Saroj Somani v. Steel Enterprises (P) Ltd. — 1978 DIGILAW 575 (CAL)

JUDGMENT M M. Duct. J:- This Rule is at the instance of the plaintiff Smt. Soroj Somani and it is directed against order no. 85 dated 8th July, 1978 of the District Judge, Alipore. 2. H.K. Somani, since deceased, was the defendant no.2. The defendants nos. 3 and 4, R.K. Somani and D.K. Somani respectively, are the sons of H.K. Somani. The plaintiff is the wife of the defendant no. 4, D.K. Somani. The defendant no. 2, Phool Lata Somani is the wife of R.K. Somani. The plaintiff has instituted a suit, inter alia, praying for a declaration that H.K. Somani, his wife Ratan Devi Somani, his son R.K. Somani and his wife phool Lata Somani are not the directors of Steel Enterprises Pvt. Ltd., and that the meeting of the Board of Directors held on January 30, 1975 was illegal and void. The plaintiff has also prayed for a permanent injunction restraining the defendants including the above defendants from acting as directors of the said company and for certain other reliefs. Simultaneously with the institution of the suit, the plaintiff made an application for the appointment of an administrator. She also made another application praying for a temporary injunction restraining the defendants from functioning as directors and also for a temporary mandatory injunction directing them to make over the books of accounts to the administrator. The learned Second Subordinate Judge. Alipore in whose court the suit has been instituted, appointed to administrators for the management of the said company and also granted the interim injunction as prayed for by the plaintiff. The interim injunction was made absolute by the learned Subordinate Judge despite the objections made by the deceased H.K. Somani, the original defendant no.2, and the defendant nos. 1, 3, 8 and 9. 3. Being aggrieved by the order of temporary injunction, the defendant no.1, the company, and the defendant no.3 R.K. Somani, preferred an appeal to the Court of the District Judge, Alipore. The plaintiff and the other defendants were made respondents in the appeal including the defendant no. 2, H.K. Somani, who was the respondent no. 3. 3. Being aggrieved by the order of temporary injunction, the defendant no.1, the company, and the defendant no.3 R.K. Somani, preferred an appeal to the Court of the District Judge, Alipore. The plaintiff and the other defendants were made respondents in the appeal including the defendant no. 2, H.K. Somani, who was the respondent no. 3. During the pendency of the appeal, the defendant no.2 H.K. Somani died on May 4, 1977 On August 11, 1977, the appellants, namely, the defendants nos.1 and 3, filed an application before the learned District Judge praying for recording the fact of the death of H.K. Somani on May 4, 1977. On June 16, 1978, the plaintiff who was the respondent no. 1 in the appeal filed an application, inter alia, contending therein that as the appellants failed to bring on record the heirs and legal representatives of the deceased. H.K. Somani, the entire appeal had abated. It was accordingly prayed by her that a note should be made recording the abatement of the appeal. The said application was opposed by the appellants, namely, the company and R.K. Somani. The learned District Judge by his order no. 85, date July 8, 1978 held, inter alia, that in view of the provision of Order 41 Rule 4 of the Code of Civil Procedure, the deceased. H.K. Somani was not a necessary party, and that accordingly, on his death the cause of action survived against the surviving respondents and there was no question of abatement of the appeal. Upon the said findings, the learned District Judge dismissed the application of the plaintiff respondent praying for recording the abatement of the appeal. Hence, this Rule at the instance of the plaintiff. 4. The only question that is involved in this Rule is whether on the death of H.K. Somani the appeal abated as the appellants had failed to bring his heirs and legal representatives on record within the period of limitation. The test in this regard seems to be whether the deceased was a necessary party to the suit or appeal. There can be no doubt that if a person is not a necessary party, the non-joinder of such a person will not be fatal to the suit or appeal. Similarly, if such a person is joined in a suit or appeal, his death will not result in the abatement of the same. There can be no doubt that if a person is not a necessary party, the non-joinder of such a person will not be fatal to the suit or appeal. Similarly, if such a person is joined in a suit or appeal, his death will not result in the abatement of the same. A necessary party is one in the absence of whom the dispute involved in the suit or appeal cannot be adjudicate. One of the test for deciding whether a person is a necessary party or not depends upon the fact whether any relief has been claimed against him. If no relief is claimed against such a person, he is not a necessary party. In State of Punjab v. Nathu Ram, AIR 1962 SC 89 , it has been observed by the Supreme Court in connection with the question of abatement of an appeal, that ordinarily the considerations which weigh with the Court in deciding upon this que4stion are whether the appeal between the appellants and the respondents other than the deceased can be said to be the properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. 