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2004 DIGILAW 332 (HP)

SAHNI DEVI v. PIARO DEVI

2004-12-15

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J. (Oral) :- This application under Order 1 Rule 10 read with Order 22 Rule 3 and 9 and Section 151 of the Code of Civil Procedure read with Section 5 of the Limitation Act has been preferred by the applicants proposed L.Rs. of one of the appellants, namely, Sahni Devi who is stated to have died during the pendency of the appeal on 12.12.2000. Brief facts leading to the filing of the present application are the deceased Sahni Devi and Phulan Devi, defendants-appellants have preferred RSA No. 102 of 1995 against the judgment and decree dated 30.1.1995 passed by the learned District Judge, Hamirpur. The appeal was admitted on 28.4.1995. Another appeal, i.e. RSA No. 122 of 1995 has been preferred against the same judgment and decree by the respondent. The said appeal was admitted on 1.5.1995 and was ordered to be listed alongwith RSA No. 102 of 1995. During the pendency of the appeals, Smt. Sahni Devi one of the appellants in RSA No. 102 of 1995 and one of the respondent in RSA No. 122 of 1995 admittedly died on 12.12.2000. The respondent non applicant herein, filed CMP (M) No. 68 of 2001 in RSA No. 122 of 1995 for bringing on record the L.Rs. of deceased Sahni Devi, which not being contentions was allowed by the learned Registrar General of this Court in exercise of delegated powers of this Court vide order dated 18.6.2001 thereby impleading the L.Rs. of the deceased including Ram Lai as respondents in RSA No. 122 of 1995. On 2.5.2002, said Ram Lai also died. The non-applicant, therefore, filed CMP (M) No. 360 of 2002 in RSA No. 122 of 1995 for bringing on record the L.Rs. of said Ram Lai. The said application was also allowed and thus applicants, no. 1 and 2 herein, were also ordered to be brought on record, as the respondents, in place of said Ram Lal. The applicants or the appellant herein, however, did not take any step to (bring on record the legal representatives of deceased Sahni Devi and Ram Lal at the appropriate time but moved the present application on 5.8.2004 for condonation of delay in making the application setting aside the abatement, if any and to bring them on record in place of deceased Sahni Devi and Ram Lal. 2. 2. It has been averred in the application that said Ram Lai was perusing the litigation throughout. Therefore, the applicants and the appellant were not aware of the exact position of the appeal. In the first week of July, 2004 applicant Soni Thakur came to Shimla to contact the lawyer and acquired knowledge about the filing of the appeal by appellant Phulan Devi and deceased Sahni Devi otherwise the applicants were under the impression that the respondent alone has preferred the appeal. It is also claimed that, the applicants and appellant herein did not know much about the procedure etc. hence this application. 3. The respondent-non-applicant resisted the application claiming that in view of the applications having been filed by the non-applicant in RSA No. 122 of 1995, the applicants were fully aware of the litigation and the orders passed therein. Therefore, from the acts and conduct of the applicants, it is clear that they had been grossly negligent in pursuing their appeal and thus the application deserves to be dismissed. 4. I have heard the learned Counsel for the parties and have pursued the record. 5. The status of the applicants as the legal representatives, dates of deaths of Sahni Devi and Ram Lai deceased, filing of the earlier applications in RSA No. 122 of 1995 by the non-applicant because of the death of the aforesaid persons are the facts, which are not in dispute. The submission of the applicant is that the litigation was being pursued by deceased Ram Lai and the applicants or the appellant, were not aware of the stages of the litigation, therefore, could not take appropriate steps at the approximate stage and that since RSA No. 102 of 1995and RSA No. 122 of 1995 arise out of the same judgment, therefore, the legal representatives/applicants having been brought on record in RSA No. 122 of 1995, they deserve to be formally brought on record in RSA No. 102 of 1995. 6. On the other hand, the learned Counsel for the respondent contended that keeping in view the gross negligence on the part of the applicants in taking steps for bringing them on record within the period of limitation the application deserves to be dismissed. 7. 6. On the other hand, the learned Counsel for the respondent contended that keeping in view the gross negligence on the part of the applicants in taking steps for bringing them on record within the period of limitation the application deserves to be dismissed. 7. It is not in dispute that RSA No. 102 of 1995 arise out of the same judgment and decree though one is preferred by the defendant and another by the plaintiffs. It is also not in dispute that legal representative of the deceased appellant Sahni Devi and her legal representative Ram Lai had been brought on record in RSA No. 122 of 1995. In these circumstances, question arises as to whether in view of the legal representatives having been brought on record in RSA No. 122 of 1995. In these circumstances, question arises as to whether in view of the legal representatives having been brought on record in RSA No. 122 of 1995, can RSA No. 102 of 1995 be held to have abated and the present application deserves dismissal. 8. In N. Jayaram Reddi and another v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393, an order was passed in a reference under Section 18 of the Land Acquisition Act enhancing Compensation. Separate appeals were filed before the High Court both by the Government (the Acquiring Authority) and the claimants. One of the complaints died during the pendency of the appeals and his legal representatives were brought on record in his place in the appeal filed by the claimants. However, no steps were taken to bring the legal representatives on record in the Government appeal. Both the appeals were heard together by the High Court which dismissed the appeal of the claimants but allowed the Government appeal. In appeal by a special leave before the Apex Court, it was submitted that the Government appeal had abated for failure to bring on record the legal representative of the claimants and automatically stood dismissed thus could not have been heard by the High Court while entertaining the claimants appeal. In appeal by a special leave before the Apex Court, it was submitted that the Government appeal had abated for failure to bring on record the legal representative of the claimants and automatically