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1998 DIGILAW 66 (HP)

JASWANT SINGH v. GANGI DEVI

1998-05-14

SURINDER SARUP

body1998
JUDGMENT SURINDER SARUP, J.—This order/judgment will dispose of CMP(M) No. 658/97, CMP(M) No. 659/97 and also as a consequence thereof, R.S.A. No. 142/93. 2. The first application has been filed by the plaintiffs-appellants under Order 22, Rules 4 and 9 read with Section 151, C.P.C. for setting aside the abatement, if any, and for bringing on record the legal representatives of Lachhman/respondent No. 2 who has died on 18.6.1993. The second application is under Section 5 of the Limitation Act for condoning the delay in filing the other application for setting aside the abatement. 3. In order to appreciate the point involved for consideration, it would be necessary to refer to some facts concerning the main appeal. 4. The plaintiffs-appellants had filed a suit for permanent injunction restraining the defendants-respondents from interfering with the court-yard (Sehan) of the plaintiffs-appellants shown as ABCD and the structure (Taur) shown as CDEFG in the site plan attached with the plaint, which according to the plaintiffs-appellants is in their ownership and possession. They also prayed for possession of the suit land by way of demolition of the verandah and a bathroom allegedly constructed by the defendants-respondents during the pendency of the suit. 5. The suit was contested by the defendants-respondents on the plea that they are having their Abadi and cattleshed comprising Khasra No. 1081 since their forefathers, which is the Khasra No. in dispute. It was also pleaded that the defendant-respondent Paras Ram has raised a temporary bathroom on Khasra No. 1916/547 with which the plaintiffs-appellants had no concern. 6. Three issues were framed on the pleadings of the parties by the trial Court who after the trial was concluded, decreed the suit of the plaintiffs-appellants to the effect that the defendants-respondents are restrained from interfering with the possession of the plaintiffs-appellants over the suit land in any manner till partition. Decree for possession was also passed by demolition of the varandah and bathroom raised during the pendency of the suit by the defendants-respondents. This decree was passed by the judgment of the Sub-Judge, 1st Class (II), Hamirpur, dated 22.1.1986. 7. The defendants-respondents went up in appeal which was heard and decided by the learned District Judge, Hamirpur and he by his judgment and decree dated 12.4.1993 reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiffs-appellants. This gave rise to the present second appeal. 8. 7. The defendants-respondents went up in appeal which was heard and decided by the learned District Judge, Hamirpur and he by his judgment and decree dated 12.4.1993 reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiffs-appellants. This gave rise to the present second appeal. 8. Before coming to the question of abatement, the merits of the application under Section 5 of the Limitation Act are to be considered. It has been pleaded therein that the learned Counsel for the plaintiffs-appellants by his letter dated 20.8.1997 informed them that the respondent No. 2 Lachhman had died about four years ago and his legal representatives were to be brought on record for which they were asked to supply necessary information immediately. The appellants could not collect the requisite information. Reminder was also issued by the learned Counsel on 9.9.1997 about the same. One of the appellants contacted the learned Counsel on 13.9.1997 along with requisite information regarding the death and legal representatives of Lachhman respondent No.2. On the basis of the information supplied to him, learned Counsel prepared the application under Order 22, Rules 4 and 9 read with Section 151, C.P.C. as well as the application for condonation of delay on 13.9.1997. 9. The record shows that both these applications were filed on 15.9.1997. Para No. 4 of the application for condonation of delay is relevant for the purpose as to whether sufficient cause has been shown for condoning the delay or not. It has also been mentioned that there is some delay in filing the application under Order 22, Rules 4 and 9 read with Section 151, C.P.C. i.e. for impleading the legal representatives and setting aside the abatement, if any, but it has occurred due to lack of knowledge of the appellants that such an application is required to be filed by them. Shorn of all embellishments, in a nutshell, what this means is that the appellants were not aware of the legal provisions that an application for bringing on record the legal representatives of the deceased respondent No. 2 was to be filed within the prescribed period of limitation which is 90 days and in case the same was not done within the prescribed time, to apply for setting aside the abatement of the appeal, if any, within 60 days thereafter, which is also the legal provision. The appellants have missed the bus on both counts for the reasons advanced by them that they were not aware that they were required to take such steps. Even taking the equity to be in their favour, this Court is powerless in acceding to their request because the ground mentioned in the application for condoning the delay is legally untenable. There is, thus, no escape from the conclusion that the prayer for condoning the delay has to be declined. I order accordingly and the CMP (M) No. 659/97 stands disposed of, as such. 10. Now, coming to the question as to whether the appeal has abated as a whole in the absence of the legal representatives of the respondent No. 2. The question is to be seen as to whether the appeal is heard on merits qua the other defendants-respondents debarring the said deceased respondent No. 2; and in case, on merits, the appeal is allowed and the judgment and decree of the trial Court are deemed fit to be restored after setting aside the judgment and decree of the lower appellate Court; the effect would be that qua the other respondents than the deceased respondent No. 2 Lachhman, the decree for permanent injunction as well as possession shall prevail. On the other hand, qua the legal representatives of the said deceased Lachhman respondent No. 2, there will be no restraint order in the form of injunction or decree for possession which can be executed. In other words, it would amount to two contradictory decrees in respect of the same parties. 