Shri Sarveshwari Smooh Kustha ... vs Sidhharth Gautam Ram & 3 Others
2017 Latest Caselaw 3707 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 
Case :- FIRST APPEAL FROM ORDER No. - 2387 of 2017
 
Appellant :- Shri Sarveshwari Smooh Kustha Seva Ashram & 2 Others
 
Respondent :- Sidhharth Gautam Ram & 3 Others
 
Counsel for Appellant :- C.K.Parekh
 
Counsel for Respondent :- Javed Husain Khan
 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed under Section 104 Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code') read with Order 43 Rule 1 (k) read with Rule (l) of the Code, against the order dated 22.04.2017 passed by the Additional District Judge, Varanasi, in Original Suit No. 265 of 1993. By that order the Additional District Judge has rejected the application of the appellant seeking permission to continue original suit no. 265 of 1993 (paper no. 1183 Ga) after the death of Tej Pratap. He has also rejected the application filed by the present appellant to amend the plaint (paper no. 1194 Ga). Also, by the same order, the Additional District Judge, Varanasi has declared the suit abated on application filed in that regard by the respondent defendant (paper no. 1183 Ga).

At the outset, learned counsel for the respondent-defendant has raised a preliminary objection as to the maintainability of the present appeal. According to him the suit proceedings have been declared to have abated on the reasoning that the right to sue did not survive on the death of Tej Pratap. Therefore, he submits, the declaration of abatement is a consequence of determination of right of the parties involves determination of all or any matter in controversy in the suit. Consequently, he submits that the order dated 22.4.2017 is a decree as defined under Section 2(2) of the Code. Therefore, it is appealable as a decree under Section 96 of the Code and the present FAFO does not lie.

In support of his submission, learned counsel for the respondent-defendant relies on a judgement of the Supreme Court in the case of Mangluram Dewangan Vs. Surendra Singh and others reported in (2011) 12 SCC 773. Also he relied on certain other decision being Gulzar Shah and another Vs. Sardar Ali Shah, AIR 1930 Lah. 703, Kalloo Chaudhari and others Vs. Ramzan and others AIR 1943 Oudh 14 (DB), Syedna Taher Saifuddin Saheb Vs. State of Bombay AIR 1958 SC 253, Mitthulal and others Vs. Badri Prasad and others AIR 1981 M.P. 1 (FB), Anna Tatoba Jadhav and others Vs. Anna Bhau Chougule and others AIR 1982 Bombay 174, Goutami Devi Sitamony Vs. Madhavan Sivarajan AIR 1977 Kerala 83 (FB), Muthalammal Vs. Veeraraghavalu Nayudu and others AIR 1953 Madaras 202 and Mohunt Ratan Narayan Giri Vs. Ashutosh Nundy and others AIR 1940 Calcutta 383.

Responding to the above, learned counsel for the appellant submits that the appeal is wholly maintainable in view of the fact that the order impugned in the present appeal falls in the exception clause of Section 2 (2) of the Code. It is thus an adjudication from which the appeal lies as an appeal from an order under Order 43 Rule 1 (l) being an order rejecting an application under Rule 10 of Order 22 of the Code. By that order, learned Additional District Judge has refused to give leave to the present appellant to continue the suit, upon the death of Tej Pratap.

In this regard, it is seen that the Original Suit No. 265 of 1993 was instituted by Shri Sarveshwari Smooh Kustha Seva Ashram, Rajghat Parao, Varanasi through President, Tej Pratap son of Shri Hari Sinha resident of Sri Sarveshwari Smooh Avadhoot Bhawan Kustha Seva Ashram Parao, Varanasi by describing himself as president of that entity. The relief claimed in the suit is to allow plaintiff no. 2 to function as the president of plaintiff no. 1 and to allow for a decree for permanent injunction against the respondent-defendant from causing any interference or obstruction in the management of the plaintiff no.1. It is not disputed by the appellant that the aforesaid suit was instituted through late Tej Pratap, who expired on 01.08.2016.

Upon the death of Tej Pratap, on or about 15.10.2016 the present appellant who is father of the deceased Tej Pratap filed the application under Order 22 Rule 10 of the Code supported by an affidavit. It was numbered as Paper No. 1188 Ga with prayer to the effect that the appellant to be permitted to continue the aforesaid suit in place of deceased Tej Pratap.

