowed to proceed in so far as other appellants are concerned. An application was filed by the present petitioners on 10.1.2005 that the appeal as a whole has to abate. Appellate Court after hearing the parties dismissed the application and directed that the appeal would not abate so far as other appellants are concerned. It is this order which is subject matter of challenge before this Court.

In order to appreciate the legal position it shall be relevant to mention the nature and character of the suit.

The dispute in the suit was that the defendants had taken illegal possession of the land in dispute and were required to be restrained from interfering with the peaceful possession of the plaintiffs as the father of the plaintiffs had purchased the disputed land and constructed houses on the said land. It was contended that the defendants had no right, title and interest over the disputed land by seeking possession over the northern portion of the said land.

On the other hand stand of the defendants respondents was that the plaintiffs had no relation with the disputed land and same was part of the plot No. 19 belonging to the defendants who were in possession of the said land. It is on account of wrong demarcation that the plaintiffs were claiming their right over the said land.

It is further contended that plot No. 19 was ancestral property of the defendants. It further reveals from the record that the defendants came from different ancestors. Details of which are given herein below:-

(I) Defendants No. 1 & 2 namely Chiraunji and Rangi Lal are sons of Sheetal.

(ii) Defendant No. 3 Ramesh is son of Bachhu Lal;

(iii) Defendant No. 4 Mukund Lal is son of Panna Lal and

(iv) Defendat No. 5 Sudama was son of Chotte Lal.

It was further stated by the appellants that the claim to the ancestral land Plot No. 19 was in respect of their respective undivided shares. Any decree for permanent injunction restraining the defendants appellants-respondents from interfering in the possession of the plaintiffs would be severable and separable and not inseparable and so intermingled as would result in contradictory decrees in case it abates against the deceased appellant and while it is allowed against other appellants.

In order to appreciate this controversy, it is necessary to examine the import of Order XXII Rule 1 to 4 CPC. Order XXII Rule 1 of the 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 several plaintiffs or defendants dies and right to sue survives. Order XXII Rule 3 of the CPC deals with procedure in case of death of one of several plaintiffs or of sole plaintiff. Order XXII Rule 4 of the CPC, however, deals with procedure in case of death of one of several defendants or of sole defendant. For understanding the issue raised before us in this appeal, it would be convenient at this stage to reproduce Order XXII Rule 4 of the CPC, which runs as under :-

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(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.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has filed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

A bare perusal of the provisions under Order XXII Rule 4(3) of the CPC would clearly show that where within the time limited by law, no application is made under sub-rule 1, the suit shall abate as against the deceased defendant. However, this is subject to Order XXII Rule 4(4) of the CPC

The import of aforesaid provisions would reveal that the appeal would not abate if right to sue of the appellants survive.

Case set out by the petitioners is that since the property in question is jointly held by the parties and is not severable right to sue would not survive in case of other appellants.

On the other hand stand of the defendants is that the deceased appellant did not represent the entire interest. It is only to the extent of his own shares as such right to sue will survive. Order XXII Rule 4 CPC does not provide that by omission to provide to implead the legal representative of a defendant the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case. Suit will abate only as regards the particular interest of the deceased party.

In the present case, properties are claimed by the defendants to be ancestral with definite shares. It is not the case of the plaintiff that the deceased defendant represent the entire interest of the said property. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.

From the aforesaid discussion, it is apparently clear that all the defendants having the different ancestors did not represent the whole interest of the property but to the extent of their shares. As such, their rights were separable and distinct. In the case Sant Singh & Anr. v. Gulab Singh & Ors. reported in [AIR 1928 Lahore 573], it has been held as under:-

"Under Order 22 Rule 4 (3) read with Order 22 Rule 11 CPC where no application is made to implead the legal representative of the deceased respondent, the appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a nature that the absence of the legal representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died."

"The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties."

It was further held in the said judgment as under:-

"A distinction must be made between the cases in which there is specification of shares or interests, and those in which there is no specification of interests. That in cases where there is a specification of share or interest, the appeal cannot abate as a whole. That in such cases, the appeal abates only in respect of the interest of the deceased respondent and not as a whole."

To the same effect is the ratio of the judgment of the Hon'ble Apex Court in the case of S. Amarjit Singh Kalra and others Vs Smt Pramod Gupta and others, reported in AIR 2003 SC 2588, relied upon by the learned counsel for the petitioners, in which it has been held that existence of a joint right as distinguished from tenancy-in-common alone is not the criteria but the joint character of the decree de-hors relationship of the parties inter-se and the frame of the appeal will take colour from the nature of the decree challenged. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice. A careful reading of Order 22 CPC would support the view that the said provisions were devised to ensure continuation and culmination in an effective adjudication. It was further observed that the mere fact that a khata was a joint khata was not relevant for deciding the question of abatement under Order 22, as long as each of the appellants had their own independent, distinct and separate shares in the property. It was held that wherever the plaintiffs are found to have distinct, separate and independent rights of their own, joined together for sake of convenience in a single suit, the decree passed by the Court is to be viewed in substance as the combination of several decrees in favour of one or the other party and not as the joint decree. The question as to whether the decree is joint and inseverable or joint and severable has to be decided, for the purposes of abatement with reference to the fact as to whether the decree passed in the proceedings vis-`-vis the remaining parties would suffer the vice of inconsistent decrees or conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree only when two decrees are incapable of enforcement and that enforcement of one would negate the enforcement of the other

In S. Amarjit Singh Kalra and others Vs Smt Pramod Gupta and others (Supra) where several claimants in a land acquisition proceedings jointly filed a petition before the court concerned and it was held that death of one of the claimants will not have impact on the claim of the other claimants. It needs to be noticed that in the said case the claim of each of the claimants was independent and distinct and there was nothing in common except that they are all sought enhancement of compensation. It was in that context, it was held that the proceedings should continue by the other claimants even though one of the claimants is not there. It is significant to notice paragraph 34 of the judgment, which reads as follows:

"(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.

(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.

(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.

(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgement/decree passed in the proceedings vis--vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other."

Applying this principle in the present case, it would be seen that the principle laid down by the Hon'ble Apex Court in the case (supra) is that even if the parties are grouped together as in the present case in one suit it would not impact the right of the other appellants. Once it is established that they have distinct and separate independent right of their own. This in law would construe as a decree or an order which would be construed as combination of several decrees in favour of one or other parties and not as joint or inseverable parties. Appeal would abate only to the extent of the shares of the deceased Sudama.

In the light of the aforesaid discussion, I find no force in this writ petition. The writ petition lacks merit and is hereby dismissed.

Order Date :-    24.08.2012
 
RKS/