Calcutta High Court (Appellete Side)
Arati Sarkar @ Sarnakar & Ors vs Rabiya Bibi & Ors on 14 September, 2023
14.09.2023 IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Court
Item
: 04
: 10
APPELLATE SIDE
Matter : SAT
Status : OP
Bench ID
Transcriber
: 266048
: NANDY SA 45 of 2019
CAN 5 (7405) of 2018
CAN 8 of 2022
Arati Sarkar @ Sarnakar & Ors.
Vs.
Rabiya Bibi & Ors.
Mr. Amal Krishna Saha, Advocate
Mr. Debnath Mahata, Advocate
......for the Appellants/Petitioners
Mr. Gour Baran Sau, Advocate
......for the Respondent Nos. 2 & 4
1. The matter is listed before us at the instance of the
appellants even after the Second Appeal is
admitted because of the order dated 29.08.2022
passed by the Single Bench while hearing an
application being CAN 8 of 2022 wherein the
Single Bench opined that the left out heirs and
legal representatives of the deceased respondent
no. 1 cannot be added as respondents in the
instant appeal unless the order passed by the
Division Bench allowing an application being CAN
7393 of 2018 upon recording the death of the said
deceased on the score that the respondent nos. 2
and 3 are already on record as heirs and legal
representatives of the said deceased, is recalled by
the Division Bench.
2. The aforesaid application being CAN 8 of 2022 is
kept pending for such reason and a point is raised
before us as to whether the aforesaid application is
required to be kept in suspended animation until
the order passed by the Division Bench allowing
the earlier application upon recording the death of
the respondent no. 1 on the ground that the
respondent nos. 2 and 3 being the heirs and legal
representatives of the said deceased are already
on record, is recalled.
3. The prelude to the incorporation of the provisions
relating to substitution in the Code of Civil
Procedure is required to be recapitulated before
we embark our journey on the peripheral of the
aforesaid point indicated hereinabove. The Code of
Civil Procedure was enacted to consolidate and
amend the laws relating to the procedure of the
Court of a civil judicature which in no unequivocal
terms deals with certain substantive rights created
therein and the procedure to be adopted by the
Court in any legal proceeding. The Code of Civil
Procedure is divided broadly into two parts. The
first part is relatable to various sections creating a
substantive right into the person and the other
part relates to schedule, which is procedural in
nature.
4. There is no ambiguity in our mind that the
substantive part is regarded as a body of the Code
and the schedule denotes the procedure to be
adopted in any judicial proceeding instituted
before the Court where the said Code of Civil
Procedure is extended and/or applicable.
5. We are also not unmindful of the proposition of
law that the procedure is handmade of justice and
cannot be treated as jealous mistress or in other
words, to defeat the rights of the parties or to
bring rigidity to the same even when it is pitted
against the substantial justice. We are also not
unmindful of the proposition of law that some of
the procedural provisions can be held to be
mandatory depending upon the nature of the
provisions discerned from the language used
therein.
6. It is trite to mention that the litigations in the
country filed before different Courts takes longer
time to get it disposed of and the legislators were
conscious about the consequences that would
follow, and the events happened during the
pendency of such litigation. Precisely for such
reason, Order XXII of the Code of Civil Procedure
was incorporated to save the pending litigation
and avoidance to perish on the death of any of the
parties to the proceeding.
7. The first and foremost condition required for
bringing the legal representatives in place and
stead of the deceased party is that the right to sue
survives upon him/them as the legislators were
conscious that each and every person having no
nexus to the cause of the proceeding initiated by a
deceased may be brought as a party to embarrass
not only to the legal representatives but the
adversary against whom the claim was made. We
hasten to add that several provisions contained
under Order XXII of the Code is neutral in the
sense that it does not restrict the rights either on
the plaintiff or the defendant to apply for bringing
the legal representatives on record on the death of
the plaintiff or the defendant, as the case may be.
Either of the surviving parties to the proceeding or
even a legal representative can file an application
for bringing the legal representatives on record in
place and stead of the deceased party, be it plaintiff
or defendant.
8. The object is laudable to the effect that the
legislators did not conceive of perishing and/or
diminishing and/or defeating the rights of the
parties who died during the pendency of the
proceeding but to continue with such cause by
bringing the legal representatives provided the
right to sue survives. The legislators did not
include the word 'heir/heirs' in any of the Rules
within Order XXII but consciously mentioned the
words 'legal representatives' with intent to make it
broader and not to restrict only amongst the heirs
recognized under the law of inheritance. The
reason for the same can be deciphered from the
fact that the Code defines 'legal representative'
under Section 2(11) thereof to mean - 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.
