Ram Sanehi vs D.D.C.And Others
2016 Latest Caselaw 2249 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 18
 
Case :- CONSOLIDATION No. - 926 of 1993
 
Petitioner :- Ram Sanehi
 
Respondent :- D.D.C.And Others
 
Counsel for Petitioner :- Raj Kumar Verma,G.K.Pandey,R.N. Gupta,R.P.Pandey,R.Prasad,Vashu Deo Mishra
 
Counsel for Respondent :- C.S.C.,A.K.Shukla,G.S.Nigam,J.P.Yadav,Narvind Kumar Singh
 
Hon'ble Anil Kumar,J.

Heard learned counsel for the petitioner, learned Standing Counsel as well as Jai Prakash Yadav, learned counsel for the opposite party and perused the record.

Facts in brief of the present case are that before Deputy Director of Consolidation, in a proceeding under Section 48 (2) of U. P. Consolidation of Holdings Act, two revisions, namely, Revision Nos.152/228/408 and 935 were filed, allowed by order dated 01.10.1993, the said authority has allowed the revisions and thereafter the chaks in pursuance to the said order have been altered between Badri and Ram Sanehi/petitioner.

As during the intervening period from the date of passing of the order dated 01.10.1993 passed by Deputy Director of Consolidation, Hardoi and filing of the present writ petition challenging the same, Badri died. So his sons, namely, Ram Shanker and Ghasi Ram have been impleaded as opposite party nos.2 and 3 by the petitioner while challenging the order dated 01.10.1993 in the instant matter.

On 24.02.2012, this Court has passed an order reads as under :-

"Heard learned counsel for the parties.

This is an application for substitution of the legal heirs of opposite party no.2, Ram Shanker moved after the delay of about 15 years. The information in regard to the death of opposite party no.2 came on record on 22.3.1996, but in spite of that no steps were taken by the petitioner to substitute the heirs of opposite party no.2. There is enormous delay in moving the substitution application and the delay has not been properly explained in moving the application. A false pretext has been set up that the papers were handed to the earlier counsel and he did not move the application in time. It is a common practice that such defences are set up when there is enormous delay and blame is shifted to other counsel.

In the aforesaid circumstances, the application is rejected and the writ petition abates against the opposite party no.2.

List the petition after two weeks."

Order dated 24.02.2012 challenged by the petitioner by filing Special Leave to Appeal (Civil) No.17842/2012 before Hon'ble the Apex Court.

On 07.01.2013, an order was passed which reads as under :-

"Heard learned senior counsel appearing for petitioner and perused the relevant material.

We do not find any valid and legal ground for interference.

The special leave petition is dismissed."

Thus, writ petition is abated against the opposite party no.2.

Accordingly, Shri Jai Prakash Yadav, learned counsel for the opposite party no.3 raised a preliminary objection that once the writ petition has been abated against the opposite party no.2 and in pursuance to the impugned order challenged in the present case, chaks have already been altered between the Badri (father of opposite party nos.2 and 3) and petitioner. So, once the present writ petition which dismissed as abated against the opposite party no.2 is also liable to be dismissed as abated against the opposite party no.3. In support of his argument, he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Jaladi Suguna (Deceased) through LRs. vs. Satya Sai Central Trust and others 2009 (27) LCD 230 wherein paragraph nos.12 and 16 read as under :-

"Legal representative' according to its definition in section 2(11) of CPC, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. Thus a legatee under a will, who intends to represent the estate of the deceased testator, being an intermeddler with the estate of the deceased, will be a legal representative.

The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record."

Learned counsel for the petitioner while opposing the said contention raised on behalf of opposite party no.3 submits that keeping in view the provisions as provided under Order 22 Rule 1 read with Rule 2 CPC, right to sue in the present case will survive and the present writ petition shall be heard and decided on merit. In support of his argument, he has placed reliance on the judgment given by this Court in the case of Smt. Siya Dulari vs. Additional Commissioner, Lucknow and others 2012 (30) LCD 2152, relevant portion of the same is quoted herein below :-

"Subject matter of substitution of legal heirs of the parties to a suit or a proceeding has been dealt with in Order 22 of the Code of Civil Procedure (hereinafter referred to as the Code). Though the provisions of Code of Civil Procedure are not applicable strictly to the writ proceedings, however, broad principles laid down in the Code are guiding factor for the Court to proceed in a case. Order 22 Rule 3 gives a procedure in case of death of one of several plaintiffs or of sole plaintiff. According to the said provision, where a sole plaintiff in a suit dies and the right to sue survives, the Court on an application made in that behalf shall cause the legal representative of the deceased-plaintiff to be made a party and shall proceed with the case. Sub Rule 2 of Rule 3 further provides that if no application for substitution is made within time prescribed by law, the suit shall abate so far as the deceased-plaintiff is concerned. However, Order 22 Rule 9 provides that under certain circumstances, if the legal representative of the deceased-petitioner moves an application to set aside the abatement, the Court may set aside abatement upon such terms as to costs or otherwise as it thinks fit. It is these provisions of 22 and Rule 9 which have been invoked by the learned counsel appearing for the applicants, Sri R. D. Shahi. He submitted that since in the application moved seeking setting aside abatement of the writ petition, sufficient cause has been shown which prevented the applicants to move the application earlier, as such abatement of the writ petition be set aside and applicants be substituted in place of the deceased-petitioner and further that since sufficient reasons have been given in the application seeking recall of the order dated 6.07.2012, as such, the said order be recalled and writ petition be restored to its original number and be heard and decided on merits.