stood dismissed thus could not have been heard by the High Court while entertaining the claimants appeal. Answering the question which had arisen, the Apex Court held as under :- "Now, if the discernible principle underlying Rules 3 and 4 of the Order 22 is that the legal representatives of the deceased likely to be affected one way or the other by the decision in appeal must be before the Court and must be heard before a decision affecting their interests in recorded, it would stand fully vindicated when in cross-appeals a party occupying the position of an appellant in one appeal and respondent in the other appeal dies and his legal representatives are brought on record in the appeal in which he is the appellant and not in the other appeal wherein 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 question the correctness of the decree adverse to them. Even if they were brought on record as legal representatives of the deceased in his capacity as respondent in the cross-appeal, they could not have further advanced their case nor could they have done anything more than what they would do in their capacity as legal representatives of the deceased appellant unless they were precluded from contending that they being not on record cannot support or controvert the decree. They have thus the fullest opportunity of putting forth their grievance against and in support of the decree. Their position was not the least likely to be affected one way or the other even if they were not formally impleaded as legal representatives of the deceased in his capacity as respondent. To say that cross-appeals are independent of each other is to overlook the obvious position which parties adopt in cross appeals. Interdependence of cross-appeals is the same as interdependence of appeal and cross objections because as in the case of appeal and cross objections a decision with regard to appeal would directly impinge upon the decision in cross-objections and vice versa. Interdependence of cross-appeals is the same as interdependence of appeal and cross objections because as in the case of appeal and cross objections a decision with regard to appeal would directly impinge upon the decision in cross-objections and vice versa. Indubitably the decision in one of the cross appeals would directly impinge upon the decision in the other because both ultimately arise from the same decree. This is really the interdependence of cross appeals and it is impossible to distinguish cross appeals from appeal and cross objection. Unfortunately this interdependence was overlooked by the Madras High Court when the scope of cross appeals arising from the same decree and appeal and cross objections in respect of the same decree were not examined in depth in Shankaranaraina Saralayas case (AIR 1931 Mad. 277). This approach is merely an extension of the principle well recognized by Courts that if legal representatives are before the Court in the given proceeding in one capacity it is immaterial and irrelevant if they have not formally impleaded as legal representatives of the deceased party in another capacity. Shorn of embellishment, when legal representatives of a deceased appellant are substituted and those very legal representatives as legal representatives of the same person occupying the position of respondent in cross appeal are not substituted, the indisputable outcome would be that they were on record in the connected proceeding before the same Court hearing both the matters, in one capacity though they were not described as such in their other capacity, namely, as legal representatives of the deceased respondent. To ignore this obvious position would be giving undue importance to form 1 rather than substance. The anxiety of the Court should be whether those likely to be affected by the decision in the proceeding were before the Court having full opportunity to canvass, their case. Once that is satisfied it can be safely said that the provisions contained in Rules 3 and 4 of Order are satisfied in a given case. The anxiety of the Court should be whether those likely to be affected by the decision in the proceeding were before the Court having full opportunity to canvass, their case. Once that is satisfied it can be safely said that the provisions contained in Rules 3 and 4 of Order are satisfied in a given case. To take another view would be to give an opportunity to the legal representatives of a deceased party in an appeal having had the fullest opportunity to canvass their case through the advocate of their choice appearing in cross appeals for them and having canvassed their case and lost, to turn round and contend that they were not before the Court as legal representatives of the same person in his other capacity, namely, respondent in the cross appeal. In other words, those legal representatives were before the Court all throughout the hearing of the appeal as parties to the appeal and canvassed their case and were heard by their advocate and they had the full opportunity to put forth whatever contentions were open to them in the appeals and to contest the contentions advanced against them by the opposite side and yet if the other view is taken that as they were not formally impleaded as legal representatives of the deceased respondent in the cross appeal that appeal has abated, it would be wholly unjust. It is very difficult to distinguish on principle the approach of the Court in appeals and cross objections and in cross-appeals in this behalf. No principle of law can distinguish this deviational approach. The cases which have taken the view that in cross appeals the position is different than the one in appeal and cross objections do not proceed on any discernible legal principle. Nor can they be explained by any demonstrable legal principle but in fact they run counter to the established legal principle." 9. In view of the above it can be, safely held that where cross appeals are preferred against a common decree or an award and in the cross appeals the parties are arrayed in rival position and where one party as appellant dies and his legal representatives are brought on record though those very legal representatives are not substituted in his place which he adopted as a respondent in the cross appeal, the cross appeal would not abate. 10. 10. In view of the above settled proposition in law, RSA No. 102 of 1995 cannot be said to have abated and the present application thus has been rendered only a formal application for correction of the title of the appeal being RSA No. 102 of 1995. 11. In view of the above, the present application is allowed and the applicants are ordered to be brought on record in place of the deceased.