9. The definition of a 'legal representative' is
expansive and engulfs within its folds not only the
heirs but a person who intermeddles with the
estate of the deceased. Any other restrictive
meaning has to be eschewed as it would be
opposed to the legislative intent.
10. The question, therefore, arises, who would be
regarded as legal representative in relation to an
estate of a deceased and if any such issues are
raised, the legislators have taken care of by
incorporating Order XXII Rule 5 of the Code which
confers power upon the Court to determine such
question, obviously before the Court decides to
proceed with the case.
11. There is no ambiguity in our mind that Order XXII
contained an exhaustive provision relating to
substitution and by virtue of Order XXII Rule 11 of
the Code such provision is extendable to the
Appellate Court as well. Order XXII Rule 9 of the
Code postulates that in the event, right to sue
survives and if the application is not taken out
within the period of limitation provided for
bringing the legal representatives in place and
stead of the deceased party it would attract
abatement of the suit/appeal having a resultant
effect of the dismissal of the suit depending upon
the nature of the claim where the Court before
perceiving that the suit or the appeal is abated,
requires a conscious application of mind in
conjunction with the relief claimed therein. In the
event, the relief cannot be granted in absence of
the legal representatives on any of the party to the
proceeding, it will invite abatement of the
suit/appeal as a whole but where the Court finds
that the relief can be granted in presence of the
surviving parties to the suit and if the segregation
is permissible, it may only invite an abatement
against the deceased.
12. It is no longer res integra that in the event, the
right to sue survives, it would not attract
abatement which is apparent from Order XXII Rule
1 of the Code provided the application for bringing
the legal representatives are filed within the
statutory period of limitation. It is somewhat
settled that if some of the legal representatives of
the deceased party are on record, it will not attract
abatement as the estate of the deceased party can
be sufficiently represented by them.
13. The doctrine of representation is a well recognized
legal concept in judicial parlance where a person
can represent the estate in its entirity in absence of
any legal representative provided he acts bona fide
to protect the interest of the estate of the deceased
and have not committed any fraud against the left
out legal representatives. The applicability of the
doctrine representation in the judicial system can
be seen from a three-Judge Bench decision of the
Supreme Court rendered in Daya Ram & Ors. Vs.
Shyam Sundari & Ors. reported in AIR 1965 SC
1049. The identical question arose therein,
whether the proceeding would abate in absence of
not bringing the entire set of legal representative
and the consequences to follow thereupon. In the
said case, upon the death of the party, some of the
legal representatives were brought on record at
the behest of the surviving party but later on it was
pointed out that some other legal representatives
have been left out and not impleaded as party
therein and, therefore, it would attract abatement.
The Apex Court held that Order XXII of the Code
does not refer the word 'heir' but consciously used
the expression 'legal representative' and,
therefore, the concept of heirship and the legal
representatives are distinct and separate. The
moment, some of the legal representatives are
already brought on record to avoid the penal
consequences of abatement of the proceeding, the
Court is not denuded of any power to bring the
other legal representatives on record by way of
addition in the following:-
(11) The case before us is entirely different. There was a
decree in favour of Shyam Sundari-and that is the subject-
matter of this appeal. The question is whether there has been
abatement of the appeal against Shyam Sundari. Shyam
Sundari's heirs have been brought on record within the time
allowed by law and the only question is whether the fact that
two of the legal representatives of Shyam Sundari have been
omitted to be brought on record would render the appeal
incompetent. This turns on the proper interpretation of 0. 22,
r. 4 of the Civil Procedure Code :
"4.(1) Where............... 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.
4. (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."
When this provision speaks of "legal representatives" is it
the intention of the legislature that unless each and every-
one of the legal representatives of the deceased defendants,
where these are several, is brought on record there is no
proper constitution of the suit or appeal, with the result that
the suit or appeal would abate? The almost universal
consensus of opinion of all the High Courts is that where a
plaintiff or an appellant after diligent and bona fide enquiry
ascertains who the legal representatives of a deceased
defendant or respondent are and brings them on record
within the time limited by law, there is no abatement of the
suit or appeal, that the impleaded legal representatives
sufficiently represent the estate of the deceased and the
decision obtained with them on record will bind not merely
those impleaded but the entire estate including those not
brought on record. The principle of this rule of law was thus
explained in an early decision of the Madras High Court
in Kadir v. Muthukrishna Ayyar. The facts of that case were
that when the defendant died the first defendant before the
Court was impleaded as his legal representative. The
impleaded person raised no objection that he was not the sole
legal representative of the deceased defendant and that there
were others who had also to be joined. In these circumstances,
the Court observed:
"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
defendant sufficiently represents the estate of the deceased
for the purposes of the suit 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's or may not
be the true legal representative."
