Telangana High Court
Mrs. Vimal Vasant Karwande Wife vs Vishnuvardhan Reddy on 30 July, 2021
Bench: Challa Kodanda Ram
THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM
CIVIL REVISION PETITION Nos.602, 605 and 606 of 2020
COMMON ORDER:
These Civil Revision Petitions are filed against the Common Order
dated 26.11.2019 passed by the XI Additional Chief Judge, City Civil
Court, Hyderabad (for short, 'the trial Court') in I.A(SR) Nos.2322, 2323
and 2324 of 2019, rejecting the applications as 'not maintainable' on the
ground that the suit O.S.No.882 of 2013 itself has been disposed of and
appeal having been filed by the defendants in August 2000.
Heard Sri Sunil B. Ganu, learned counsel for the revision
petitioners/plaintiffs, and Sri G.V.V.S.R. Subramaniam, learned counsel
for the respondents/defendants.
Brief facts of the case are that the suit O.S.No.882 of 2013 was
filed for declaration and recovery of possession. The plaintiffs were
heard on 22.02.2019, and the defendants were heard on 08.03.2019.
The judgment was rendered on 10.04.2019 decreeing the suit in favour
of the plaintiffs. The plaintiffs are residents of USA. Plaintiff No.3 passed
away on 26.02.2019. It is the submission of the learned counsel for the
plaintiffs that the plaintiffs did not intimate about the death of plaintiff
No.3 apparently being not aware of the procedure in law, and the counsel
came to know about the death of plaintiff No.3 only after he intimated
about passing of the Judgment and Decree in the suit, and therefore the
lack of intimation to the Court about the death of plaintiff No.3 was not
intentional. Upon such intimation, the counsel filed IA(SR)
No.2323/2019 seeking to bring on record the petitioners No.6 and 7 as
legal heirs of plaintiff No.3, and IA(SR) No.2322/2019 to make
consequential amendments in the suit, and IA(SR) No.2324/2019 to
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amend the decree incorporating the petitioners No.6 and 7 as plaintiffs
No.6 and 7 in the cause title as legal heirs of deceased plaintiff No.3.
The applications were rejected by the trial Court by the impugned
Common Order.
It is the submission of the learned counsel for the
petitioners/plaintiffs that the respondents/defendants filed the appeal
CCCA No.310 of 2019 only on 05.08.2019 along with stay petition and
the stay petition came to be dismissed by the Division Bench of this
Court on 23.10.2019. Therefore, as on the date of filing of aforesaid
interlocutory applications before the trial Court, no appeal was filed by
the defendants against the Judgment and Decree passed in the suit, and
therefore the trial Court ought to have entertained the applications as the
same are permissible under Order 22 Rule 3(1) of CPC, Rule 28 of Civil
Rules of Practice, and Section 153 of CPC, respectively.
Learned counsel for the plaintiffs relied on the following judgments
in support of his contentions:
1) Himangshu Bhusan Kar v. Monindra Mohan Saha1
2) Mohd. Hussain (dead) by LRS v. Occhavlal2
3) State of Andhra Pradesh through Principal Secretary v.
Pratap Karan3
4) VIP Emporium v. TCI Finance Ltd4
5) Tilak Raj v. Baikunthi Devi5
6) Chetin Gir v. Harjinder Singh6
7) Goverdhan Dass v. Darshan Singh7
8) Dwarkaprasad v. Safurabai8
AIR 1954 Cal 205
(2008) 3 SCC 233
(2016) 2 SCC 82
2012 (3) ALT 165
(2010) 12 SCC 585
1978 Punjab Law Journal 366
1968 SCC OnLine P&H 186
Air 1958 MP 307
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CKR, J
On the other hand, Sri G.V.V.S.R. Subramaniam, learned counsel
appearing for the respondents, submits that as the appeal CCCA No.310
of 2019 filed against the judgment and decree in O.S.No.882 of 2013 is
pending before this Court, no interlocutory application is maintainable
before the trial Court as the suit itself was disposed of by the trial Court,
and therefore if any application is sought to be made, it can only be
made in the CCCA No.310 of 2019. Learned counsel contends that, as a
matter of fact, plaintiff No.3 died on 26.02.2019 when the suit was
pending and therefore the inaction in bringing on record the legal
representatives of plaintiff No.3 is fatal to the proceedings. It is further
contended that the GPA holder cannot feign ignorance of the death of the
plaintiff No.3, and further the Execution Petition was filed by adding legal
representatives of plaintiff No.3. It is also contended that the application
purported to be made under Section 153 of CPC is not maintainable as
Section 153 of CPC is applicable only in relation to correction of clerical
mistakes, and further as on the date of making an application under
Section 153 of CPC, the suit itself stands disposed of, and therefore no
amendment to the Cause Title is permissible by the trial Court after
disposal of the suit. It is also contended that the judgments relied on by
the counsel for the petitioners have no application to the facts of the
present case and thus prays for dismissal of the Civil Revision Petitions.
