Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 687 (HP)

Raman Wasan v. Jatender Nath Sharma

2012-10-05

R.B.MISRA, V.K.SHARMA

body2012
JUDGMENT : V.K. Sharma, J. Both the above mentioned appeals being OSA Nos. 15 of 2006 and 1 of 2007, arise out of a single judgment dated 03.11.2006, rendered by a learned Single Judge of this court in Civil Suit No. 12 of 1999, Jatender Nath Sharma and another v. High-seas Holding Pvt. Ltd. & others. 2. It shall be pertinent to observe at the very outset that indisputably proforma respondent No. 4, Air Marshal G.B. Singh, in OSA No. 1 of 2007, who was appellant No. 2 in OSA No. 15 of 2006, has died on 26.07,2008. It is also not in dispute that his legal representatives (LRs) have already been brought on record in OSA No. 15 of 2006, vide order dated 01.10.2010, passed by this court in CMP(M) No. 1238 of 2008. 3. On 28.4.2010, the appellant moved CMP(M) No. 1258 of 2011 under Order 22 Rule 4 read with Sections 2(11) and 151 of the Code of Civil Procedure, 1908 (in short CPC) and CMP(M) No. 1259 of 2011 under Section 5 of the Limitation Act, seeking to bring on record LRs of deceased proforma respondent No. 4, Air Marshal G.B. Singh in OSA No. 1 of 2007, by condoning the delay in making the prayer for representation of the LRs on the following grounds set up vide para 3(i) to (iv) of CMP(M) No. 1259 of 2011:- "3. That in the instant case, it would be evident from the following that the delay has been caused due to unavoidable circumstances:- i. That the Appellant first came to know about death of Respondent No. 4 on 15.03.2010 through his counsel. Immediately after the local counsel of the applicant at Shimla intimated that he has come to know that the respondent has expired, the applicant on 28.04.2010 filed an application before this Hon’ble Court to bring on record the legal representatives. That after coming to know the addresses of the legal representatives of Respondent No. 4, Appellant visited the Delhi address of Ms Komal G.B. Singh, one of the legal representatives of Respondent No. 4, on several occasions. However, Appellant could to meet her on any occasion and therefore failed to gather the date of death of Respondent No. 4. That after coming to know the addresses of the legal representatives of Respondent No. 4, Appellant visited the Delhi address of Ms Komal G.B. Singh, one of the legal representatives of Respondent No. 4, on several occasions. However, Appellant could to meet her on any occasion and therefore failed to gather the date of death of Respondent No. 4. That since the other legal representative of Respondent No. 4 live out of the country, it was difficult to know about the exact date of death of deceased Respondent No. 4. That Appellant took step to procure the date of death of Respondent No. 4 as also to procure the details of legal representatives of Respondent No. 4; but initially could get the details of legal representatives only and not the date of death of Respondent No. 4. ii. That after the best efforts the Applicant/Appellant came to know that the actual date of the death of the deceased Respondent is 26.07.2008. The applicant could come to know this date only on 14.11.2010. iii. That after filing the above mentioned Application, Appellants counsel could not remove the objections raised by the Court Registry regarding the date of death of deceased Respondent No. 4. However the other objection raised by the registry was removed by him, which was regarding the application being on white papers and not on judicial papers. Thereafter, the instant case was listed before this court, when Petitioners local counsel discovered that the said application was not listed. Upon enquiry from the registry, petitioners local counsel came to know that the same objections were raised again by the Registry and the same could not be dealt in with due to no information to the local counsel. iv. The local counsel of petitioner removed the said further objections on 31-8-10 and refiled the said Application on 31-8-10 along with the instant Application for seeking condonation of delay in filing the said application." 4. iv. The local counsel of petitioner removed the said further objections on 31-8-10 and refiled the said Application on 31-8-10 along with the instant Application for seeking condonation of delay in filing the said application." 4. Thereafter on 24.2.2011, the appellant moved CMP(M) No. 235 of 2011 under Section 5 of the Limitation Act and CMP No. 236 of 2011 under Order 22 Rule 9 read with Section 151 CPC, seeking to set aside abatement of the appeal (OSA No. 1 of 2007) by condoning the delay in making the prayer for setting aside the abatement, on the following averments set up vide paras 3 to 7 of CMP No. 236 of 2011:- "3. That the party-Respondent No. 4 has died on 26.07.2008 leaving behind two daughters as his legal representatives to his estate. That vide a separate Application under Order 22, Rule 4 r/w Section 2 (11) and Section 151 CPC dated 28.04.2010, the Appellant has already sought to bring on record the legal representatives of the deceased Respondent No. 4. On 10.12.2010, the Appellant has also filed Application before this Hon’ble Court under Section 5 of Limitation Act for seeking delay in filing of the said application for bringing on record the LRs of the deceased Respondent No. 4. 4. That the circumstances of delay occurred in filing of the above two applications are well explained and are under consideration of this Hon’ble Court. 5. That the Appellant is filing the instant application for setting aside the abatement of the appeal against the deceased Respondent No. 4, who is a necessary party to the lis, as explained in the appeal. 