The Court may observe that provisions of Order 22 of the Code have not been devised by the legislature to penalize; rather they contain Rules of Procedure and substantial rights of the parties should not be defeated by adopting pedantic approach by observing the provisions strictly as to the procedural aspect of law. It is further noteworthy that the purpose of substitution is not to determine the respective claims on merit between the parties rather the very object of substitution is to allow a person to continue the litigation by representing the deceased party/person.

It has been held by Hon'ble Apex Court in the case of Krishna Singh vs. Mathura Ahir and others, AIR 1980 SC 707 that " the general rule is that all rights of action and all demands whatsoever, existing in favour of or against a person at the time of his death survive to or against his legal representative."

Two phrases occurring in Order 22 Rule 3 are relevant to be noted for deciding the objections raised on behalf of opposite party no.5 and these are; (1) "right to sue survives" and (2) "legal representative". The word "legal representative" has been defined in Section 2 (11) of the Code of Civil Procedure. The definition of legal representative given in the Code is as under:-

(11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"

It is noticeable that "legal representative" in the Code of Civil Procedure has been defined to mean a person who represents the estate of the deceased person and includes any person who intermeddles with the estate of the deceased. Thus, two sets of persons would constitute a "legal representative", namely, (1) those who can represent the estate of a deceased person in law and; (2) who intermeddle with the estate of the deceased. The first set of persons to constitute a "legal representative" of the deceased person will be his natural legal heirs and the second set of persons to constitute "legal representative" of the deceased person will be the persons who intermeddle with his estate. In this view, so far as the natural legal heirs are concerned, there is no doubt that they constitute "legal representative". In addition to the natural heirs, as per the definition of the word "legal representative" occurring in Section 2 (11) of the Code of Civil Procedure, the persons who intermeddle in the estate of the deceased, meaning thereby the persons on whom the right in the estate of the deceased is assigned by way of some legal mode, will also constitute "legal representative". Applying the meaning given to the word "legal representative" in Section 2 (11) of the Code of Civil Procedure to the facts of the instant case, what would emerge is that the applicants, who are the natural legal heirs of the deceased-petitioner-Smt. Siya Dulari, are her "legal representative". Since the rights in property in question have been assigned to Smt. Baby, daughter of Sri Sushil Kumar by the deceased petitioner through sale-deed dated 03.11.1998, as such, Smt. Baby, daughter of Sri Sushil Kumar would also be a "legal representative".

In order to decide the point in dispute, it will be appropriate to go through the provisions as provided under Order 22 Rule 1 and 2 CPC which reproduction reads as under :-

"Rule 1- The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

Rule 2 - Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants."

Order 22, Rule 1 of the Civil Procedure Code declares that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. The expression "right to sue" has not been defined any where in the Civil Procedure Code, but I take it that the expression means a right to ask for relief whether in the Court of first instance or in the higher Court.

Order 22 Rule 2 C.P.C. lays down that where there are more plaintiffs or more defendants than one, and any of them dies, and the right to sue survives either in favour of the remaining plaintiff or plaintiffs or against the remaining defendant or defendants alone an entry will be made by the Court that a party is dead and it will proceed with the disposal of the case before it. Rule 3 says that where the sole plaintiff or sole surviving plaintiff or one of two or more plaintiffs dies and the right to sue survives in favour of the legal representatives as well, the legal representative of the deceased plaintiff will be brought on the record. The penalty of not bringing the legal representative of the deceased plaintiff is specifically declared, and it is this, namely the suit shall abate so far as the deceased plaintiff is concerned Rule 4 applies to the case of defendants, and provides that where the sole defendant or sole surviving  defendant dies and right to sue survives against the legal representative as well, the legal representative of the deceased shall be brought on the record.

Accordingly, the crux of the whole matter is, how the words, "the right to sue" used in Rule 3(1) of Order 22 is to be interpreted.

In order to know the true meaning of these words and their proper construction, it is necessary to know first the scheme of Order 22 of the Code.

Order 22 of the Code deals with the effect of "Death, Marriage and Insolvency of parties" in pending suits. It distinguishes between cases in which "the right to sue" survives and those in which it does not. In the former class of cases, that is, where "the right to sue'' survives, the suit is allowed to be continued by or against the legal representatives of the deceased provided they are brought on the record within the statutory period of limitation. In the latter class of cases, that is, where "the right to sue'' does not survive, no question of continuance of the suit by any other person arises.

