Mukhtar Ahmad v. Jalil Shah — 1991 DIGILAW 985 (ALL)

JUDGMENT B.L. Yadav, J. - The defendants have filed the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short the Code) against the decree dated 19.7.67 passed by the Additional Civil Judge, Azamgarh dismissing the Civil Appeal No. 44 of 1966 filed by the appellant as having abated as the plaintiff respondent 1/3 Abul Hasan Shah was not impleaded as one of the respondents, rather one Anwarul Hasan was arrayed as respondent No. 3. As the decree of the trial court was indivisible, hence the appeal cannot be maintained against the other plaintiffs as there was chance of conflicting decree being passed. 2. The plaintiff respondents have filed the suit under order 1 Rule 8 of the Code for permanent injunction restraining the defendants from interfering with the plaintiff's possession over the land which was the graveyard in which the members of the family of plaintiffs and the defendants second set were buried. Even on certain occasions the dead bodies of Muslims of the town of Kopaganj including ancestors of the family of defendants first set,were also buried in this land on payment of remuneration with express sanction of the plaintiffs and defendants 2nd set and their ancestors. The defendants first set have no rights to bury their deads without the express sanction of the plaintiffs and defendants 2nd set. As the defendants first set, the present appellants were threatening to interfere with the peaceful possession of the plaintiff respondents and their right to management over the land in dispute, hence the necessity for filing the suit. 3. The suit was contested by defendants 1 to 8 and 10 to 13 and 13 on the ground that the old settlement plot No. 27 was a public grave yard since the time immemorial and the dead bodies of Muslims of Kopa Ganj are buried in it without any impedimen, and without the permission of anybody. The entire plot No. 27 was a dedicated land and the same vests in the God Almighty. The suit was, however, dismissed. 4. The trial court by its judgment and decree dated 7.9.65 decreed this suit. An appeal was preferred by the defendant appellant in the lower appellate court and the same was abated as Abul Hasan Shah, plaintiff No. 3 was not impleaded, rather in his place Anwarul Hasan was impleaded. The suit was, however, dismissed. 4. The trial court by its judgment and decree dated 7.9.65 decreed this suit. An appeal was preferred by the defendant appellant in the lower appellate court and the same was abated as Abul Hasan Shah, plaintiff No. 3 was not impleaded, rather in his place Anwarul Hasan was impleaded. The decree being indivisible and there being chances of conflicting decrees, the appeal was ordered to abate. 5. Sri K.M. Sinha, learned counsel for the appellants' urged that as it was a suit in representative capacity where a number of persons having the same interest have filed the suit with the permission of the court, consequently even if plaintiff 1/3 or any other plaintiff dies or was not brought on record, the suit or appeal cannot abate. It was next urged that as one of the heirs of plaintiff 1/3 was not brought on record but other heirs including the other plaintiffs were on record, the suit or appeal cannot abate. Reliance was placed on Shitla v. Ram Shabad, 1985 A.C.J. 178; Daya Ram and others v. Shyam Sundari and others, AIR 1965 SC 1049 . It was also brought to my notice that at an earlier stage on an application of respondents the appeal was ordered to abate as one of the heirs was not brought on record. Later on an application was filed by the learned counsel for the appellants indicating that the order directing the appeal to abate, was incorrectly passed as the suit was in representative capacity under order 1 Rule 8 of the Code. On that application having heard both the parties, by order dated 5.4.89 the earlier order dated 25.3.80 was recalled by Hon'ble S.D. Agarwal, J. taking the view that as the suit was under Order 1 Rule 8 if few of the appellants or the respondents died, the appeal cannot abate. In case there were other representatives or respondents to represent the Estate, that order has become final. 6. Sri U.K. Mishra, learned counsel for respondents, refuted the arguments of the learned counsel for the appellants and urged that there was nothing to indicate that the suit was under Order 1 Rule 8 of the Code and in case of plaintiff 1/3 was not brought on record, the appeal was to abate and the impugned judgment and decree was correctly passed. 7. 