This, in our opinion, correctly represents the law. It is
unnecessary, here, to consider the question whether the same
principle would apply when the person added is not the true
legal representative at all. 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. We have not been referred to any principle of
construction of 0. 22, r. 4 or of the law which would militate
against this view. This view of the law was approved and
followed by Sulaiman, Acting C.J. in Muhammiad Zafaryab
Khan v. Abdul Razzaq Khan(1). A similar view of the law has
been taken in Bombay-See Jehrabi Sadullakhan Mokasi v.
Bismillabi Sadruddin Kaji(2 )-as also in Patna-See Lilo Sonar
v. Jhagru Sahu (3) , and Shib Dutta Singh v. Sheikh Karim
Bakhslz (4 ) as well as. in Nagpur- Abdul Baki v. R. D. Bansilal
Abirchand Firm, Nagpur (5 ). The Lahore High Court has also
accepted the same view of the law-See Mst. Umrao Begum v.
Rehmat Ilahi(6). We are, therefore, clearly of the opinion that
the appeal has not abated.
(12) The next question is about the effect of the appellant
having omitted to include two of the heirs of Shyam Sundari, a
son and a daughter who admittedly had an interest in the
property, and the effect of this matter being brought to the
notice of the Court before the hearing of the appeal. The
decisions to which we have referred as well as certain others
have laid down, and we consider this also, correct, that
though the appeal has not abated, when once it is brought to
the notice of the Court hearing the appeal that some of the
legal representatives of the deceased respondent have not
been brought on record, and the appellant is thus made
aware of this default on his part, it would be his duty to bring
these others on record, so that the appeal could be properly
constituted. In other words, if the appellant should succeed in
the appeal it would be necessary for him to bring on record
these other representatives whom he has omitted to implead
originally. The result of this would be that the appeal would
have to be adjourned for the purpose of making the record
complete by impleading these two legal representatives
whom the appellant had omitted to bring on record in the
first instance. This is the course which we would have
followed but we had regard to the fact that the suit out of
which this appeal arises was commenced in 1939 and was still
pending quarter of a century later and having regard to this
feature we considered that unless we were satisfied that the
appellant had a case on the merits on which he could succeed,
it would not be necessary to adjourn the hearing for the
purpose of formally bringing on record the omitted legal
representatives. We therefore proceeded to hear the appeal
and as we were satisfied that it should fail on the merits we
did not think it necessary to make the record complete.
14. From the above-quoted observations it is manifest
that there is no fetter on the part of the Court to
bring the other legal representatives on record by
way of an addition which necessarily implies that
it is not necessary that the order substituting some
of the legal representatives is required to be
recalled. The reason can be seen from the above
observations that some of the legal heirs who have
been brought on record by way of substitution can
sufficiently represent the estate of the deceased
and any decision taken in the said proceeding
would not only bind them but the other legal
representatives as well provided such decision
impinges upon the estate of the deceased and the
subject matter is relatable thereto. The Apex Court
was conscious that in order to bring completeness
of the parties in a legal proceeding, it is desirable
that the left out legal representatives should also
be brought on record by way of an addition but
such Rule is not inflexible as in deserving cases,
more particularly, when the Court does not find
that the estate of the deceased is not properly
represented by the legal representatives already
on record, to proceed with the hearing of the said
proceeding and decide the same. The reason is
obvious that bringing the left out legal
representatives may at times delay the disposal of
the proceeding as in case of a
defendant/respondent, fresh summons are
required to be served upon them and they may be
permitted to defend the said proceeding.
15. The aforesaid principles have been re-stated and
reiterated in a subsequent decision of the Supreme
Court in case of Varadarajan Vs. Kankavalli &
Ors. reported in AIR 2020 SC 740. The Apex Court
held that bringing the legal representatives in a
suit or an appeal, is for the purpose of such
litigation, more particularly, to represent the
estate of the deceased so the decision may bind the
estate in the following:-
(9) The legal representatives are impleaded for the purpose of a
suit alone as held by this Court in Daya Ram & Ors. v. Shyam
Sundari & Ors.3 wherein it was held that impleaded legal
representatives sufficiently represent the estate of the deceased
and the decision obtained with them on record will bind not
merely those impleaded but the entire estate, including those not
brought on record. This Court approved the judgment of the
Madras High Court in Kadir v. Muthukrishna Ayyar.