5. Under the provision of rule 4(1) of Order 22 of the Code of Civil Procedure, where one of two or more defendants dies and the right to sue does not survive against the surviving defendant alone, the legal representative of the deceased defendant has to be brought on the record within the period of limitation. A party against whom no relief has been claimed, there can be no question of the cause of action not surviving against the surviving defendant or defendants. Sometimes it is necessary that a suit should be decided in the presence of a party although no relief is claimed against such a party. Such a party is called a proper party and on his death the question of abatement, in our opinion, will not arise. 6. It is, however, contended by Mr. Nani Coomar Chakravarti, learned Advocate appearing on behalf of the plaintiff petitioner that as the legal representatives of the deceased H.K. Somani was not brought on the record, in case of the success of the appellant. 6. It is, however, contended by Mr. Nani Coomar Chakravarti, learned Advocate appearing on behalf of the plaintiff petitioner that as the legal representatives of the deceased H.K. Somani was not brought on the record, in case of the success of the appellant. in the Court below there will be two conflicting decisions, namely, the order of temporary injunction will be operative against the legal representatives of the deceased, but it will stand vacated so far as the appellants are concerned. In our opinion, such a contingency will not arise in view of rule 4 of Order 41 of the Code of Civil Procedure. Rule 4 provide as follows: "Where there are more plaintiffs or more defendants than one in suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of the plaintiffs or defendants, as the case may be." By virtue of rule 2(1?) of Order 44 (42 ?), the provision of rule 4 of Order 41 will also apply to an appeal from an order. Under rule 4 when 4 decree is passed or au order made against several persons and one of whom alone appeals, the decree or order can be reversed against the rest when it proceeds on any ground common to all of them. It is not disputed that the order appealed from proceeds on grounds most of which are common to an the defendants. Indeed, the allegations of the plaintiff are directed against 'be deceased H.K. Somani and his son R.K. Somani. In the circumstances, the provision of Order 41 rule 4 will apply and in case of success of the appellants in the Court below the order appealed from may be reversed in favour of all the defendants including the appellants. In Misra v. Surji. AIR 1950 PC 28, it bas been observed by the Privy Council that the heirs of a deceased respondent having the same interest, one of them on appeal under rule 4. In Misra v. Surji. AIR 1950 PC 28, it bas been observed by the Privy Council that the heirs of a deceased respondent having the same interest, one of them on appeal under rule 4. Thus in view of the provision of rule 4 of Order 41 there can be no apprehension of a conflicting decision There was no conflict of interest between the appellants and the deceased H.K. Somani either in the trial court or in the lower appellate court. No relief was claimed by the appellants against the deceased. H.K. Somani. Ho was really in the position of a proforma respondent in the appeal and consequently not a necessary party at all. 7. It is however urged on behalf of the petitioner that the provision of Order 41 rule 4 applied only at the initial stage of filing the appeal and not after the death of a party and consequent abatement of the appeal. Strong reliance has been placed on behalf of the petitioner on the decision of the Supreme Court in Sri Chan & ors v. M/s. Jagadish Pershad Kishan Chand & ors, AIR 1966 SC 1427 . It pas been observed by the Supreme Court that an appellate court has no Power to proceed with an appeal and to reverse and very the decree in favour of all the plaintiffs or defendants under Order 41 rule 4 When the decree proceeds on a ground common to all the plaintiffs or the defendants appeal from the decree and any of them dies and tile appeal abates to far as he is concerned. In that case one of the appellant before the Supreme Court died and his heirs were not substituted within the prescribed time. it was held that the appeal had abated in its entirety. The facts of the Supreme Court cite are different from those in the instant case. In our view the provision of Order 41 rule 4 will not apply to a case where all the persons who are affected by the decree or order prefer the appeal and one of them dies and his legal representatives are not brought on the record. Rule 4 will apply to a Case where not all but some of the persons affected by the decree M order prefer an appeal and the rest are either not impleaded or having been impleaded us respondents. Rule 4 will apply to a Case where not all but some of the persons affected by the decree M order prefer an appeal and the rest are either not impleaded or having been impleaded us respondents. one of them dies and his legal representatives are not brought on the record. Where however, all the persons who are affected by the decree or order prefer the appeal and one of them dies and his legal representatives are not brought on the record and the decree or order is indivisible the whole appeal in our view, would abate for there might be two conflicting decrees or orders. In such a case Order 41 rule 4 will have no application as held by the Supreme Court in Sri Chand’s case referred to above. This principle has also been laid down by a learned Singly Judge of the Allahabad High Court in Nanee Ahir v. Ganesh Rai AIR 1978 All 100 . 