7. Having heard the learned counsel for the parties the points that fall for consideration are whether in a suit under Order 1 Rule 8 if one of the plaintiffs or his heir was not brought on record and in case other plaintiffs and other heirs were already on record or one heir with correct name was brought on record, can the appeal be abated. As regards the first point suffice it to say that as the suit was filed in representative capacity under Order 1 Rule 8 as is clear from the order dated 5.4.89 passed by Hon. S.D. Agarwala, J., which order has become final and there can be no quarrel that the suit was filed in representative capacity. A bare perusal of the judgment of the trial court would indicate that the suit was filed under order 1 Rule 8 and was a suit in representative capacity. In case one of the plaintiffs was not brought on record or the heirs were not substituted the suit could not abate. 8. In Shitla v. Ram Shabad (supra it was held under para 6 at page 179 that a representative suit is of different character and in case one of the plaintiffs or respondents was not impleaded as party to the appeal, or one of the heirs was not impleaded, the suit would not abate. 9. Similarly in Abdul Rahim and others v. Syed Abu Mohamed Barkat Ali Shah and others, AIR 1928 PC 16 , it was held that in case a suit under Section 92 of the Code was filed by all the plaintiffs and few of them died or were not substituted during the pendency of suit, the suit would not become ineffective or incompetent. Brother S.D. Agarwal, J. has also held by order dated 5.4.89 that if a suit was under Order 1 Rule 8 and one of the plaintiffs has not been Made a party or one of the plaintiffs or the respondents died and the heirs Were not brought on record, the appeal would not abate. 10. Brother S.D. Agarwal, J. has also held by order dated 5.4.89 that if a suit was under Order 1 Rule 8 and one of the plaintiffs has not been Made a party or one of the plaintiffs or the respondents died and the heirs Were not brought on record, the appeal would not abate. 10. In respect of other points suffice it to say that if only one of the heirs was impleaded under Order 22, rule 3 or 4 of the Code, and others were not impleaded, in that event also the impleaded legal representative sufficiently represents the estate of the deceased and the decision if rendered, would be binding even on the heirs who were not brought on record. 11. In Daya Ram v. Shyam Sundari (supra), it has been held that if one of the heirs was impleaded and others were not impleaded, the impleaded heir alone would represent the estate and the decision is binding on other heirs also. I am accordingly of the view that even if plaintiff 1/3 Abul Hasan Shah was not impleaded as plaintiff respondent or in his place Anwarul Hasan was impleaded as respondent No. 3, the civil appeal filed by the defendant appellants before the Additional Civil Judge, Azamgarh would not abate. 12. The matter can be viewed from another angle. The legislature appears to be conscious that in a country like ours where the majority of population lives in remote country side and as often stated by Mahatma Gandhi, father of the Nation, that India lives in villages. 12. The matter can be viewed from another angle. The legislature appears to be conscious that in a country like ours where the majority of population lives in remote country side and as often stated by Mahatma Gandhi, father of the Nation, that India lives in villages. The people were not expected to be well conversant with the proceedings of law and if by inadvertence while filing an appeal if there were so many respondents and one or two of them may not be impleaded as party to the appeal, on this ground alone the appeal need not abate, rather the procedure has been pointed out under Order 41 Rule 20 to the effect that where it appears to the court at the hearing that any person, who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal and he is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that such person be made a respondent. 13. In view of the above provision the court below must have considered the nature of the suit and the legal effect for the non impleadment of plaintiff 1/3. The procedure under Order 41 Rule 20 was sufficient indication that in such matter the court could adjourn the hearing of the appeal, the appeal need not abate, rather the appellant before the lower appellate court must have directed to' implead the correct heir or the correct plaintiff with his Correct name as one of the respondents. Thus the lower appellate Court has committed a substantial error of law in directing the appeal to abate. 14. In view of the premises aforesaid, the judgment and decree passed by the lower appellate court cannot be sustained. 15. Consequently the present appeal is allowed. The judgment and decree of the lower appellate court is set aside. The appeal shall be restored to its original number. The lower appellate court shall direct the appellant to implead the correct person with correct name in place of respondent No. 3, and would decide the appeal on merits according to law. There shall be no order as to costs.