Delhi High Court

Aziz Ahmed & Ors. vs Sakina Begum (Since Deceased) ... on 7 December, 2010

Author: Indermeet Kaur

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment reserved on: 03.12.2010
%                                  Judgment delivered on: 07.12.2010

+       RSA No.129/2002 & C.Ms.355/2002 & 19788/2010


AZIZ AHMED & ORS.                                 ...........Appellants
                           Through:     Mr.M.R.Chawla, Advocate

                    Versus


SAKINA BEGUM (SINCE DECEASED)
THROUGH L.Rs. & ORS.               ..........Respondents
                 Through: Ms.Kumkum Jain, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                 Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

C.M.19788/2010

1. By way of this application it is contended that appellant no.1

has expired on 13.9.2006; his legal heirs have not been brought on

record; appeal stands abated. Prayer for abatement has been

made.

2. Reply filed has opposed the application. It is not in dispute

that appellant no.1 has died and admittedly his legal

representatives have not been brought on record within the

prescribed period of limitation.

3. Appellant has submitted that the appeal has abated only qua

legal representatives of appellant no.1 in terms of Order 22 Rule 3

(ii) of the Code of Civil Procedure, the appeal has not abated in

toto.

4. Learned counsel for the respondents/applicants has placed

reliance upon a judgment of the Supreme Court reported in AIR

1973 SC 204 Babu Sukhram Singh vs. Ram Dular Singh & Ors. It

is submitted that the appeal has abated in toto as it was a joint

claim which was made by the plaintiffs against all the defendants

of whom one such defendant has died. Reliance has also been

placed upon AIR 1964 SC 215 Union of India vs. Ram Charan

(deceased) through LRs.

5. Learned counsel for the non-applicants/appellants has placed

reliance upon a judgment of the Apex Court reported in (2003) 3

SCC 272 Sardar Amarjit Singh Kalra (dead) by LRs. & Ors. vs.

Pramod Gupta (dead) by LRs & Ors. It is submitted that laws of

procedure are meant to regulate effectively and aid the object of

doing substantial and real justice; rights should not be foreclosed

as procedure is always viewed as a handmaid of justice and not

hamper the cause of justice.

6. Record shows that the present suit was a suit for recovery of

possession and damages. Sakina Begum, the respondent was the

plaintiff before the trial court. There were six defendants of whom

Aziz Ahmed was defendant no.1; they were all the sons of Shariff

Ahmed. The averments in the plaint were that the plaintiff is the

owner of house bearing no.6863, Hata Kedara, Bara Hindu Rao,

Delhi; a portion of this house comprising of one room and a Dalan,

kitchen, bath, courtyard, store, latrine on the ground floor had

been tenanted out to Shariff Ahmed; Shariff Ahmed was a habitual

defaulter in the payment of rent. Vide notice dated 28.12.1976, the

tenancy of Shariff Ahmed was terminated. He did not vacate the

property. Shariff Ahmed had become a statutory tenant after the

termination of his tenancy vide notice dated 28.12.1976. There

was no fresh agreement between the parties for continuation of the

tenancy. It was a monthly tenancy. Plaintiff filed proceedings for

grant of permission under Section 19 of the Slum Areas

(Improvement & Clearance) Act, 1956; in March 1982 Shariff

Ahmed died leaving behind his legal representatives who were

arrayed as defendants no.1 to 6 by the plaintiff in the present suit.

Suit for possession had been filed; prayer was that a decree of

possession be passed in favour of the plaintiff and against the

defendants.

7. Submission of the defendants was that all the legal

representatives of deceased Shariff Ahmed had inherited the

tenancy from their deceased father; suit was barred under Section

50 of the Delhi Rent Control Act.

8. Vide judgment and decree dated 15.1.1994 the suit of the

plaintiff/respondent had been decreed for possession. It was a

tenancy for residential purpose. It was held that the defendants

had not become fresh tenants as was their contention and for

which specific Issue no.5-E had been framed.

9. In appeal the judgment of the trial judge was endorsed vide

the impugned judgment and decree dated 21.5.2002.

10. This is a second appeal. It had been admitted and on

6.10.2004, the following substantial question of law was

formulated:

"Whether the legal representative of late Sharifff Ahmed can, on his death, be said to be tenants of the Respondents in view of the provisions of Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956?"

11. It is not in dispute that during the pendency of this appeal on

13.9.2006 appellant no.1 has expired. It is also not in dispute that

no application has been filed to bring on record the legal

representatives of appellant no.1.

12. The question which has to be answered by this court is as to

whether this appeal has abated in toto or whether it has abated

qua appellant no.1 only and the right to sue survives against the

remaining appellants.

13. The averments in the plaint show that the plaintiff had made

a joint claim against all the defendants who were six in number.

This suit was decreed in his favour by the two courts below.

During the pendency of the appeal before this court i.e. in the

second appeal one appellant has expired. Claim of the plaintiff was

not a distinct claim against each of the defendants; one claim could

not be segregated from the other. The relief claimed against all

the defendants was common.

14. In the case of Babu Sukhram Singh (supra) which was a suit

for permanent injunction, the court held that where the claim

against all the defendants was a joint claim; on the death of one

defendant, during the pendency of the appeal, the claim abated as

a whole and not against one appellant alone. The judgment relied

upon by the counsel for the non-applicants/appellants in Sardar

Amarjit Singh Kalra (supra) is distinct on its facts. That was a case

where compensation had to be awarded under the provisions of the

Land Acquisition Act; separate claims having no conflicting interest

inter se had been filed; in such a case the court had held that death

of some of the defendants would not result in abatement of the

entire appeal.

15. In the judgment of the Supreme Court reported in (1962) 2

SCR 636 Sri Chand & Ors. vs. Jagdish Pershad Kishan Chand &

Ors., a bench of the Supreme Court had laid down the tests to

determine as to when and under what circumstances an appeal

would abate on the death of one party. It inter alia held as follows:

"The test to determine this has been described in diverse forms. Courts will not proceed with an appeal:

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;

when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and

when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed."

16. The averments in the plaint and the prayer clause show that

the relief claimed against all the defendants was common; it was

not divisible; it was based on the submission the father of the

defendants who had become a statutory tenant in his lifetime

having expired, the legal representatives of Shariff Ahmed could

not now remain in the suit property. The result of the death of the

appellant no.1 is that even if a decree is passed against the

remaining appellants it would be ineffective and unexecutable; it

could not be executed against the legal representatives of the

appellant no.1 in the absence of their not having been brought on

record.

17. Appeal accordingly stands abated a whole.