MOHAMMED ALI v. VALSALAKUMARI — 1987 DIGILAW 437 (KER)

Judgment :- 1. One Chellappa Rowther was a tenant of some properties. All these three revision petitions arose consequent on the resumption proceedings initiated by the landlords. Resumption was allowed. There were appeals and revisions and the matter was remanded for exercise of option by the tenant. Tenant opted for 50 cents in Sy. No. 3171. The option was accepted and the Land Tribunal passed orders on 9-1-1975. Pending appeal before the appellate authority two of the landlords died and the legal representatives were impleaded. From the order of the appellate authority there was revision before this Court and the matter was remanded solely for the purpose of demarcating the 50 cents and fixing compensation. Before the Land Tribunal the legal representatives of the tenant (who also died) contended that fresh application and substitution of the legal representatives of the deceased landlords is necessary. That contention was opposed on the ground that since the legal representatives were substituted in appeal it is not necessary to have a fresh substitution before the Land Tribunal. Land Tribunal impleaded the legal representatives suo mote without an application. That order was first challenged by the tenants in OP 1846 of 1984 and then by AA 80 of 1984, and both were dismissed. Hence CRP 1566 of 1986 was filed by them. 2. Mohammed Ali, one of the legal representatives of the deceased tenant challenged the resumption proceedings in OS 154 of 1984 on the ground that he was not substituted as one of the legal representatives of his deceased father. In that suit he applied for injunction to restrain the proceedings in the resumption matter. That was dismissed and C. M. Appeal filed against that order was also dismissed. CRP 2688 of 1985 was filed against the refusal of injunction. In that suit he also filed IA 1584 of 1984 to call for the records of the resumption case to disprove the contention of the opposite side that he was impleaded and represented by his guardian during his minority and thereafter he himself prosecuted the case. That petition was rejected on the ground that he can produce attested copies of documents and the question of calling for original records will arise only when steps are taken to prove signatures by comparison by expert. C. M. Appeal filed by them was also dismissed and CRP 2686 of 1985 is challenging the same. 3. That petition was rejected on the ground that he can produce attested copies of documents and the question of calling for original records will arise only when steps are taken to prove signatures by comparison by expert. C. M. Appeal filed by them was also dismissed and CRP 2686 of 1985 is challenging the same. 3. CRP 2686 of 1985 has absolutely no merit. The revision petitioner did not satisfy the court of the necessity of calling for any original documents from the Land Tribunal. He did not specify any document. He only wanted to call for the records generally without attempting to produce attested copies. He did not make any attempt to contend or request the court that any signature in any document is not genuine and hence it may be called for and sent for expert opinion along with admitted signatures either produced or to be taken before court. His right, if any, to make such a request at the appropriate time on satisfaction of the requirements is not negatived by the orders. The orders rejecting the prayers do not suffer from any infirmity requiring interference in revision. 4. That is the case with CRP 2688 of 1985 also. Prayer for injunction was negatived by both the courts below on prima facie grounds. When the original tenant Chellappa Rowther died his widow (mother of the petitioner who acted as his guardian during his minority) was called upon by Exts.Bl and B2 affidavit and petition by the landlords to furnish the names of the legal representatives to be impleaded. The names of 11 persons were given by Ext.B3 and they were impleaded. 7th person is Ali who is said to be the petitioner. He now claims to be Mohammed Ali and not mere Ali. He has no case that there is another brother by name Ali or any other brother who was not impleaded as a legal representative. Since there was further dispute that some other legal representative is also there, Exts.B4 and B5 affidavit and petition were filed by the landlords calling for further details and the widow gave Ext. B6 reply stating that the only remaining legal representative is Chellappa Rowther's father. He was also impleaded. All these persons were respondents before the Land Tribunal. There is no case that the widow was hostile to the petitioner or she had any adverse interest. B6 reply stating that the only remaining legal representative is Chellappa Rowther's father. He was also impleaded. All these persons were respondents before the Land Tribunal. There is no case that the widow was hostile to the petitioner or she had any adverse interest. Ext.B8 order in appeal shows that Ali was 6th appellant represented by his mother as guardian. Subsequently Ali became major and Ext.B9 which is the last CRP shows that Ali joined the CRP as the 6th petitioner. In Ext.B10 appeal also 6th appellant is Ali who was a major then. Prima facie indication is that Ali and Mohammed Ali is the same person. Whether anybody impersonated him or not is a matter for evidence. The dismissal of the injunction application on prima facie materials is not going to prejudice him in the suit because final decision will be on evidence to be adduced. The courts below acted within their jurisdiction and exercised their discretion judicially and properly in rejecting the prayer for injunction. There is nothing for interference in revision. 