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2008 DIGILAW 3493 (MAD)

D. Saraswathi v. Manickam Arumugam & Others

2008-09-22

K.K.SASIDHARAN

body2008
Judgment :- K.K. Sisidharan, J. This second appeal is directed against the judgment and Decree in A.S.No.46 of 2004 dated 30.11.2005 on the file of the Principal District Judge, Dharmapuri reversing the judgment and Decree dated 22. 2004 in O.S.No.186 of 1993 on the file of the Subordinate Judge, Dharmapuri, Plaintiff is the appellant in the present second appeal. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. .3. The suit O.S.No.186 of 1993 has been preferred by the plaintiff against the defendants praying for a decree of partition and separate possession or her 1/8th share in the property in schedule I and III and for 1/4th share in the schedule II and for other consequential reliefs. 4. It was the case of the plaintiff that herself, defendants 1 to 4 as well as 5th defendant are the children of one Manickam Chattiar. The 6th defendant is the widow of the said Manickam Chettiar and mother of the defendants 1 to 5. Defendants 7 to 9 are the legal heirs of late Sundaresan, deceased son of Manicakam Chettiar. It was the case of the plaintiff that her father Manickam Chettiar received his share from his father’s ancestral property and a small portion of the tiled house and a vacant site was allotted to him. He also got small piece of land at Kudivehalli village and all the properties are in Dharmapuri District. The property received by Manickam Chettiar as per the partition deed dated 9. 1917 were of much value and income were also very high. Therefore, the said Manickam Chettiar who was a young boy at the time of his father’s death was dependent on his elder brother Thiru. Marimuthu Chettiar. Both the brothers lived together and carried on their business and subsequently, they acquired extensive property. Subsequently, the self acquired property of Manickam Chettiar and his brother were partitioned as per two registered documents dated 14. 1945 and 13. 1946 and since then, Manickam Chettiar enjoyed his property with separate possession. The plaintiff was assisting her father in his business till her marriage and was also managing the property. The said Manickam Chettiar died intestate in the year 1957, leaving behind him the plaintiff and other legal heirs. .5. 1945 and 13. 1946 and since then, Manickam Chettiar enjoyed his property with separate possession. The plaintiff was assisting her father in his business till her marriage and was also managing the property. The said Manickam Chettiar died intestate in the year 1957, leaving behind him the plaintiff and other legal heirs. .5. The second defendant was unemployed and was maintained by his father and he was running a petty shop besides managing the family properties for and on behalf of other co-shares and he was also cultivating small pieces of adjoining lands. Defendants 3 and 4 as well as deceased son of Manickam Chettiar by name Sundaresan were working in different capacities and they were also using the said income for the maintenance of the family. With the funds so provided, mango and coconut trees were raised in the said property. The property was jointly owned by all the co-sharers and 2nd defendant has been managing the same. However, 2nd defendant did not distribute the income between the sharers but on the other hand, he appropriated the entire income for himself and purchased property in his name as well as in the name of his wife. The 2nd defendant also unauthorizedly sold some of the Items of joint property without permission from the co-owners and out of the sale consideration and income from the joint family, he purchased some property in his name as well as in his wife’s name. All such acquisitions were included in schedule III. Since they have been purchased out of the income from the schedule property, the plaintiff has laid the suit for partition and separate possession. 6. The suit was mainly contested by defendants 4, 7, 8 and 9 and the defendants 1 and 2 remained ex parte. Though an application was filed by the plaintiff under Order 22 Rule 1 C.P.C., with respect to the legal heirs of the deceased 2nd respondent, no orders were passed in the said application. 7. The learned trial Judge after framing necessary issues, decreed the suit. 8. The judgment and Decree of the trial Court was taken up by the defendants 4, 7, 8 and 9 before the Principal District Judge, Dharmapuri in A.S. No.46 of 2004. 9. 7. The learned trial Judge after framing necessary issues, decreed the suit. 8. The judgment and Decree of the trial Court was taken up by the defendants 4, 7, 8 and 9 before the Principal District Judge, Dharmapuri in A.S. No.46 of 2004. 