This application was opposed by the respondent-defendant, stating "averments made in application 1188A are not admitted and require to be proved accordingly at this stage application for substitution simplicitor can be allowed, if this Hon'ble Court thinks it proper, subject to objection of this Opposite Party".

It also appears, the defendant-respondent then filed a separate application which was numbered as paper no. 1183 Ga to declare the suit abated.

By the impugned order, learned trial court framed two questions. (i), whether on the death of Tej Pratap the right to sue survives and (ii) the effect of will document dated 26.08.1993 executed by the deceased Tej Pratap in favour of his father Hari Sinha.

The Trial Court, has recorded a finding that right to sue did not survive upon the death of Tej Pratap. Therefore, in the opinion of learned Trial Court, the suit proceedings abated and also as a consequence of the conclusion drawn by the trial court that the right to sue did not survive, he rejected the application filed by the present appellant for being granted leave to continue the suit and to amend the plaint.

Thus, learned Trial court first reasoned that the right to sue did not survive upon the death of Tej Pratap. As a result of this reasoning two consequences followed. First, it refused to the present appellant, leave to continue the suit. Resultantly, it rejected the application of the present appellant to amend the plaint. Second, the trial court declared the suit proceedings to have abated.

The present appeal does question the correctness of the reasoning of the trial court that the right to sue did not survive upon the death of Tej Pratap. Insofar as to the merit of the reasoning is concerned, the same may be examined only, if it is found the present appeal is maintainable. If it is found the present appeal is not maintainable, there would be no jurisdiction to examine the correctness of the conclusion drawn by the trial court that the right to sue did not survive. If on the other hand, the present appeal is found to be maintainable, then, correctness of the aforesaid conclusion would be tested in the present appeal.

In support of his objection learned senior counsel appearing for the respondent-defendant has addressed the Court at length on the nature of rights involved in the suit to submit the right to sue did not survive.

He has relied on a judgment of Lahore High Court in the case of Gulzar Shah and another Vs. Sardar Ali Shah AIR 1930 LAH 703 to submit, succession to the office of 'gaddi nashin' and 'mutwalli' of a 'dera' is not a hereditary right and therefore, the heir and legal representative of the deceased 'gaddi nashin and mutwalli' cannot be regarded as his legal representative for continuing an appeal filed by the deceased 'gaddi nashin and mutwalli', in that capacity.

He then relied on another judgment of Oudh Chief Court, in the case of Kalloo Chaudhari and Ors. Vs. Ramzan and Ors. reported in AIR 1943 Oudh 14 wherein it was held, upon the death of 'juraman kabaria' against his ex-communication by a meeting of the 'Biradari' could not be continued by his legal representative because the right to sue did not survive.

He also relied on another judgment in the case of Syedna Taher Saifuddin Saheb Vs. State of Bombay reported in AIR 1958 SC 253 again involving the right to sue where in a suit, the challenge was made to an action personal to the plaintiff, on his death, nothing further survived to be adjudicated in appeal.

In respect of maintainability of the appeal, he has first relied on the decision of the Supreme Court in the case of Mangluram Dewangan Vs. Surendra Singh and others reported in (2011) 12 SCC 773. It which was a case arising under Order 22 Rule 3 of the Code. In that case one Prannath had filed a suit for declaration, possession and damages in respect of immovable property. Upon the death of plaintiff Prannath during the pendency of the suit, the appellant Mangluram Dewangan filed an application under Order 22 Rule 3 of the Code claiming to be the sole legatee of the deceased plaintiff under a registered will-deed. Upon contest, the Trial Court disbelieved the will and rejected the application made under Order 22 Rule 3 of the Code.

It was against the aforesaid order of rejection of application made under Order 22 Rule 3 of the Code, the appellant Mangluram Dewangan filed a regular appeal. It appears the objection was raised as to maintainability to regular appeal filed under Section 96 of the Code. The appeal court repelled the objection and held that rejection of application under Order 22 Rule 3 of the Code would fall within the definition of decree under Section 2(2) of the Code. On merits, the appeal court reversed the decision of the trial court and remanded the matter for a decision afresh.

