Madras High Court
Manoranjitham vs Sastha Kovil on 13 April, 2023
S.A.(MD).No.61 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.04.2023
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
S.A.(MD).No.61 of 2021
and
C.M.P.(MD).No.703 of 2021
Shanmugam (Died on 17.10.2019) ... Original Defendant
1.Manoranjitham
2.Jeyachandran
3.Manoharan
4.Jeyarani
5.Latha ... Appellants/LRs of deceased Shanmugam/
LRs of sole respondent/
LRs of sole defendant
(Cause title accepted vide Court order dated 08.01.2021 made in C.M.P.
(MD).No.122 of 2021 in S.A.(MD).SR.No.16587 of 2020)
Vs.
Sastha Kovil,
Muppudathi Amman Kovil Street,
Tenkasi Town,
represented through its administrator,
Hariharasubramanian. ...Respondent/Appellant/Plaintiff
Prayer: Second Appeal is filed under Section 100 of CPC to set aside the
Judgment and Decree dated 07.01.2020 passed in A.S.No.99 of 2015 on the file
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of the Additional Subordinate Court, Tenkasi, reversing the judgment and
decree dated 16.10.2015 passed in O.S.No.82 of 2012 on the file of the
Additional District Munsif Court, Tenkasi by allowing this Second Appeal.
For Appellants : Mr.V.Meenakshisundaram
For Respondent : Mr.R.Mukundan
for Mr.V.Karthikeyan
JUDGMENT
This Second Appeal has been filed challenging the judgment and decree
of the Lower Appellate Court. The legal representatives of the defendant in the
suit are the appellants herein. The respondent is the plaintiff in the suit. The
suit O.S.No.82 of 2012 was filed by the plaintiff on the file of the Additional
District Munsif Court, Tenkasi seeking for the relief of declaration of title in
respect of suit first schedule and for recovery of possession in respect of suit
second schedule and also for recovery of arrears of rent at the rate of Rs.1000/-
per month from December 2011 and also for mandatory injunction to remove
the alleged gate in the suit first schedule. In the forthcoming paragraphs, the
parties are described as per their litigative status in the suit.
2. As seen from the plaint, the plaintiff, which is a temple, claims that the
defendant is their tenant in respect of the land and the superstructure. They also
claimed that the defendant is in arrears of rent and he has also illegally put up a
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S.A.(MD).No.61 of 2021
gate in the suit first schedule, which they seek for removal by seeking for a
mandatory injunction. They also claim arrears of rent from the defendant at the
rate of Rs.1000/- per month from December 2011 onwards.
3. However, as seen from the written statement, the defendant has denied
the allegations of the plaintiff and he disputes that he is a tenant in respect of
the superstructure, but admits that he is a tenant only in respect of the vacant
land. He also claims that earlier the plaintiff had instituted rent control
proceedings in R.C.O.P.No.14 of 2009 against the defendant which came to be
dismissed on 30.11.2010, which is also confirmed by the Rent Control
Appellate Authority in R.C.A.No.1 of 2011 by its judgment dated 25.08.2011.
In the aforementioned circumstances, the defendant claims that the suit for
declaration, recovery of possession and mandatory injunction filed by the
plaintiff has to be dismissed.
4. The Trial Court based on the pleadings of the respective parties framed
issues. Thereafter, oral and documentary evidence was let in by both the
parties. The Trial Court, namely, the Additional District Munsif Court, Tenkasi
by its judgment and decree dated 16.10.2015 in O.S.No.82 of 2012 dismissed
the suit filed by the plaintiff temple. Aggrieved by the same, the plaintiff
temple filed a first appeal before the Lower Appellate Court, namely, the
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S.A.(MD).No.61 of 2021
Additional Sub Court, Tenkasi in A.S.No.99 of 2015. The Lower Appellate
Court has however reversed the findings of the Trial Court by allowing the first
appeal by its judgment and decree dated 07.01.2020 and granted the suit reliefs
in entirety. Aggrieved by the same, the legal representatives of the deceased
defendant after obtaining leave from this Court has filed this Second Appeal.
5. The appellants have raised a contention that the judgment and decree
passed by the Lower Appellate Court dated 07.01.2020 in A.S.No.99 of 2015 is
bad in law as it is violative of Order 22 Rule 6 of CPC. According to the
appellants, even before the conclusion of the hearing by the Lower Appellate
Court, the defendant died and therefore, without impleading the legal
representatives of the deceased defendant, the Lower Appellate Court ought not
to have passed a judgment and decree on 07.01.2020 in A.S.No.99 of 2015.
According to the appellants, the hearing got concluded by the Lower Appellate
Court only on 06.11.2019, whereas, the defendant died on 17.10.2019 prior to
the conclusion of hearing and therefore, according to the appellants, since the
defendant died even prior to the conclusion of the hearing, they ought to have
been brought on record as the legal representatives of the deceased defendant
and only thereafter, after giving an opportunity of hearing to the appellants, a
judgment could have been passed by the Lower Appellate Court.