8. The instant case is covered by a later Supreme Court decision in Mahabir Prasad v. Jaga Ram & Ors. AIR 1971 SC 742 In that case, Mahabir Prasad, one of the plaintiffs decree-holders, preferred an appeal against the order of the executing court dismissing the application for execution on the ground that the decree was inexecutable. The defendants judgment debtors and the remaining plaintiffs decree-holders who were also affected by the said order of the executing court, were mad respondents. During the pendency of the appeal Soroj Devi, one of the plaintiffs decree-holders, who was a respondent died. On the prayer made on behalf of the appellants the name of the deceased Soroj Devi was struck off from the array of respondents. The High Court dismissed the appeal holding that as the heirs and legal representatives of Soroj Devi were not brought on the record within the period of limitation, the appeal abated in its entirety. On the prayer made on behalf of the appellants the name of the deceased Soroj Devi was struck off from the array of respondents. The High Court dismissed the appeal holding that as the heirs and legal representatives of Soroj Devi were not brought on the record within the period of limitation, the appeal abated in its entirety. In setting aside the order of the High Court, the Supreme Court observed as follows :- "Competence of the appellate court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim baa 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 I decree or an order had been made on a around which was common to him and others has appalled. That power may be exercised when other persona who were parties to the proceeding before the subordinate court and against whom a decree proceeded 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. The view taken by the High Court cannot, therefore be sustained" 9. The principle of law which has been laid down by the Supreme Court in the statement quoted above overrules the contention made on behalf of the petitioner that the provision of Order-41 rule 4 is available only at the initial stage and not after the death of a respondent. It has also been observed by the Supreme Court that no distinction in principle can be made when a respondent dies and his heirs are not brought on the record, and the non-joinder of a person who is equally affected by the decree, as happened in the case of Ratan Lal Skah v. Firm Lalmandas Chhadamma Lal, AIR 1970 SC 108 . 10. In Mahabir Prasad’s case (supra) the Supreme Court has aha relied on an alternative around. 10. In Mahabir Prasad’s case (supra) the Supreme Court has aha relied on an alternative around. namely; that the appellant Mabahir Prasad being one of the heirs of the deceased Soroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad as a heir and legal representative of Soroj Devi was made. It has been observed any the Supreme Court that where in a proceeding a patty dies and one of the legal representatives is already on the record in another capacity. it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative. In the instant call also the appellant R.K. Somani is one of the heirs of the deceased H.K. Somani and, accordingly in view of the decision of the Supreme Court in Mahabir Prasad's case referred to above there is no question of abatement of the appeal. 11. Much reliance has been placed on behalf of the petitioner on a later decision of the Supreme Court in Dwarka Prasad Singh & ors v. Harikant Prasad Singh. AIR 1913 SC 655. What happened in that case was that a suit for specific performance of a contract of sale was instituted by the plaintiff against the vendor and the subsequent purchaser a who were described as defendant first party and the defendants second party respectively. The plaintiff also made an alternative prayer for a decree for certain amount consisting of part consideration paid and also for certain other amount. The suit was decreed by the trial court for specific performance. The defendant were directed to execute and register a deed of sale in favour of the plaintiffs on payment by the latter to the former a sum of Rs. 77.000/-. In decreeing the suit for specific performance the trial court observed that if it would have refused to decree the main relief of the plaintiffs there would have been no difficulty in passing a decree for the alternative claim against the defendant first party on account of whole conduct the completion of the sale deed in favour of the plaintiff had been made impossible. The defendants second party preferred an appeal to the High Court. The defendants second party preferred an appeal to the High Court. During the pendency of the appeal one of the appellants died and the High Court held that the entire appeal had abated as the heirs of the deceased appellant were not brought on the record as the High Court