11. It is by now well settled, as per the case law, over a long and hallowed period of time right from the decisions of the Privy Council down to the modern times of the rulings of the Apex Court that in such eventuality i.e. where two contradictory decrees are to be-passed, the cause of action of the defaulting party abates as a whole, meaning thereby that the present appeal abates as a whole. 12. The matter can be looked into from another angle also. The decree for injunction as passed by the trial Court was one joint and indivisible decree as against all the defendants-respondents. 12. The matter can be looked into from another angle also. The decree for injunction as passed by the trial Court was one joint and indivisible decree as against all the defendants-respondents. One of the contesting defendants-respondents i.e. Lachhman having died and his legal representatives having not been brought on record within the time prescribed by law, even the abatement not having been got set-aside within the further time prescribed by law, the appeal would abate qua his legal representatives. That would obviously mean that they would be at liberty to interfere in the possession of the plaintiff -appellants over the suit land, notwithstanding the decree as against the other defendants-respondents. In other words, that decree if passed in appeal on merits would be illusory insofar as the plaintiffs-appellants are concerned. Even from a practical and pragmatic approach, the appeal must abate as a whole. 13. In fairness to Shri B.N. Gupta, learned Counsel for the defendants-respondents, he has cited a number of rulings in support of the contention that the appeal abates as a whole in the facts and circumstances referred to above. He has first drawn my attention to, as yet an unreported judgment of this Court given in the case of Shri Ram Prakash Kapur and others v. Smt. Santosh Kumar/ and others, RFA No. 67 of 1990, decided along with Shri Ram Prakash Kapur and others v. Mrs. Santosh Malhotra and others, RFA No. 79/90, on 10.9.1997. On the facts of that case, while relying upon several reported judgments of the Apex Court and other High Courts, the Bench came to the conclusion that the appeal abated as a whole in view of the death of one of the parties in the case and failure of the legal representatives to come on record. 14. Shri B.N. Gupta has also cited a number of rulings of the Apex Court, three of them may be noticed here. In Papanna and another v. State of Karnataka and others, (1996) 1 SCC 291, it was held that in case of the death of one of the appellants and his legal representatives not having been brought on record, the decree being common to all the appellants and being indivisible, the appeal stood abated against all. In Papanna and another v. State of Karnataka and others, (1996) 1 SCC 291, it was held that in case of the death of one of the appellants and his legal representatives not having been brought on record, the decree being common to all the appellants and being indivisible, the appeal stood abated against all. To the extent that the decree in the present case as passed by the trial Court is also common to all the appellants and being indivisible, the said ruling of the Apex Court applies to the present case and applying that test, the present appeal abates as a whole as already indicated hereinabove. 15. In Mukhtiar Singh and another v. Kishan Kaur (Smt.) and others, (1996) 7 SCC 299, the question for consideration was that whether the appeal against the natural heirs of the deceased for declaration of title to, and alternatively for possession had abated. There the lands belonging to the deceased, on the basis of a will said to have been executed in favour of the appellants by the deceased and one of the defendants died during the pendency of the suit and the application for impleading the legal representatives was filed after long and unexplained delay. In such circumstances, it was held by the Apex Court that the High Court had rightly come to the conclusion that the mutation being joint in the names of the defendants, the suit abated as a whole and could not proceed against other defendants. Although, the facts in that case were different from the present case but one thing which can be culled out from that ruling is that therein also an application for impleading the legal representatives was filed after long and unexplained delay which is also the fact here. To that extent, this ruling also applies to the contention of Shri B.N. Gupta. 16. He has lastly invited my attention to the case of Municipal Council, Mandsaur v. Fakirchand and another, AIR 1997 SC 1251. That was a case under the Hindu Law pertaining to coparcenery property. It was found on the facts that the property in dispute was undivided property of the joint owners who had inherited their fathers interest. On the death of one of joint owners during appeal and non-substitution of his legal representatives, the appeal was held to be abated as a whole. It was found on the facts that the property in dispute was undivided property of the joint owners who had inherited their fathers interest. On the death of one of joint owners during appeal and non-substitution of his legal representatives, the appeal was held to be abated as a whole. This ruling also supports the legal contention that on the facts of this case, the appeal must abate as a whole. 17. For the reasons recorded above, I have not been able to persuade myself to accept the plea of Shri Kuldip Singh, learned Counsel for the appellants-plaintiffs that the appeal only abates qua the share of Lachhman deceased and not as a whole. Consequently, the application for bringing on record the legal representatives of the Lachhman deceased respondent No. 2 is rejected. 18. In the result, the main appeal i.e. No. 142/93 is also dismissed as having abated in toto. Appeal dismissed.