It was against such an order passed by the lower appellate court that a further appeal was preferred to the High court under Order 43 Rule 1 (u) of the Code to the High Court Chhattisgarh, which was allowed by the High Court on a view that the regular appeal filed against rejection of an application under Order 22 Rule 3 of the Code was not maintainable because such an order was not a decree under Section 2(2) of the Code.

Upon further appeal, the Supreme Court reversed the decision of the High Court. The Supreme Court analyzed the provision of Order 22 Rules 1, 3, 5 and 9 of the Code and summarized the principles as below.

"A combined reading of the several provisions of Order 22 of the Code makes the following position clear:

(a) When the sole plaintiff dies and the right to sue survives, on an application made in that behalf, the court shall cause the legal representative of the deceased plaintiff to be brought on record and proceed with the suit.

(b) If the court holds that the right to sue does not survive on the death of the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code.

(c) Even where the right to sue survives, if no application is made for making the legal representative a party to the suit, within the time limited by law (that is a period of 90 days from the date of death of the plaintiff prescribed for making an application to make the legal representative a party under Article 120 of the Limitation Act, 1963), the suit abates, as per Rule 3(2) of Order 22 of the Code.

(d) Abatement occurs as a legal consequence of (i) court holding that the right to sue does not survive; or (ii) no application being made by any legal representative of the deceased plaintiff to come on record and continue the suit. Abatement is not dependent upon any formal order of the court that the suit has abated.

(e) Even though a formal order declaring the abatement is not necessary when the suit abates, as the proceedings in the suit are likely to linger and will not be closed without a formal order of the court, the court is usually to make an order recording that the suit has abated, or dismiss the suit by reason of abatement under Order 22 of the Code.

(f) Where a suit abates or where the suit is dismissed, any person claiming to be the legal representative of the deceased plaintiff may apply for setting aside the abatement or dismissal of the suit under Order 22 Rule 9 (2) of the Code. If sufficient cause is shown, the court will set aside the abatement or dismissal. If however such application is dismissed, the order dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code.

(g) A person claiming to be the legal representative cannot make an application under rule 9(2) of order 22 for setting aside the abatement or dismissal, if he had already applied under order 22 Rule 3 for being brought on record within time and his application had been dismissed after an enquiry under Rule 5 of Order 22, on the ground that he is not the legal representative."

Then the Supreme Court further elaborated as below:

"We may next consider the remedies available to an applicant whose application under Order 22 Rule 3 of the Code, for being added as a party to the suit as legal representative of the deceased plaintiff, has been rejected. The normal remedies available under the Code whenever a civil court makes an order under the Code are as under:

(i) Where the order is a `decree' as defined under section 2(2) of the Code, an appeal would lie under section 96 of the Code (with a provision for a second appeal under section 100 of the Code).

(ii) When the order is not a `decree', but is an order which is one among those enumerated in section 104 or Rule 1 of Order 43, an appeal would lie under section 104 or under section 104 read with order 43, Rule 1 of the Code (without any provision for a second appeal).

(iii) If the order is neither a `decree', nor an appealable `order' enumerated in section 104 or Order 43 Rule 1, a revision would lie under section 115 of the Code, if it satisfies the requirements of that section."

In respect of Section 96 of the Code the Supreme Court observed as below:

"Section 96 of the Code provides that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such court. The word `decree' is defined under section 2(2) of the Code thus:

"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"

A reading of the definition of decree in Section 2(2) shows that the following essential requirements should be fulfilled if an order should be treated as a `decree' :

(i) there should be an adjudication in a suit;

(ii) the adjudication should result in a formal expression which is conclusive so far as the court expressing it;

(iii) the adjudication should determine the rights of parties with regard to all or any of the matters in controversy in the suit; and

(iv) the adjudication should be one from which an appeal does not lie as an appeal from an order (under section 104 and order 43 Rule 1 of the Code) nor should it be an order dismissing the suit for default".

(emphasis supplied)

Having thus analyzed the law, the Supreme Court then found that the order passed rejecting the application under Order 22 Rule 3 of the Code satisfied the requirement no. (i) and (ii) as above. In respect of requirement no. (iii) and especially (iv), the Supreme Court held that the order passed rejecting the application under Order 22 Rule 3 of the Code was not appealable either under Section 104 or Order 43 Rule 1 of the Code. Accordingly, it held such order to be not appeable as an order.