6. That the appellant is a bona fide purchaser of the suit property and is in constant possession of the same since more than a decade i.e. since October 1998 and has paid full consideration towards the same during the year 1997 and 1998 to the Respondent No. 3 & 4. The deceased Respondent No. 4 was to execute the Sale Deed in favour of the Respondent during in the year 1999, however the same could not be executed due to the present suit filed by the Respondent Nos. 1 & 2. The deceased Respondent No. 4 was to execute the Sale Deed in favour of the Respondent during in the year 1999, however the same could not be executed due to the present suit filed by the Respondent Nos. 1 & 2. It is noteworthy to mention that the Respondent No. 3 & deceased Respondent No. 4 have also categorically admitted in their Written Statements before the trial Court that the Appellant is a bona fide purchaser for consideration without notice. 7. That the balance of convenience lies in favour of the Appellant and great prejudice would be caused to the Appellant, if abatement of the present Appeal is not set aside by this Hon’ble Court." 5. The prayer on behalf of the appellant for bringing on record LRs of deceased proforma respondent No. 4, Air Marshal G.B. Singh, is opposed on behalf of the co-respondents mainly on the grounds of inordinate delay in filing the applications and self contradictory pleas raised therein. 6. We have heard the learned counsel for the parties and gone through the records. 7. In support of his prayer the appellant has relied upon on the following authorities:- 1. N. Jayaram Reddi and another v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 Supreme Court 1393; 2. Kanhaiyalal v. Rameshwar and others, (1983) 2 Supreme Court Cases 260; and 3. Superintending Engineer and others v. B. Subba Reddy, AIR 1999 Supreme Court 1747. 8. Per contra, respondents No. 1 and 2 have relied upon the following reports:- 1. Badni (Dead) by LRs. and others v. Siri Chand (Dead) by LRs. and others, (1999) 2 Supreme Court Cases 448; and 2. Lanka Venkateswarlu (Dead) by LRs. v. State of Andhra Pradesh and others, (2011) 4 Supreme Court Cases 363. 9. The moot question involved for determination in these applications is essentially whether representation of LRs of deceased appellant No. 2, Air Marshal G.B. Singh, in OSA No. 15 of 2006, who was proforma respondent No. 4 in OSA No. 1 of 2007, would also inure for the purposes of OSA No. 1 of 2007 or not. 10. 9. The moot question involved for determination in these applications is essentially whether representation of LRs of deceased appellant No. 2, Air Marshal G.B. Singh, in OSA No. 15 of 2006, who was proforma respondent No. 4 in OSA No. 1 of 2007, would also inure for the purposes of OSA No. 1 of 2007 or not. 10. Before embarking upon discussion and decision on the aforesaid applications and question, it shall be of benefit to notice the law laid down by the Hon’ble Supreme Court in N. Jayaram Reddi and another (supra) vide paras 41 and 42, which are extracted below, with regard to the question whether substitution of LRs in one cross appeal inures in other cross appeal or the same abates:- "41. Is it possible to ratiocinate these decisions? Apparently the task is difficult. Now, if the object and purpose behind enacting Order 22, Rules 3 and 4 are kept in forefront conclusions Nos. 1 to 4 would more or less fall in line with the object and purpose, namely, no decision can be recorded in a judicial proceeding concerning the interests of a party to a proceeding without giving such party or his legal representatives an opportunity of putting forth its/their case. To translate this principle into action denuding it of its ultra technical or harsh application, the Courts held that if some legal representatives are before the Court, or they are before the Court in another capacity or are brought on record at some stage of the suit, the action will not abate even if there is no strict compliance with the requirements of Rules 3 and 4. The distinction in the process drawn between the substitution of legal representatives in cross-objections and cross-appeal defies ratiocination. Cross-appeal and cross-objections provide two different remedies for the same purpose and that is why under Order 41, Rule 22, cross-objections can be preferred in respect of such points on which that party could have preferred an appeal. If such be the position of cross-objections and cross-appeal a differentiation in the matter of their treatment under Rules 3 and 4 cannot be justified merely on the ground that in case of cross-objections they form part of the same record while cross-appeals are two independent proceedings. 42. If such be the position of cross-objections and cross-appeal a differentiation in the matter of their treatment under Rules 3 and 4 cannot be justified merely on the ground that in case of cross-objections they form part of the same record while cross-appeals are two independent proceedings. 42. Now, if the discernible principle underlying Rules 3 and 4 of 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 is 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. 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. 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-objections. 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 Saralaya's case (AIR 1931 Mad 277). This approach is merely an extension of the principle well recognised by Courts that if legal representatives are before the Court in the given proceeding in one capacity it is immaterial and irrelevant if they are 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 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 22 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." 