(10) The Full Bench of the Punjab & Haryana High Court in a
judgment reported as Mohinder Kaur & Anr. v. Piara Singh &
Ors.5 examined the question as to whether a decision under Order
XXII Rule 5 of the Code would act as res judicata in a subsequent
suit 3 AIR 1965 SC 1049 4 ILR 26 MAD. 230 5 AIR 1981 P&H
130 between the same parties or persons claiming through them.
The Court held as under:
"5. So far as the first argument of Mr. Bindra, noticed above is
concerned, we find that in addition to the judgments of the Lahore
High Court and of this Court, referred to in the earlier part of this
judgment, he is supported by a string of judgments of other High
Courts as well wherein it has repeatedly been held on varied
reasons, that, a decision under Order 22, Rule 5, Civil Procedure
Code, would not operate as res judicata in a subsequent suit
between the same parties or persons claiming through them
wherein the question of succession or heirship to the deceased
party in the earlier proceedings is directly raised. Some of these
reasons are as follows:--
(i) Such a decision is not on an issue arising in the suit itself, but is
really a matter collateral to the suit and has to be decided before
the suit itself can be proceeded with. The decision does not lead to
the determination of any issue in the suit.
(ii) The legal representative is appointed for orderly conduct of
the suit only. Such a decision could not take away, for all times to
come, the rights of a rightful heir of the deceased in all matters.
(iii) The decision is the result of a summary enquiry against which
no appeal has been provided for.
(iv) The concepts of legal representative and heirship of a
deceased party are entirely different. In order to constitute one as
a legal representative, it is unnecessary that he should have a
beneficial interest in the estate. The executors and administrators
are legal representatives though they may have no beneficial
interest. Trespasser into the property of the deceased claiming
title in himself independently of the deceased will not be a legal
representative. On the other hand the heirs on whom beneficial
interest devolved under the law whether statute or other,
governing the parties will be legal representatives.
xx xx xx
9. We are, therefore, of the opinion that in essence a decision
under Order 22, Rule 5, Civil Procedure Code, is only directed to
answers an orderly conduct of the proceedings with a view to
avoid the delay in the final decision of the suit till the persons
claiming to be the representatives of the deceased party get the
question of succession settled through a different suit and such a
decision does not put an end to the litigation in that regard. It
also does not determine any of the issues in controversy in the
suit. Besides this it is obvious that such a proceeding is of a very
summary nature against the result of which no appeal is provided
for. The grant of an opportunity to lead some sort of evidence in
support of the claim of being a legal representative of the
deceased party would not in any manner change the nature of the
proceedings. In the instant case the brevity of the order
(reproduced above) with which the report submitted by the trial
Court after enquiry into the matter was accepted, is a clear
pointer to the fact that the proceedings resorted to were treated
to be of a very summary nature. It is thus manifest that the Civil
Procedure Code proceeds upon the view of not imparting any
finality to the determination of the question of succession or
heirship of the deceased party."
16. The cumulative effect of the ratio laid down by the
Apex Court in the above-mentioned report is
explicit that the Court is not denuded of power to
allow the impleadment of a left out legal
representative even at the stage of final hearing in
order to bring completeness of the parties in the
legal proceeding and above all, the parties to be
bound by any decision taken therein. It further
propagates the doctrine of representation where
some of the legal representatives brought on
record, can sufficiently represent the estate of the
deceased party and the suit would not abate nor
fail in absence of the other legal representatives
provided the legal representatives already on
record, defends the right of the deceased and
protects the estate left by him.
17. There is also no impediment on the part of the
Court to add the left out legal representatives as
party to the proceeding and, therefore, it is not
necessary that the order substituting some of the
legal representatives in place and in stead of the
deceased party or in the event, some of the legal
representatives who are already on record at the
time of death of one of the party to the proceeding,
is required to be recalled before the Court starts its
journey on the terrain of addition of party.
18. We thus do not find that the order by which the
application being CAN 7393 of 2028 was allowed
is required to be recalled before proceeding with
the hearing of the application being CAN 8 of 2022.
19. Liberty is granted to the parties to mention the
said application before the appropriate Bench.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