Then the Supreme Court further examined the nature and character of the order rejecting the application under Order 22 Rule 3 of the Code and held that since an order had been passed on the application of non- party requesting the Court to make him party as legal representative of the deceased, he would continue to be non-party till his application to be impleaded were allowed. Rejection of such application therefore, could not be categorized as an adjudication determining the rights of the parties to the suit with regard of all or any of the matter not on record of the suit. Accordingly, the Supreme Court held that such an order is not a decree and therefore, only a revision would lie against such an order.

To the above extent there is no quarrel at all between the parties. However, learned senior counsel appearing for the respondent-defendant has laid great emphasis on the observation of the Supreme Court in the later paragraph of that judgment wherein the Supreme Court has held as below:-

"But if an order declares that the suit has abated, or dismisses a suit not as a consequence of legal representatives filing any application to come on record, but in view of a finding that right to sue does not survive on the death of sole plaintiff, there is an adjudication determining the rights of parties in regard to all or any of the matters in controversy in the suit, and such order will be a decree."

He submits, after making the aforesaid observation the Supreme Court further made it clear that if the trial court while rejecting the application for impleadment declares the suit as abated because the right to sue does not survive, then it would amount to adjudication determining the rights of the parties in regard to all any of the matter in controversy in the suit and such order would be a decree.

He then has also relied on a full Bench decision of Madhya Pradesh High Court in the case of Mitthu Lal Vs. Badri Prasad reported in AIR 1981 MP 1 (FB) in that case, a full Bench of Madhaya Pradesh High Court had the occasion to examine whether the order or judgment under Order 22 Rule 3 and 5 is appealable or revisable. Again, the full Bench of Madhya Pradesh High Court had, in paragraph 5 of that judgment held, all orders of abatement are not decrees and only those orders of abatement are decrees in which the court comes to the conclusion, the right of sue did not survive on the death of the sole plaintiff.

Learned Senior Counsel appearing for respondent also relied on Anna Tatoba Jadhav and Ors. Vs. Anna Bhau Chougule and Ors. reported in AIR 1982 Bombay 174 wherein that Court considered the nature of an order passed on application filed under Order 22 Rule 4 of the Code. It held that in view of the fact, the trial court had rejected the application filed under Order 22 Rule 1 on the reasoning, the sue does not survive, the right of the applicant under Order 22 Rule 1 was wholly adjudicated upon. It accordingly held, only a regular appeal would be maintainable against such an order and it would not be appealable as under Order 41 Rule 1 of the Code.

Here in the facts of the present case learned senior counsel for the respondent-defendant submits, the trial court has specifically held that the right to sue did not survive upon the death of Tej Pratap and therefore, the declaration of abatement is final adjudication determining the rights of the parties. Therefore, it is a decree and only to regular appeal would lie.

Responding to the above objection, learned counsel for the appellant submits, and rightly so, the nature of rights involved in the suit is a question to be examined only after the preliminary objection is rejected. At present, only the nature of the order has to be examined in the context of the language of Order 22 Rule 10 of the Code to decide whether that order is a decree appealable in a regular appeal.

He then submits, the judgment of the Supreme Court in the case of Mangluram Dewangan Vs. Surendra Singh and Ors. reported in 2011 (12) SCC 773 learned counsel for the respondent is wholly distinguishable in view of the fact, in that case, the Supreme Court only considered the provisions of the Rules 1,3,5 and 9 of Order 22 and in the context of an application made under Order 22 Rule 3 of CPC. According to him that Rule is to be applied in case of death one or sole plaintiff to provide for substitution of such deceased plaintiff by his legal representative, if the right to sue survives.

On the other hand, he submits, Order 22 Rule 10 provides for situation involving assignment, creation or devolution of any interest during the pendency of a suit. According to him, the present case involves devolution or creating of interest by the deceased plaintiff by his will deed dated 26.08.1983. Upon the death of that plaintiff, the present appellant therefore, applied for leave to continue the suit claiming the creation or devolution or interest in his favour, by the plaintiff.

