Md. Eusuf Mondal v. Md. Omar Ali — 1975 DIGILAW 106 (CAL)

Judgment : The plaintiffs opposite parties nos. 1-14 instituted a suit in the first court of the Munsif at Basirhat being Title Suit No. 128 of 1969 for recovery of possession on a declaration of title of 55 dec. of land of plots nos. 5599 and 5602, (eastern portion) of khatian no. 753 P. S. Basirhat, 24-Parganas. The suit was decreed exparte on September 29, 1972. The case of the petitioners who are some of the defendants is that summons of the suit was supprossed on practising fraud on court and they became aware of the decree for the first time on June 24, 1973. They filed a petition under Order 9 Rule 13 and also filed another petition for stay of execution of the connected execution case, being Title Execution case No. 21 of 1972. The petition for stay was rejected on May 4, 1974. The petitioners thereupon moved this court in revision against the order refusing stay and on their application the connected Rule was issued which has now come up for hearing and, as it appears, is not opposed. 2. During the pendency of the Rule in this court three of the opposite parties being opposite parties nos. 3, 7 and 8 who were some of the plaintiffs in the suit, died and notes of abatement were recorded in respect of the said opposite parties. No application for setting aside abater.1ent or for bringing in their heirs and legal representatives on record has been field. 3. It would prima facie appear that in the events that have happened, namely the death of some of the plaintiffs in respect of the joint decree the entire Rule bas abated. Mr. Goral Ch. Mukherjee, learned Advocate appearing for the petitioners has, however, contended firstly that no substitution in respect of matters in revision in this court is necessary. He relied on the decision in (1) Md. Sadaad Ali v. Administrator of Lahore Corporation, AIR 1949 Lahore 186 in which it was held that Order 22, Rule 3 is not applicable to revisions in the High Court and revision petitions should not be dismissed on the ground of abatement. He relied on the decision in (1) Md. Sadaad Ali v. Administrator of Lahore Corporation, AIR 1949 Lahore 186 in which it was held that Order 22, Rule 3 is not applicable to revisions in the High Court and revision petitions should not be dismissed on the ground of abatement. In (2) Anandamoni v. Rudra Mahanti, 21 I. C. 407 a Division Bench of this Court, Sir Ashutosh Mukherjee presiding, held that the principle recognised in Rule 3 of Order 22 of the Code is applicable not only to suits but also to proceedings in revision. The matter is no longer in controversy in view of the observation of the Supreme Court in (3) Shankar Ramchandra v. Krishnaji, AIR 1970 SC p. 1. at p. 4 is set out below : "......When the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below : Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is ....... only one of the modes of exercising power conferred by the statute basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense." According to the decision, revisional jurisdiction exercised by the High Court is a part of the general appellate jurisdiction and there is no reason why in this state of affairs the provisions of Order 22 will be inapplicable to revision cases in the High Court. 4. Mr. Mukherjee has next contended that it is not necessary to bring on record the heirs and legal representatives of the deceased opposite parties who were the plaintiffs in the suit, when other plaintiffs are on record as other opposite parties in this Rule. He has relied on Rule 4 of Order 41 and submitted on authority that it is not necessary to bring on record the heirs and legal representatives of the deceased opposite parties in the circumstances. He has relied on Rule 4 of Order 41 and submitted on authority that it is not necessary to bring on record the heirs and legal representatives of the deceased opposite parties in the circumstances. Order 41 Rule 4 of the Code is as follows :- "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, anyone of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or the defendants, as the case may be." In (4) Rameswar Prasad and others v. Shyam Behari Lal and another, AIR 1963 SC 1901 it was held that Order 41 Rule 4 applies to the stage of filing the appeal enabling one of the plaintiffs or the defendants to file an appeal from the whole decree when there are more plaintiffs or defendants than one in the suit and the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants. This Rule is unavailable when all the plaintiffs or the defendants prefer the appeal and on the filing of the appeal Order 22 comes in operation. If, therefore, there is any death during the pendency of the appeal the legal representatives of such person have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further resulting in the complete abatement of the appeal otherwise there will be two contradictory decrees. 5. If that is not done, the appeal by the deceased appellant abates and does not proceed any further resulting in the complete abatement of the appeal otherwise there will be two contradictory decrees. 