In the above narrated set of facts and in the light of the arguments
of the respective counsels, two core questions would fall for consideration
in the present civil revision petitions.
1) Whether, on account of the death of the 3rd plaintiff on
26.02.2019, the suit filed by the petitioners is abated, and
therefore the judgment and decree passed by the trial Court on
10.04.2019 was without jurisdiction and is a nullity?
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2) Whether there is any bar for granting of amendment of
decree, more particularly, when an appeal is pending against the
judgment and decree before the appellate Court?
At the outset, it may be noted that the applications filed by the
petitioners were rejected as not maintainable.
CRP No.606 of 2020 is filed against the order in IA(SR) No.2323 of
2019, invoking Order 22 Rule 3(1) of CPC, to bring on record the legal
representatives of the deceased plaintiff No.3. It may be noted that if
the answer to question No.1 is in affirmative, the CRP No.606 of 2020 is
liable to be dismissed and consequently the other two Civil Revision
Petitions filed for consequential reliefs are also liable to be dismissed.
At the outset, it may not be out of place to mention that the relief
claimed is in relation to a valuable immovable property for declaration
and consequential recovery of possession. As per the plaint in
O.S.No.882 of 2013, the suit schedule property is the property purchased
by one V.L.Kharwande, husband of the 1st plaintiff and father of plaintiffs
2, 3 and 4. In other words, the property is a joint family property of the
plaintiffs 1 to 4, and they have common interest in the property as well
as in the result of the suit. There are no individual shares that are being
claimed by the plaintiffs and, for all purposes of the reliefs claimed in the
suit, there is no conflict of interest among the plaintiffs.
From out of the judgments cited by the learned counsel for the
petitioners, the judgment of the Calcutta High Court reported in
Himangshu Bhusan Kar (1 supra) is directly on the point. The
Calcutta High Court, while considering the three points that were urged,
and while answering the second point with respect to the issue that on
account of death of one of the plaintiffs, during the pendency of the
ejectment suit, whether there was an abatement so far as he was
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concerned as there was no substitution in his place within the time
allowed by law, and whether it would result in abatement of the suit
proceedings and thus the decree passed is a nullity?". The said point was
answered in the negative by the Court with a cogent reasoning, and
further held that there is no question of abatement when the case falls
within the terms of Rule 2 of Order 22 of CPC, and the act of not-bringing
to the notice of the Court about the death of plaintiff when the decree
was passed is a mere irregularity and the same cannot have the effect of
making the decree as one without jurisdiction. It is well settled that a
decree passed in favour of a dead person is not a nullity although a
decree made against a dead person is a nullity.
To the same effect is the judgment of the Supreme Court in Mohd.
Hussain (2 supra), wherein the Hon' ble Supreme Court had
categorically held, in the facts of the said case, that even assuming that
two of the married daughters of the plaintiff were necessary parties, their
interest in the estate of their father was held to be sufficiently
represented by their two brothers who are on record.
Applying the said principle to the present set of facts, there is no
dispute that the suit is filed with respect to joint family property seeking
declaration of their right and for recovery of possession and in that view
of the matter, the interest of the deceased 3rd plaintiff can be said to be
represented by other surviving plaintiffs.
To the same effect is the judgment of Supreme Court in Pratap
Karan (3 supra). In the said judgment, reliance was placed extensively
on the various earlier judgments interpreting Order 22, more particularly,
the observations in the 5-Judges Constitution Bench judgment in Sardar
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Amarjit Singh Kalra v. Pramod Gupta9. In paragraph 39 of the said
judgment, it was held as under:
"... The provisions contained in Order 22 are not to be construed
as a rigid matter of principle but must ever be viewed as a
flexible tool of convenience in the administration of justice."