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6. Based on the said contentions, this Court admitted the Second Appeal
on 08.02.2021 by formulating the following substantial questions of law:
“(i) Whether the lower appellate Court was right in
concluding that Order 22 Rule 6 of C.P.C. would apply
and the legal representatives of the deceased sole
appellant need not be brought on record on the ground
that the appeal was reserved for Judgment on
14.10.2019, overlooking the fact that the case was
reopened for oral arguments of the appellant on
21.10.2019?
(ii) Whether Order 22 Rule 6 of C.P.C. would apply
to a case where the Appellate Court had reopened the
case and posted it for further arguments after having
reserved Judgments?”
7. The learned counsel for the appellants drew the attention of this Court
to Order 22 Rule 6 of CPC and would submit that it is very clear that when a
party to a litigation dies before the conclusion of the hearing, his or her legal
representatives will have to be brought on record and only thereafter, after
affording an opportunity of hearing to them, a judgment can be passed. He also
drew the attention of this Court to the case hearing details of the Appeal Suit
No.99 of 2015 before the Additional Sub Court, Tenkasi from 26.04.2018 till
07.01.2020 when the impugned judgment and decree was passed by the Lower
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S.A.(MD).No.61 of 2021
Appellate Court. He would submit that as seen from the daily status details of
the Additional Sub Court, Tenkasi with regard to A.S.No.99 of 2015, it is clear
that the hearing got concluded only on 06.11.2019.
8. The details of the daily case status as recorded by the learned
Additional Sub Judge, Tenkasi in in A.S.No.99 of 2015 relied upon by the
learned counsel for the appellants are as follows:
S.No. Date Business Details
1. 14.10.2019 Judgment not ready for judgment call on
21.10.19.
2. 21.10.2019 For clarification appellant side oral arguments
by 31.10.19.
3. 31.10.2019 Appellant side oral arguments by 4.11.19.
4. 04.11.2019 Appellant side oral arguments by 5.11.19.
5. 05.11.2019 Appellant (by mistake, it has been mentioned as
respondent) filed memo 17.10.19 respondent
died (by mistake, it has been mentioned as
appellant died) memo record steps for
respondent (by mistake, it has been mentioned as
appellant) call on 6.11.19.
6. 06.11.2019 Appellant filed memo appellant side arguments
heard on 12.09.19. Subsequently respondent
died (by mistake, it has been mentioned as
appellant died) on 17.10.19. Under Order 22
rule 6 LRs of respondent (by mistake, it has been
mentioned as appellant) not to be impleaded.
Appeal not abated memo recorded clarification
heard for judgment call on 18.11.19.
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9. The learned counsel for the appellants after referring to the above
business details recorded by the Additional Sub Court, Tenkasi in A.S.No.99 of
2015 would submit that on various dates, i.e., between 31.10.2019 and
06.11.2019 when the learned Lower Appellate Court judge had posted the
matter for appellant's side arguments and for taking steps by the appellant to
bring on record the LRs of the deceased respondent, it is clear that the hearing
got concluded only on 06.11.2019. He would also submit that when the learned
Judge has posted the matter for appellant side arguments, he must also have
heard the respondent side arguments as well before concluding the hearing.
Having not done so and despite the fact that the respondent died as early as on
17.10.2019, the impugned judgment and decree of the Lower Appellate Court is
bad in law, since the respondent died even before the conclusion of the hearing
and it is in violative of the provision of Order 22 Rule 6 of CPC.
10. However, according to the learned counsel for the respondent, the
hearing got concluded on 30.09.2019 itself as seen from the proceedings of the
learned Judge, who had passed the impugned judgment and decree, as the
respondent was also heard on that date and it was reserved for judgment.
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Discussion:
11. Order 22 Rule 6 of CPC reads as follows:
“6. No abatement by reason of death after hearing.-
Notwithstanding anything contained in the foregoing rules
whether the cause of action survives or not there shall be no
abatement by reason of the death of either party between the
conclusion of the hearing and the pronouncing of the
judgment, but judgment may in such case be pronounced
notwithstanding the death and shall have the same force and
effect as if it had been pronounced before the death took
place."
As seen from the above provision, it is clear that only in cases where the
learned Judge has concluded the hearing and has reserved the matter for
pronouncing judgment and in the interregnum, if a party to the litigation dies,
there is no necessity for bringing on record the LRs of the deceased litigant.
12. The question that arises for consideration in this Second Appeal is
whether as to which date the learned Judge while passing the impugned
judgment and decree had concluded his hearing. The appellants contend that
the hearing got concluded only on 06.11.2019, whereas, the respondent
contends that the hearing got concluded on 30.09.2019 itself even prior to the
death of the defendant, who died on 17.10.2019. But as seen from the daily
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S.A.(MD).No.61 of 2021
case status (which has been extracted hereunder for better appreciation), which
has also been verified from the original records and found to be true, it is clear
that the hearing got concluded only on 06.11.2019 for the following reasons:
S.No. Date Business Details
1. 14.10.2019 Judgment not ready for judgment call on
21.10.19.