5. Then what remains is only CRP 1566 of 1986. The only question for consideration in that revision is whether an order impleading the legal representatives of a deceased appellant, respondent or revision Petitioner in appeal or revision will enure to the benefit of all the subsequent stages of the suit or whether they have to be impleaded again in the trial court. The relevant provisions are 0.22 R.3 and 4 read with R.11. On the death of a party whether the right to sue survives for or against the surviving parties alone is a matter for the court to examine and decide after hearing the parties. The basic principle underlying 0.22 R.3 and 4 is a facet of natural justice or a limb of audi alteram partem rule. A person must be given an opportunity of being heard before a decision affecting him is recorded. It is as a corollary to this rule that it is provided that when a party dies pending a proceeding and the cause of action survives, the legal representatives should be brought on record. That only means that the legal representatives must be afforded an opportunity before any liability is fastened upon them. It is not the form in which they are given that opportunity that always counts. What is relevant is whether in substance they got an effective opportunity. That only means that the legal representatives must be afforded an opportunity before any liability is fastened upon them. It is not the form in which they are given that opportunity that always counts. What is relevant is whether in substance they got an effective opportunity. The theory of substantial representation could also be made applicable in appropriate cases. So also if some legal representatives are already before the court in another capacity or are brought on record at some stage of the suit, the action may not abate even if there is no strict compliance with the requirements of R.3 and 4. For eg: in a matter involving cress-appeal and cross-objections the requirements are substantially satisfied when in cross-appeal the party occupying the position of an appellant in one appeal and respondent in the other dies and his legal representatives are brought on record in the appeal in which he is the appellant and not in the other appeals where he is a respondent because the subject-matter of both the appeals being the decree under attack, they have an opportunity to support the decree in their favour and challenge the decree adverse to them. 6. This principle could be extended to other areas also. An impleading at one stage of the proceeding may be sufficient for other stages also without afresh impleading for that stage. As early as 1917 the judicial Committee in Brij Indar Singh v. Lala Kanshi Ram (AIR 1917 PC 156) held that substitution of a deceased Party's legal representatives in an interlocutory appeal arising from an order made in a suit would enure for the benefit of the suit and no separate application for substitution is necessary thereafter in the suit. Introduction of a plaintiff or defendant at one stage of the suit is an introduction for all stages even if it was done in the course of an interlocutory application for production of books. That will enure to the benefit of the suit since the party who was impleaded becomes aware of the suit and he has the right to participate in further proceedings. When he is impleaded at one stage he becomes a party to the litigation not only for that stage but for all stages thereafter. There is no question of impleading him at each and every stage thereafter. When he is impleaded at one stage he becomes a party to the litigation not only for that stage but for all stages thereafter. There is no question of impleading him at each and every stage thereafter. That is the case with impleading of a party at the appellate or revisional stage also as a legal representative. Subsequent to the impleading if the appeal or revision is allowed and the case remanded the order bringing the legal representative en record in the appeal or revision will enure also for the trial stages of the suit. This is so even if the appeal or revision is against an interlocutory order. The question whether the decision of the trial court was confirmed, modified or reversed is immaterial for that purpose. This is because appeal is a continuation of the suit. It was so held in N. Jayaram Reddi v. Revenue Divisional Officer (AIR 1979 SC 1393) following an earlier decision of the Supreme Court in Rangubai v. Sunderbai (AIR 1965 SC 1794). 7. But a suit is not a continuation of the appeal or revision and hence the legal position cannot be invoked in the reverse or converse situation. An order made in a suit subsequent to the filing of an appeal will move forward only with the subsequent stages of the suit or appeal or revision taken therefrom and cannot be projected backwards into the appeal that has already been filed. An order bringing the legal representatives of one of the respondents on record in a final decree proceedings cannot enure to the benefit of the appeal filed against the preliminary decree. These principles could be extended to execution proceedings also as held in Panna Lal v. Kanhaiya Lal (AIR 1974 Patna 284). But the mere fact that a legal representative was impleaded at some stage in the suit may not be a justification for not making him a party in the appeal or revision subsequently filed. Only thing is that a fresh application for impleading in accordance with 0.22 R.3 and 4 read wan R.11 may not be necessary. R.12 of 0.22 does not negative the application of the principle to execution. What is intended by R.12 is that execution proceedings will not abate by the death of a party. 8. Only thing is that a fresh application for impleading in accordance with 0.22 R.3 and 4 read wan R.11 may not be necessary. R.12 of 0.22 does not negative the application of the principle to execution. What is intended by R.12 is that execution proceedings will not abate by the death of a party. 8. Suraj Mandar v. Dev Mishra (AIR 1984 Patna 378) is a case in which fifth defendant died even before the suit was dismissed for default, but legal representatives ware not impleaded. In the petition filed by the plaintiff under 0.9 R.9, legal representatives of the deceased 5th defendant were impleaded on the application of the plaintiff and then the suit was restored to file. It was held that the suit was restored to file as against the legal representatives also and after restoration a fresh impleading is not necessary. If fresh impleading is insisted it may happen that in many cases it may be long after the death of the parties and the prayer may be long out of time. When a party is impleaded at some stage of the suit as legal representative of a deceased party, he becomes a party to the suit. Inserting his name thereafter in the plaint in the array of parties is a natural consequence which does not involve amendment of plaint as provided in 0.6 R.17. Omission to carry out his impleading in the plaint, though such entry is necessary, does not have the effect of neutralising the effect of the order impleading him. Inspite of the omission he will continue to be a party. 9. In this case the Land Tribunal passed an order suo mote impleading the legal representatives basing on the order of impleading passed by the appellate authority. That order need be interpreted and understood only as a direction to carry out the impleading already made by necessary entries in the original application. There is nothing for interference in revision. Even if there is any irregularity in that direction it is not material and it does not involve any illegality in the exercise of jurisdiction and no prejudice is also there. All the three revision petitions are therefore dismissed without costs.