declined to condone the delay in making the application for substitution of the heirs of the deceased appellant the surviving defendants appellants preferred an appeal to the Supreme Court During the pendency of the appeal before the Supreme Court the vendor who was the defendant first party respondent, died and the Supreme Court dismissed the application of the appellants for substitution of the been of the deceased vendor. The question was whether the abatement of the appeal as against the deceased vendor resulted in the abatement of the appeal in its entirety. In considering the question, the Supreme Court observed that the appeal Court could, under Order 41 rule 4 of tile Code of Civil Procedure reverse the decree for specific performance since the defendants second party filed the appeal and the vendor, who died, bad not joined in the appeal, and that the decree for specific performance proceeded on a around common to both sets of defendants. It was, however, pointed out by the Supreme Court that there was a joint decree in favour of both sets of defendants for the receipt of Rs. 77.000/-. If the decree for specific performance was set aside that part of the decree would also have to go but that could not be done in the absence of the legal representative of the deceased vendor. Further, the Supreme Court observed that the plaintiffs bad claimed against their vendor in the alternative a decree for specific amount con listing of the part consideration paid and certain other amount. If the vendor bad been alive or if his legal representatives had been impleaded in time the Court could, while setting aside the decree for specific performance, grant the alternative prayer which was only made against the vendor. This could not be done after the death of the vendor. If the vendor bad been alive or if his legal representatives had been impleaded in time the Court could, while setting aside the decree for specific performance, grant the alternative prayer which was only made against the vendor. This could not be done after the death of the vendor. Accordingly, it was held that Order 41 rule 4 of the Code of Civil Procedure could not be of any avail to the appellant and the abatement of the appeal so far as the vendor was concerned would prove fatal to the entire appeal, al either inconsistent and contradictory decrees would have to be passed or proper reliefs could not be granted in the absence of a necessary party against that party or his legal representatives. The facts in Dwarka Prasad's case are distinguishable from those in the present case. In the case before the Supreme Court, that provision of Order 41 rule 4 was applicable in so far as the relief against the decree for specific performance of contract was concerned. That decree could be varied in favour of the appellant even though the heirs of the deceased vendor had not been brought on the record. But there was one difficulty namely, that the Court would be prevented from passing any decree in respect of the alternative claim of the plaintiff' against the heirs of the deceased respondents unless they were brought on the record. In that view of the matter, the Supreme Court held that the entire appeal bad abated the question whether the provision of Order 41 rule 4 would apply or not depends on the facts and circumstance of each particular case. So far as the present case is concerned, there is no difficulty in applying the said provision the order appealed from proceeds on grounds, most of which are common to the appellants and the deceased. H.K. Somani. In case of the success of the appellants in the Court below, the order may be varied not only in favour of the appellants, but also in favour of the deceased H K. Somani. Moreover, even on the alterative ground, namely, that R.K. Somani, one of the appellants, is an heir of the deceased H K. Somani and is already on record, there is no question of abatement in view of the decision of the Supreme Court in Mahabir Prasad's case referred to above. 12. Moreover, even on the alterative ground, namely, that R.K. Somani, one of the appellants, is an heir of the deceased H K. Somani and is already on record, there is no question of abatement in view of the decision of the Supreme Court in Mahabir Prasad's case referred to above. 12. Lastly, It has been contended by Mr. Chakravorti that in view of the provision of sub rule (4) which baa been inserted in rule 4 of Order 41(22?) by a Calcutta amendment, the Court has no power to apply the provision of sub-rule (1) of rule 4 of Order 41 (22 ?). Sub-rule (4) provides as follows : "The Court, whenever it sees fir, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." 13. In our opinion, the contention has no substance at all. Sub-rule (4) enables the Court to pronounce judgment against the defendant notwithstanding the death of such defendant under certain circumstances mentioned in that sub-rule. It has enlarged the power of the court and does not, in the least, affect the power of the court under sub-rule (1) of Rule 4. No other point has been argued in the Rule. 14. For the reasons aforesaid, this Rule fails and it is discharged, but there will be no order for costs. 15. The lower appellate court is directed to hear the appeal as expeditiously as possible. Sharma J : agree. Rule discharged.