9. The main contention in the first appeal was in relation to abatement of suit against defendants 1 and 2 on account of the failure of the plaintiff to implead the legal heirs of the deceased defendants 1 and 2. The learned First Appellate Judge found that the defendants 1 and 2 died long before the disposal of the suit and in the judgment and Decree they were not shown to be dead and no petition also appears to have been filed under Order 22 Rule 4 C.P.C. and accordingly, dismissed the very suit by setting aside the judgment and Decree of the Trial Court. 10. Aggrieved by the said judgment and Decree, the unsuccessful plaintiff has come up by way of the present second appeal. 11. At the time of admitting the second appeal, the following substantial questions of law were framed for consideration: “(1) Whether the first appellate Court was justified in holding that the suit shall abate against defendants 1 and 2 who were non contesting, ex parte defendants merely because their legal representatives have not been brought on record, as it is useless substitution and the decree when passed is binding not only on these ex parte defendants but also on their legal representatives and there can be no abate at all in such circumstances even against them as held by AIR 1983 Allahabad 368 at 371. .(2) Did the first appellate Court correctly interpret the provision of law Order 22 Rule 4 .(4) of C.P.C. and correctly understood the ratio of various authorities cited before him including AIR 1992 Madras 159, AIR 1983 Allahabad 368 and AIR 1959 Madras 309.” 12. Thiru. .(2) Did the first appellate Court correctly interpret the provision of law Order 22 Rule 4 .(4) of C.P.C. and correctly understood the ratio of various authorities cited before him including AIR 1992 Madras 159, AIR 1983 Allahabad 368 and AIR 1959 Madras 309.” 12. Thiru. V. Raghavachari, learned counsel appearing for the appellant contended that the failure to take recourse to the provisions of Order 22 Rule 4 C.P.C. should not have been taken as a ground for setting aside the very decree granted by the trial Court, as according to him, even without, a formal application, the lower Court could have dispensed with the necessity of bringing the legal heirs of the deceased defendant who failed to file written statement and remained ex parte during the trial. 13. Thiru. T.R. Rajaraman, learned counsel appearing for the respondents contended that the suit against the defendants 1 and 2 got abated on account of the non-impleading of the legal heirs of the deceased defendants and as such, it cannot be said that the First Appellate Court was not correct in its view that the suit against such defendants have abated and consequently, no decree could have been passed against those defendants. It was also pointed out that the very decree of the Trial Court as well as the judgment proceeds as if the defendants 1 and 2 were alive as on the date on which preliminary decree was passed and therefore, the Appellate Judge was justified in his conclusion that the decree passed against defendants 1 and 2 was legally unsustainable. 14. It is found from the judgment and Decree impugned in the present appeal that the suit in O.S.No.186 of 1993 has been preferred by the present appellant against the respondents. The defendants 1 and 2 were set ex parte consequent to their nonappearance. They also failed to file written statement within the time granted by the Court. 15. The first defendant died on 28. 2003 and the legal heirs of the said respondent were not impleaded as party to the proceedings. Neither an application nor an memo has been filed by the appellant in respect of the legal heirs of the deceased. Similarly, the second defendant died on 10. 2000 and the plaintiff appears to have filed an application on 26. 2002 to bring the legal representatives on record. Neither an application nor an memo has been filed by the appellant in respect of the legal heirs of the deceased. Similarly, the second defendant died on 10. 2000 and the plaintiff appears to have filed an application on 26. 2002 to bring the legal representatives on record. However, no orders have been passed either to allow the said application or to reject it. 16. The main issue in the O.S.No.186 of 1993 was in respect of the dispute as to whether the property in item I and III were the separate properties of deceased Manickam Chettiar and as to whether property in Item II was purchased with the income from the property in Items I and III. It was the case of the plaintiff that Item II was purchased with the income from the property in items I and III. The learned trial Judge found that Item II was the separate property of Manickam Chettiar and as he died intestate, his property devolved on his children viz., the plaintiff as well as defendants 1 to 4 as well as the legal heirs of the deceased Sundaresan. Accordingly, the plaintiff was found to be entitled to an extent of 1/6th share in Item II. With respect to Items I and III, plaintiff was allotted 1/7th share. 