2. 21.10.2019 For clarification appellant side oral arguments
by 31.10.19.
3. 31.10.2019 Appellant side oral arguments by 4.11.19.
4. 04.11.2019 Appellant side oral arguments by 5.11.19.
5. 05.11.2019 Appellant (by mistake, it has been mentioned as
respondent) filed memo 17.10.19 respondent
died (by mistake, it has been mentioned as
appellant died) memo record steps for
respondent (by mistake, it has been mentioned as
appellant) call on 6.11.19.
6. 06.11.2019 Appellant filed memo appellant side arguments
heard on 12.09.19. Subsequently respondent
died (by mistake, it has been mentioned as
appellant died) on 17.10.19. Under Order 22
rule 6 LRs of respondent (by mistake, it has been
mentioned as appellant) not to be impleaded.
Appeal not abated memo recorded clarification
heard for judgment call on 18.11.19.
a) Even though as seen from the Court proceedings, it has been recorded
by the learned Judge that on 30.09.2019, the respondent side arguments were
heard and he had reserved the matter for pronouncing judgment, thereafter, the
subsequent proceedings of the very same learned Judge makes it clear that the
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learned Judge had reopened the matter once again for further hearing and had
also in one of the hearings, i.e., on 05.11.2019, directed the appellant to take
steps to bring on record the legal representatives of the deceased defendant.
However, on the very next day, i.e., on 06.11.2019, the learned Judge, after
recording the memo filed by the appellant that there is no necessity to bring on
record the LRs of the deceased defendant as per the provisions of Order 22
Rule 6 CPC, has observed that the appeal will not get abated and he has
accepted the memo filed by the appellant. Thereafter, the learned Judge
reserved the matter for pronouncement of judgment by his proceedings dated
06.11.2019. The judgment and decree, which is impugned, was pronounced by
the Lower Appellate Court on 07.01.2020.
b) As seen from the daily case status of A.S.No.99 of 2015, even though
the learned Judge had reserved the matter for pronouncement of judgment after
hearing the arguments of both the parties on 30.09.2019 itself, he had reopened
the case for fresh hearing and posted the same for appellant side arguments on
various dates thereafter and as stated supra, in one of the hearings, i.e., on
05.11.2019, he had also directed the appellant to take steps to bring on record
the LRs of the deceased defendant, but on the very next day, i.e., on
06.11.2019, without steps having been taken by accepting the memo filed by
the appellant, the learned Judge has reserved the matter for pronouncement of
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judgment once again on 06.11.2019 and the judgment and decree, which is
challenged in this Second Appeal, came to be passed thereafter on 07.01.2020.
c) No opportunity of hearing was granted to the respondent as seen from
the proceedings between 21.10.2019 and 06.11.2019 and the learned Judge had
posted the matter only for appellant side arguments. It is also admitted by the
respondent herein that the defendant died on 17.10.2019. As observed earlier,
the hearing got concluded only on 06.11.2019, whereas, the defendant died
even prior to the conclusion of the hearing, i.e., on 17.10.2019.
13. When Order 22 Rule 6 of CPC makes it clear that only in cases where
a party to the litigation dies after the conclusion of the hearing and before
pronouncement of the judgment, there is no necessity to bring on record the
LRs of the deceased litigant, but in the instant case, when it has been
established before this Court by the appellants that the defendant died on
17.10.2019 prior to the conclusion of hearing, which happened on 06.11.2019,
this Court is of the considered view that the impugned judgment and decree
passed by the Lower Appellate Court is bad in law and is in violation of
provisions of Order 22 Rule 6 of CPC.
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14. For the foregoing reasons, the substantial questions of law formulated
by this Court at the time of admission of this Second Appeal are answered in
favour of the appellants by holding that the Lower Appellate Court committed
an error by pronouncing a judgment when the defendant died even before the
conclusion of hearing and therefore, the judgment has been passed in violation
of Order 22 Rule 6 of CPC.
15. Hence, the impugned judgment and decree dated 07.01.2020 passed
by the Lower Appellate Court, namely, the Additional Sub Court, Tenkasi in
A.S.No.99 of 2015 is set aside and the matter is remanded back to the very
same Court for fresh consideration on merits and in accordance with law after
the respondent takes steps to bring on record the legal representatives of the
deceased defendant, who are the appellants herein, by filing a formal
application as per law. The Lower Appellate Court is directed to dispose of the
appeal on remand within a period of six (6) months from the date of receipt of a
copy of this judgment. The Lower Appellate Court shall decide the appeal
uninfluenced by any of the observations made by this Court in this judgment.
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16. In the result, this Second Appeal is allowed. There shall be no order
as to costs. Consequently, connected miscellaneous petition stands closed.
13.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
To
1.The Additional Sub Court,
Tenkasi.
2.The Additional District Munsif Court,
Tenkasi.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD).No.61 of 2021
ABDUL QUDDHOSE, J.
Lm
S.A.(MD).No.61 of 2021
13.04.2023
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