11. In Kanhaiyalal (supra), the Hon’ble Apex Court has held that an appeal would not abate on failure to implead within time LRs of a proforma respondent against whom no relief is claimed by the appellant, as in the present case. Para 6 of the judgment being relevant is extract below:- "6. Mr. Naunit Lal raised two contentions. But we propose to examine second of the two contentions. The first contention is that the provisions of Order XXII, Rules 3, 4 & 8 of the C.P.C. do not apply to the execution proceedings. The question is not whether the heirs were not impleaded in execution proceedings but whether the appeal has abated on account of the failure of appellant to seek substitution of the deceased respondent No. 2 pending the appeal. We do not propose to examine the first contention. But the second contention which we are inclined to accept is sufficient to dispose of this appeal. Mr. Naunit Lal submitted that the appellant is the heir of the surety, contesting surety's liability and the appellant was not seeking any relief against the original judgment-debtor who was a pro forma respondent. We do not propose to examine the first contention. But the second contention which we are inclined to accept is sufficient to dispose of this appeal. Mr. Naunit Lal submitted that the appellant is the heir of the surety, contesting surety's liability and the appellant was not seeking any relief against the original judgment-debtor who was a pro forma respondent. It was urged that the failure to implead the legal representatives of a pro forma respondent against whom no relief is claimed would not have the effect of abating the appeal preferred by the present appellant. The heir of surety was contesting his liability to satisfy the decretal debt. The appellant claimed no relief against the pro forma judgment debtor. The judgment-debtor is contesting his liability with which we are not concerned. By the death of pro forma respondent judgment debtor, right to sue does not revive against him or his heirs and their presence was unnecessary and the appeal can proceed in their absence. Therefore, the High Court was clearly in error in holding that the appeal would abate on the sole ground that the heirs of the deceased judgment debtor proforma respondent No. 2 were not substituted in time. No substitution was necessary and appeal could have been proceeded within the absence of the deceased judgment-debtor and disposed of on merits." 12. The dictum of law laid down by the Hon’ble Supreme Court in Re: Superintending Engineer and others v. B. Subba Reddy (supra) is that cross objection and appeal lie on the same footing. The Hon’ble Apex Court has further held in Organic Insulation's v. Indian Rayon Corporation Ltd, (2003) 9 Supreme Court Cases 187 that once LRs of deceased plaintiff have been substituted in the suit, it is not necessary for defendant also to take steps to have the deceased plaintiff (defendant in his counter-claim) substituted in the counter-claim and the counter-claim would not abate as no prejudice would be caused to the LRs of deceased who would have full opportunity to present their defence because a suit and counterclaim are to be tried by the same court in the same proceedings. 13. 13. On the strength of the above authoritative pronouncements of law it can be safely held that a connected appeal arising out of a single judgment, which is to be heard and decided by the same court in the same proceedings and in all probability by a common judgment, also lies on the same footing as cross appeal/cross objection/counter claim and once LRs are substituted in the connected appeal, it would also inure in other appeal as well, as in the present case, where deceased Air Marshal G.B. Singh was only a proforma respondent against whom no relief has been claimed by the appellant. 14. Even otherwise, if it is considered for a moment for the sake of argument that even if it is held that substitution of LRs of deceased appellant No. 2, Air Marshal G.B. Singh in OSA No. 15 of 2006 would not inure in OSA No. 1 of 2007, in which he was proforma respondent No. 4 and as such OSA No. 1 of 2007 has abated, it shall be virtually of no consequence, as even in that eventuality he shall be well within his rights to attack the impugned judgment dated 03.11.2006, in his capacity as proforma respondent/original defendant No. 3 in OSA No. 15 of 2006. 15. Though reliance has been placed on behalf of respondents No. 1 and 2 on the law laid down by the Hon’ble Supreme Court in Badni (Dead) by LRs and others (supra), yet the proposition of law laid down by the Hon’ble Apex Court is not applicable to the facts of the present case and is clearly distinguishable, as in the case relied upon it was held that failure to bring on record LRs of the deceased appellant in one of the appeals results in abatement of all the appeals to avoid conflicting decrees on the common issue, which is not situation in the case in hand. 16. 16. Similarly, facts of the case relied upon on behalf of respondents No. 1 and 2 reported as Lanka Venkateswarlu (Dead) by LRs v. State of Andhra Pradesh and others, (supra), are also clearly distinguishable from the facts of the present case for the reason that in the case before the Hon’ble Apex Court the prayer for condonation of inordinate and unexplained delay in substitution of LRs of deceased respondent and setting aside abatement was declined in the peculiar facts and circumstances of the case. However, the question for determination in the present case is entirely different. 17. In view of the above, it is held that representation of LRs of deceased appellant No. 2, Air Marshal G.B. Singh in OSA No. 15 of 2006, who was proforma respondent No. 4 in OSA No. 1 of 2007, will also inure in OSA No. 1 of 2007. Let amended memo of parties in terms of this order be filed within two weeks. The Registry also to reflect this order in the list of parties to the appeal in red ink. 18. All the applications stand disposed of in the above terms.