It was further held in paragraph 39 of Pratap Karan (3 supra) as
under:
"... A number of people, more for the sake of convenience, may
be counseled to join together to ventilate, all their separate but
similar nature of claims and this also should not result in the
claims of all such others being rejected merely because one or
the other of such claims by one or more of the parties abated on
account of death and consequent omission to bring on record
the legal heirs of the deceased party. At times, one or the other
parties on either side in a litigation involving several claims or
more than one, pertaining to their individual rights may settle
among themselves the dispute to the extent their share or
proportion of rights is concerned and may drop out of contest,
bringing even the proceedings to a conclusion so far as they are
concerned. If all such moves are allowed to boomerang
adversely on the rights of the remaining parties even to contest
and have their claims adjudicated on merits, it would be a
travesty of administration of justice itself."
In paragraph 40 of Pratap Karan (3 supra), it was categorically
held as under:
"... Hence, in the event of death of any of the plaintiffs, the
estate is fully and substantially represented by the other sharers
as owners of the suit property. We are, therefore, of the view
that by reason of non-substitution of the legal representative(s)
of the deceased plaintiffs, who died during the pendency of the
appeal in the High Court, entire appeal shall not stand abated.
Remaining sharers, having definite sharers in the estate of the
deceased, shall be entitled to proceed with the appeal without
the appeal having been abated. We, therefore, do not find any
(2003) 3 SCC 272
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reason to agree with the submission made by the learned
counsel appearing for the appellants."
In the light of the authoritative pronouncements in the judgments
of the Courts referred to above, the question No.1 is required to be
answered in the negative holding that merely on account of the death of
3rd plaintiff, there is no abatement of the suit proceedings. The
judgments cited by the counsel for the petitioners/plaintiffs/decree
holders were rejected by the learned XI Additional Chief Judge in a
perfunctory manner by merely stating that the applications are not
maintainable.
So far as question No.2 is concerned, the judgment of the
Supreme Court in Tilak Raj (5 supra), the judgment of Punjab and
Haryana High Court in Chetin Gir (6 supra), and Goverdhan Dass (7
supra), and the Division Bench judgment of the Madhya Pradesh High
Court in Dwarkaprasad (8 supra), in essence, categorically held that
Sections 152 and 153 of CPC give ample powers to the Court to correct
any mistake even in decrees.
In the facts of the present case, it may be noted that there is no
dispute that all the plaintiffs are in USA and they were represented by
plaintiff No.4 by virtue of GPA executed in his favour. On behalf of the
plaintiffs, the arguments were concluded on 22.02.2019; and on
08.03.2019, the arguments were advanced by the defendants counsel
and the matter was reserved for judgment on the same day. It may be
noted that the 4th plaintiff is a corporate entity represented by its
Managing Director and there was no material to come to the conclusion
that as a matter of fact that the 4th plaintiff was aware of the death of 3rd
plaintiff on 26.02.2019.
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On the other hand, the respondents filed CCCA No.310 of 2019 on
05.08.2019, who having been aware of IA(SR) Nos.2323, 2322 and 2324
of 2019 filed on 24.04.2019 did not choose to mention that there was no
appeal pending against the judgment and decree in the suit as on
24.04.2019. Further in view of the legal principles as settled in the
aforestated judgments that the suit would not abate on account of the
death of one of the plaintiffs, it can be safely said that there cannot be
any objection with respect to ordering IA(SR) No.2323 of 2019 filed to
bring on record the legal representatives of deceased plaintiff No.3, and
also ordering the other two applications i.e., I.A(SR) Nos.2322 and 2324
of 2019 being for consequential reliefs.
In the light of the above, the CRP No.606 of 2020 is allowed.
Consequently, CRP Nos.602 and 605 of 2020 also stand allowed. No
costs. Miscellaneous petitions, if any pending, shall stand disposed of.
____________________
CHALLA KODANDA RAM, J
30th July, 2021
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CKR, J
THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM
CIVIL REVISION PETITION Nos.602, 605 and 606 of 2020
30th July, 2021
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