17. Admittedly, the defendants 1 and 2 were entitled to a share in the property. The Decree in question has been passed by the learned trial Judge subsequent to the death of defendants 1 and 2 and no attempt was made by the learned trial Judge to pass orders in the application filed by the petitioner to implead the legal heirs of the deceased/second defendant. With respect to the death of first defendant, no application has been filed to implead the legal heirs. Since the defendants 1 and 2 were found to be necessary parties for the disposal of the case, the learned trial Judge should have directed the plaintiff to take steps. In case it was the case of the learned trial Judge that there was no necessity to implead the legal heirs of the deceased defendants 1 and 2 since they failed to file Written Statement and were declared ex parte, nothing prevented the learned trial Judge from passing appropriate orders as provided under Order 22 Rule 4 C.P.C. 18. In case it was the case of the learned trial Judge that there was no necessity to implead the legal heirs of the deceased defendants 1 and 2 since they failed to file Written Statement and were declared ex parte, nothing prevented the learned trial Judge from passing appropriate orders as provided under Order 22 Rule 4 C.P.C. 18. The learned Appellate Judge having found that the suit against the defendants 1 and 2 had already abated and that the death of those defendants were not even shown in the judgments as well as in the Decree, held that as death in question has happened prior to the passing of judgment, the suit against the defendants 1 and 2 got abated. However, the learned Appellate Judge dismissed the entire suit on the ground of abatement. 19. Order 22 Rule 1 C.P.C. and were particularly Order 22 Rule 4 deals with procedure in case of death of one of several defendants or of sole defendant. Even though Rule 4 (1) mandates that in case where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. However, sub-Rule (4) to Rule 4 is an exception to the provision regarding impleading the legal representatives of the deceased defendant inasmuch as the said sub-clause permits the Court to exempt the plaintiff from the necessity to substitute the legal representative who has failed to file Written Statement or who having filed it, has failed to appear and contest the suit at the hearing. Therefore, in cases wherein one of the defendants failed to file Written Statements as well as in cases wherein they failed to appear and contest the proceeding, it would be open to the Court from substituting the legal representatives of the deceased defendant. 20. Therefore, in cases wherein one of the defendants failed to file Written Statements as well as in cases wherein they failed to appear and contest the proceeding, it would be open to the Court from substituting the legal representatives of the deceased defendant. 20. Rule 4(1) and Rule 4(3) applies in the case of death of defendant and as per Rule 4 (1) legal representative of the deceased defendant could be made as a party to the proceeding on an application made in their behalf and no such requirement is found mentioned in sub-Rule 4 of Rule 4 C.P.C. Therefore, it is evident that even without a formal application filed by the plaintiff, it would be open to the Court to pass order under Sub rule 4 of Rule 4 of C.P.C. and such provision has been incorporated for the disposal of the proceeding without further dragging the matter by causing the legal representatives of the deceased defendant who failed to file Written Statement or who failed to appear even after filing of such statement. 21. Thiru. V. Ragavachari, learned counsel appearing for the appellant by placing reliance on the judgment of a learned Judge of this Court in Velappan Pillai v. Parappan Panickar and Others AIR 1969 Madras 309: (1969) 1 MLJ 528, contended that the provisions of Order 22 Rule 4(4) could be availed of at anytime before judgment. The learned counsel also relied on the judgment of the Allahabad High Court in Mohammed Mushtaqeem and Others v. Aftab Ahmad and Others AIR 1983 Allahabad 368 for the proposition that power of exemption conferred on Court as per Order 22 Rule 4(4) could be exercised even without an application being moved by the plaintiff in that behalf. 22. Thiru. T.R. Rajaraman learned counsel appearing for the respondent placed reliance on the judgment of the Apex Court in Zahirul Islam v. Mohammed Usman (2003) 1 SCC 476 in support of his contention that the plaintiff must seek permission of the Court under Order 22 Rule 4(4) C.P.C., and in case the plaintiff failed to obtain permission, the proceeding against such defendant got abated. 