It will thus appear that Order 22 is really confined to questions of the continuance of the suit by virtue of the devolution of the deceased's 'right to sue' on other persons during the pendency of the suit; but there will be cases in which the suit can be continued by other persons who have independent 'right to sue' on the same cause of action. Order 22, therefore, contemplates cases of devolution of interest from some original party to the suit --whether plaintiff or defendant --upon some one else. The more ordinary cases are of death, marriage and insolvency, and then come the general provisions of Rule 10 for all other cases, but they are all cases of devolution.

Rule 1 Order 22 C.P.C. lays down that if "the right to sue" survives, there shall be no abatement of a suit by reason of the death of a plaintiff or a defendant. Rules 2, 3 and 4 deal with cases of devolution of interest on the death of a plaintiff or a defendant. Rule 7 deals with the case of creation of an interest in a husband on marriage. Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation or devolution of any interest other than those mentioned above. Rule 10 is not confined to devolution of interest by death.

Rule 3 speaks of two classes of cases (i) where one or two or more plaintiffs dies and "the right to sue" does not survive to the surviving plaintiff or plaintiffs alone, and, (ii) where a sole plaintiff or sole surviving plaintiff dies and "the right to sue" survives. In either case the legal representative of the deceased plaintiff ought to be made a party to the suit, for which purpose an application should be made to the Court, and, it must be made within 90 days from the date of the death of the deceased plaintiff, and, thereafter, the Court shall cause the legal representative of the deceased plaintiff to be made a party and shall then proceed with the suit. Sub-rule (2) of Rule 3 further provides that where no such application is made the suit shall abate so far as the deceased plaintiff is concerned.

It may be. mentioned that where the right to sue survives to the surviving plaintiff or plaintiffs alone, then Rule 2 applies, and, in such a case no application for substitution of the surviving plaintiff or plaintiffs in the place of the deceased plaintiff is necessary.

On the plain language of Rule 3, therefore, it is manifest that the true test to find out if Rule 3 applies is whether "the right to sue" survives or does not survive.

By Rule 11, the words 'plaintiff' 'defendant' and 'suit' include an appellant, respondent, and, an appeal respectively.

The provisions of Rule 3, therefore, apply not only to the case of a deceased plaintiff, but also to the case, of a deceased appellant. Where, therefore, one of two or more appellants dies and the right to appeal does not survive to the surviving appellant or appellants alone, as is the case here, or, where a sole appellant or sole surviving appellant dies, and, the right to appeal survives to his legal representative, who is not already on the record, the legal representative of the deceased appellant ought to be brought on the record by an application made under Rule 3, of Order 22, within the time allowed by law, and, if this is not done, the appeal shall abate so far as the deceased appellant is concerned.

The word "interest" in Rule 10 means interest in the property, the subject-matter of the suit. The 'interest', referred to in this Rule, is the interest of the person who was a party to the suit. The words 'any interest' are used in Rule 10 in a much wider sense, and, they include any transferable "right to sue" spoken of in the earlier Rules of the Order which provide for its devolution in case of death, and not merely an interest in tangible property.

The words 'during the pendency of a suit', used in Rule 10, mean before a final decree or order has been passed or made in the suit. Hence, the provisions of Rule 10 apply if the assignment, creation or devolution of interest takes before a final decree or order is passed or made in the suit. There is no power to make an order under Rule 10 after the final decree has been passed.

The right to sue' in Order 22, therefore, means the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death. Such a 'right to sue' is a vested right. On the above scheme of Order 22 o£ the Code, therefore, it is manifest that in order to find out whether Rule 3, or, Rule 10 of Order 22 would apply here, the real test to find out is, whether the right to sue survived, or, it did not survive.

In the instant matter, before Deputy Director of Consolidation, District-Harodi, in a revision, there is a dispute between Badri/father of opposite party nos.2 and 3 and the petitioner in respect to allotment of chaks. By order dated 01.10.1993, Deputy Director of Consolidation, District-Harodi allowed the revision and altered the chaks between Badri and the petitioner. After the death of Badri, chak have been altered between Badri and petitioner. Thereafter, the same was in possession of his two sons, namely, Ram Shanker and Ghasi Ram s/o late Shri Badri by way of succession.

During the pendency of the present writ petition, opposite party no.2/Ram Shanker son of late Badri died and by order dated 24.02.2012 writ petition stood as abated against him, confirmed by Hon'ble the Apex Court in Special Leave to Appeal (Civil) No.17842/2012. So, order dated 01.10.1993 passed by Deputy Director of Consolidation, District-Harodi in revision under challenge in the present writ petition attained finality against opposite party no.2/Ram Shanker. Once it is not in dispute, rather admitted position that the impugned order is no separable and on the basis of which the chak has been altered and the writ petition stood abated against opposite party no.3. So, the same is also liable to be dismissed as abated against the opposite party no.3.

For the foregoing reasons, the writ petition is dismissed as abated.

Order Date :- 5.5.2016/Mahesh