5. In (5) Daya Ram and others v. Shyam Sundari and others, AIR 1965 SC 1049 it was held that where the appellant after dilligent and bonafide enquiry ascertains the legal representatives of a deceased defendant or respondent and brings them on record within the time limited by law, there is no abatement of the suit or appeal as the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them will bind not merely those impleaded but the entire estate including those not brought on record in the absence of any fraud, though, it would be the appellant's duty to bring on record the legal representatives left out when be is made aware of the same. 6. In (7) the State of Punjab v. Nath Ram, AIR 1962 SC 89 followed in (8) Union of India v. Sriram Bohra AIR 1965 SC 1531 it was held that when a decree obtained by the respondents is a joint and indivisible one without specification of shares or benefit or proportion therein of each of the decree holders, the appeal against all other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated. 7. In (6) Ratan Lal v. (Firm) Lalman Das, AIR 1970 SC 108 , in a suit against the firm through its partners M and R for decree for goods supplied R denied the claim in entirety while M admitting liability for portion, the claim was decreed in entirety. In appeal by R. M was impleaded as the second respondent but the appellant failed to serve notice of appeal on M. It was held that even then the court had jurisdiction to pass orders under Or. 41 R. 4 as no order could be passed in the appeal to the prejudice of M in the circumstances. The case strongly relied on by Mr. 41 R. 4 as no order could be passed in the appeal to the prejudice of M in the circumstances. The case strongly relied on by Mr. Mukherjee is the decision in (9) Mahabir Prasad v. Jageram and ors., AIR 1971 SC 742 wherein the Court m1de the following observation following the earlier cases referred to above (para 5) : "Competence of the appellate court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of the several persons against whom a decree is made on 3 ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party respondent and on his death his heirs have not been brought on the record. Power of the appellate court under Order 41 Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the Subordinate Court and against whom a decree proceded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents." 8. The decisions indicate the basic concept of law that no order or decree deciding rights of parties should be passed against a person to his prejudice without affording him an opportunity of being heard. There is however the rule of law that an order or decree in favour of a person in a proceeding cannot be passed in his absence. Under Rule 4, Order 41 when a decree is passed on any ground common to the plaintiffs or the defendants, any of the plaintiffs or defendants may appeal from the whole decree and the court may reverse or vary the decree in favour of all the plaintiffs or the defendants. Under Rule 4, Order 41 when a decree is passed on any ground common to the plaintiffs or the defendants, any of the plaintiffs or defendants may appeal from the whole decree and the court may reverse or vary the decree in favour of all the plaintiffs or the defendants. But the court has not been given the power to vary or reverse the decree when it is not in favour of all such plaintiffs or the defendants since such reversal or variation of the decree would be prejudicial to the plaintiffs or the defendants who may not prefer an appeal and such order in law cannot be passed without affording them an opportunity of being heard. 9. In the case before us the position is that some of the defendants have preferred this revisional application against the plaintiffs some of whom had since died, so that the Rule is now against some plaintiffs in view of the death of the plaintiffs we have referred to earlier as the heirs of the deceased plaintiffs had not been brought on record. The court is not given the power to vary or alter the decree in favour of some of the plain tiffs or some of defendants, If the decree or order has to be varied or reversed it must be in favour of all the plaintiffs or in favour of all the defendants. In this case as we have already seen, in the events that have happened all the heirs or legal representatives of the plaintiffs are not before the court. The position would have been otherwise if any of the defendants' legal representatives were not on record in the event of death of the said defendants made opposite parties in the Rule and the court could make the Rule absolute which would have been an order in favour of all the defendants. The position would be wholly different in the absence of legal representatives of some of the plaintiffs. In their absence no order could be passed to the prejudice of the deceased plaintiffs or the legal representatives of the deceased plaintiff which the relief claimed in the Rule would amount to. As a result the entire Rule must be deemed to have abated. 10. In their absence no order could be passed to the prejudice of the deceased plaintiffs or the legal representatives of the deceased plaintiff which the relief claimed in the Rule would amount to. As a result the entire Rule must be deemed to have abated. 10. For the above reasons I am of opinion that on account of death of some of the plaintiffs opposite parties and failure to implead and bring their heirs and legal representatives on record the Rule in its entirety has abated and must be discharged. The Rule is accordingly discharged. There will be no order as to costs.