23. In the present case, admittedly, defendants 1 and 2 were having share in the property. Though the said defendants have not filed Written Statement, the fact remains that their death occurred long prior to the passing of judgment. 23. In the present case, admittedly, defendants 1 and 2 were having share in the property. Though the said defendants have not filed Written Statement, the fact remains that their death occurred long prior to the passing of judgment. Now because of the preliminary Decree, legal heirs of the defendants 1 and 2 are bound by the Decree even though they were not declared as the legal representatives in the suit. The judgment and Decree of the trial Court failed to include the death of defendants 1 and 2. Even though memo filed in respect of second respondent was recorded no such memo or application under Order 22 Rule I.P.C. has been filed in respect of the first defendant. 24. The learned Appellate Judge dismissed the entire suit on the basis of such technicalities without permitting the plaintiff to take steps under Order 22 Rule 1 C.P.C. to implead the legal representatives of the deceased defendant or to file an application under Order 22 Rule 4(4) for exemption. The issue was decided more on account of technicalities by the learned Appellate Judge and as such, I am of the view that the second appeal has to be allowed by setting aside the judgment and decree of the Appellate Court for the purpose of impleading the legal heirs of the first defendant. 25. In the decision R.N. Jadi Brothers v. Subhashchandra (2007) 6 MLJ 59 : (2007) 9 Scale 202, the Apex Court considered the procedural law vis-à-vis substantive law and held thus at p.63. of MLJ: “9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions or C.P.C. or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. 10. The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. 11. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. 10. The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer. 11. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex dabito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as much substantive. Sushil Kumar Sen v. State of Bihar. 12. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth). A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath v. Rajesh). 13. Processual law is not to be a tryant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” 26. The scope and ambit of jurisdiction under Section 100 of the Code of Civil Procedure came up for consideration before the Apex Court in hero Vinoth v. Seshammal AIR 2006 SC 2234 : (2006) 5 SCC 545 : (2006) 3 MLJ 121, and after considering a catena of decisions on the said point, the Apex Court in paras 19 and 20 held thus at p. 127 of MLJ: “19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.” (emphasis supplied) 20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a Larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Moray held that whether the trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference. (See Kondiba Dagadu Kadam v. Savitribai Sopan Gujar).” (emphasis supplied) 27. Accordingly, the Second Appeal is allowed by setting aside the judgment and decree dated 30.11.2005 in A.S.No.46 of 2004. The substantial question of law is answered to the effect that the legal heirs of the first defendant not bound by the judgment and decree dated 22. 2004 in O.S.No. 186 of 1993 as they were not made parties to the suit and as there was no order of exemption as provided under order 22 Rule 4(4) of C.P.C. There is no order as to costs. 28. The suit in O.S.No.186 of 1993 is remitted to the trial Court for the purpose of enabling the plaintiff to file appropriate application under Order 22 Rule 1 of C.P.C. or under order 22 Rule 4(4) C.P.C. as wall as to set aside the abatement. While considering the application to sat aside the abatement the learned trial Judge shall take into account the pendency of the proceedings before the First Appellate Court as well as before this Court and appropriate orders shall be passed on merits and as per law. Since the legal representatives of the first defendant ‘has not been impleaded in the suit O.S.No.186 of 1993 and as no order, have been passed under Order 22 Rule 4(4) C.P.C. in respect of the deceased first respondent, necessarily trial Court has to pass fresh preliminary decree with an opportunity to the legal representatives of the first defendant to contest the matter. Since the suit is of the year 1993. The learned trial Judge shall take steps to dispose of the very suit as expeditiously possible.