Shri Hiralal And Ors. vs Sh. Balbir Singh Bhatia
2007 Latest Caselaw 258 Del

JUDGMENT

J.M. Malik, J.

1. In this appeal, the appellants have questioned the abatement of their whole appeal as per judgment delivered by the first appellate court dated 16.09.2006. The facts germane to the case of the respondent/plaintiff are these. Jagan Nath, who was tenant in respect of a portion of property No. 695-696, Gali Kunde Wali, Ajmeri Gate, Delhi, occupied the suit premises before 1962 i.e. prior to coming into force of Transfer of Property Act. However, notice of termination of tenancy dated 23.2.1993 was served, wherein his tenancy was terminated by midnight of 31.03.1993. Jagan Nath sent reply to the said notice dated 09.03.1993. Consequently, Jagan Nath became a statutory tenant. Jagan Nath died leaving behind his widow Lakshmi Devi. Lakshmi Devi also expired on 01.12.2003. The landlord respondent filed a suit for recovery of possession and damage, mesne profits against the appellants/defendants who are children of Jagan Nath. Eviction petition was filed against Lakshmi Devi but the same was dismissed. However, when the landlord wanted to file appeal, it transpired that she had expired on 01.12.2003. Smt. Lakshmi Devi was entitled to live in the tenanted premises for her life, as per provision of Section 2(1) of Delhi Rent Control Act. Consequently, no appeal was filed. After her death, when the children became the trespassers of the case property, the above said suit was filed. Damages in the sum of Rs. 1500/- per month were demanded w.e.f. 02.12.2003 onwards.

2. In their written statement, children of Jagan Nath claimed that they were the tenants in the premises in question. They averred that notice in question was bad in law. Again, no ground available in the Delhi Rent Control Act was found mentioned in the notice. The entire rent was paid during the lifetime of Late Jagan Nath under Section 27 of Delhi Rent Control Act because the plaintiff/respondent had refused to accept the money order and the rent.

3. The Trial Court decreed the suit and passed the order of recovery of possession of the suit property and recovery of mesne profits @ Rs. 1000/- per month w.e.f. 02.12.2003 till the recovery of the case property. The trial court also awarded interest @ 9% per annum besides the costs.

4. Aggrieved by this order, the appellants filed the appeal before the first Appellate Court. The first Appellate Court dismissed the appeal vide its order dated 16.09.2006. It dismissed the appeal on a preliminary ground. The appeal was filed by the seven appellants, on 20.5.2005. Om Parkash, appellant No. 2 had already expired on 2.5.2005 i.e. before the filing of that appeal. Learned Counsel for the appellants argued that the appeal did not abate in view of the authorities reported in Chitranjan Das v. Pran Ballabh Das 1997 AIHC 3569 and Abdul Hamid v. Durga Charan . However, the first Appellate Court relied upon a judgment of this Court delivered by the Division Bench reported in Invest Imports v. Watkin Mayor Co. 1978 Rajdhani Law Reporter 249

5. I have heard counsel for the parties. The counsel for the appellants has cited few authorities in support of his case. In Mahmud Mian (Dead) Through LRs and Anr. v. Shamsuddin Mian (Dead) Through LRs and Ors. (2005) 11 Supreme Court Cases 582, it was held:

After hearing the learned Counsel for the parties, we are satisfied that the impugned judgment of the Division Bench does not satisfactorily dispose of the appeal. It was a partition suit. On account of the death of one of the parties, the appeal could not have abated in its entirety. This appeal is, therefore, allowed. The impugned judgment dated 03.03.2000 is set aside and the letters patent appeal is remanded to the High Court for hearing and decision afresh on merits.

This must be borne in mind that this was a case for partition.

6. He has also drawn my attention towards another authority reported in Rama Shankar Prasad and Ors. v. Sitaram Sah wherein one of the appellants died but three sons of the deceased appellant were already on record, estate of the deceased was fully represented though some other heirs were not imp leaded. It was held that appeal would not abate unless such other heirs have independent or different case than the heirs on record.

7. He also cited another authority reported in Mahabir Prasad v. Jage Ram and Ors. . In this case, one of the respondents died and one of his legal representatives was already on record in another capacity. It was held that the appeal did not abate even though no application was made to bring them on record.

8. Lastly, in H.H. Darbar Alabhai Vajsurbhai and Ors. v. Bhura Bhaya and Ors. AIR 1937 Bombay 401, it was held that where an appeal is presented against a dead person or persons and the appeal has abated, the Court has power, in order to prevent injustice being done, to permit the amendment and allow the appellant to add the legal representatives of the deceased.

9. This is indeed a side show and not the heart of the problem. The appellants have cited far-fetched authorities which hardly create propitious conditions for them. Learned Counsel for the respondent has cited a case reported in Invest Imports v. Watkin Mayor Co. (supra) wherein the Apex Court's authority reported in Ch. Surat Singh v. Manohar Lal was referred. The learned Counsel for the respondent also cited another authority reported in Badni (Dead) by LRs and Ors. v. Siri Chand (Dead) by LRs and Ors. .

10. I also cite some authorities which will go to embolden the case of the respondent. In State of Punjab v. Nathu Ram , the Apex Court observed:

6. The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible. It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.

11. In Sardar Amarjit Singh Kalra v. Pramod Gupta , the Constitution Bench authoritatively laid down:

The question as to whether the court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially. The question as to when a proceeding before the court becomes or is rendered impossible or possible to be proceeded with, after it had partially abated on account of the death of one or the other party on either side has been always considered to depend upon the fact as to whether the decree obtained is a joint decree or a severable one and that in case of a joint and inseverable decree if the appeal abated against one or the other, the same cannot be proceeded with further for or against the remaining parties as well. In case of "joint and indivisible decree", "joint and inseverable or inseparable decree", the abatement of proceedings in relation to one or more of the appellant(s) or respondent(s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto, as otherwise incosistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject-matter vis-a-vis the others. Existence of a joint right as distinguished from tenancy-in-common alone is not the criterion but the joint character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged. Where the dispute between two groups of parties centered around claims or was based on grounds common relating to the respective groups litigating as distinct groups or bodies - the issue involved for consideration in such class of cases would be one and indivisible. When the issues involved in more than one appeal dealt with as a group or batch of appeals, are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals.

12. Similar view was taken in a recent authority reported in N. Khosla v. Rajlakshmi(Dead) and Ors. .

13. In Kumoney v. Dasarthi AIR 1928 Calcutta 528, it was held that whether the appeal has abated as a whole would depend on the nature of the decree in appeal against suit for enhancement of rent of joint tenants. If the legal representative of a deceased tenant is not brought on record, the whole appeal abates.

14. In Sukhram v. Ram Dular AIR 1973 SC 204, it was held that during the pendency of the appeal, if the defendants died and no separate claim is made against any of the defendants in appeal, the appeal will abate. In a suit for ejectment against joint trespassers (Damodar v. Kachan ) or joint statutory tenants (Maganbhai v. Rameshbhai ), on the death of one of the defendants, the suit abates as a whole.

15. In view of this discussion, I find no infirmity in the order passed by the first Appellate Court. The appeal abates in its entirety. The appeal is without merit and is hereby dismissed, in liming. No costs. Copy of this judgment be sent to the Court below forthwith.

+CM Nos. 17416/2006 & 1282/2007 in RSA No. 440-45/2006

In view of the disposal of the appeal, no further orders are required to be passed in the applications. The same are disposed of.