He then submits, the present appellant had not claimed to be substituted in the suit proceedings in place of the deceased plaintiff and therefore, his application was neither filed under Order 22 Rule 3 of the Code nor it be treated to have been filed under those provisions. It has not been treated to have been filed under those provisions.

He then relies on the same judgment as relied upon by learned Senior Counsel in the case of Mangluram Dewangan (supra) and points out, that judgment considered provisions of Order 22 Rule 1, 3, 5 and 9 of Order 22 only, which fact was expressly made clear by the Supreme Court. The Supreme Court made it clear in the context of an order passed under Order 22 Rule 3, normally proper remedy would be to either file an appeal if the order is a decree or; to file an appeal from order if its order enumerated under Section 104 or Rule 1 of Order 43 of the Code or; to file a revision, if the order was neither appealable as decree nor it was appealable as an order.

Thereafter, the Supreme Court further considered the nature and character of the order that was under consideration in that case - being an order rejecting an application under Order 22 Rule 3 of the Code. It is in that context, the Supreme Court examined whether (i) order passed under Order 22 Rule 3 makes adjudication in the suit; (ii) adjudication results in a formal expression which is conclusive; (iii) adjudication determines the right of the parties with regard to all or any matters in controversy in the suit; (iv) adjudication should be one from which an appeal does not lie as an appeal from order.

Therefore, learned counsel for the appellant submits, even if the first three conditions laid down by the Supreme Court are held to be satisfied in this case, the order impugned in the present appeal and the impugned order would be one which adjudicates or determines the rights of the present appellant. It would be a decree, in so far as the trial court has held, the right of sue did not survive to the present appellant. Still, in view of the decision of the Supreme Court, even if the order passed under Order 22 Rule 10 is a decree, would continue to be appealable as an order passed under Order 43 Rule 1 (l) of the Code.

Having considered the arguments so advanced, it appears, the nature of the right claimed in the suit are not relevant or required to be examined at this stage while examining the objection as to maintainability of the present appeal.

For this purpose, it is assumed, learned senior counsel appearing for the respondent-defendants is right in his submission that the trial court has rejected the application made by the appellant under Order 22 Rule 10 of the Code, for the reason right to sue did not survive. Still, that would be an issue to be tested on merits but the same cannot be cited as a ground or reason to hold that the present appeal is not maintainable.

In view of clear language of the Order 43 Rule 1(l) of the Code an order under Rule 10 of Order 22 of the Code refusing to give leave to pursue the suit is appealable as an order. That statutory right of appeal from order exists irrespective of and it is not conditioned by reason for rejection of such application. Thus, necessary consequence would be, irrespective of reason given by the trial court to reject the application made under Order 22 Rule 10 of the Code, the remedy against such an order would remain under Order 43 Rule 1 (l) of the Code, by virtue of express exclusion contained in clause (a) to section 2 (2) of the Code.

The judgment of the Supreme Court relied upon by learned senior counsel appearing of the respondent-defendants is distinguishable. In fact that judgment itself drew the distinction to be maintained by first specifically stating, the controversy in that case was with reference to provisions of Order 22 Rule 1, 3, 5 and 9 only. Thereafter, it was further clarified by that Court while discussing the meaning of decree as defined under Section 2(2) of the Code. There, it was made clear any decree that is specifically made appealable (under the Code) would, on deemed basis, be excluded from being treated as a decree.

Thus, the reasoning of the Supreme Court that for the purpose of an application made under Order 22 Rule 1, 3, 5 and 9 rejection on the ground of right to sue not surviving the death of the plaintiff may result in a decree that may be appealable as regular appeal, has to be confined to the facts of cases where the order containing such reasoning arises under those provisions as admittedly, orders falling under those provisions are not appealable under the Code.

Here in the instant case, there is no dispute that the application decided by the learned trial court was an application under Order 22 Rule 10 of the Code which is specifically made appealable under Order 43 Rule 1(l) of the Code. Accordingly, following the decision of the Supreme Court in the case of Mangluram Dewangan Vs. Surendra Singh and Ors. (supra) the preliminary objection raised by learned senior counsel for the respondent defendants as to maintainability of this appeal is rejected.

Accordingly, the present first appeal from order is maintainable.

Put for admission on 04.09.2017.

Order dated:28.08.2017

Lbm/-