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Madhya Pradesh High Court · body

2014 DIGILAW 1007 (MP)

Damayanti Devi v. Munna Shah

2014-08-13

S.K.GANGELE, S.K.PALO

body2014
ORDER Gangele, J. -- 1. This review petition has been filed for review of the judgment dated 20.3.2013 passed in Second Appeal No.349/2006. 2. Plaintiffs filed a suit for declaration and permanent injunction to the effect that they are the owners and occupants of the land area 4 bigha and 3 biswa of survey Nos.579, 580, 581, 582, 587, 588, 589, 590, 592 situated at Kent Shivpuri. During the pendency of the suit, plaintiffs No.1 to 4 sold the land by registered sale-deed dated 13.11.1980 in a consideration of Rs.28,000/- in favour of Shivgopal, Laxminarayan and Shanta Kumar. Mehar Ali and Roshan Ali were the real brothers. 3. The respondents denied the pleadings of the plaintiffs. They pleaded that Mehar Ali had no right in the suit property and the defendants came in possession over the suit land. 4. The trial court dismissed the suit on the ground that the original plaintiff did not file an application for bringing LRs on record, hence, the application filed on behalf of the purchaser for substitution of legal representatives was not maintainable. The first appellate Court allowed the appeal and decreed the suit. Cross-objection was also dismissed, thereafter second appeal was filed. 5. Shivgopal was arrayed as respondent No.1 in the second appeal. He was died. Thereafter an application under Order 22 rule 2 CPC was filed by the appellants of second appeal namely Mintu, Shahjad Khan and Mahila Kutto for substitution of legal representatives of respondent No.1 Shivgopal. The appellants pleaded that Shivgopal left following legal representatives : i) Smt. Damyanti Devi wife of late Shivgopal Shivhare aged 60 years. ii) Ram Kumar Shivhare son of late Shri Shivgopal aged 45 years. iii) Ravindra son of late Shivgopal Shivhare aged 36 years. iv) Santosh son of late Shivgopal Shivhare aged 30 years. v) Sarita d/o late Shri Shivgopal Shivhare aged 28 years. All r/o of New Block Hans Building Shivpuri District Shivpuri.” 6. The aforesaid application was filed on 26.2.2007. The appeal was heard on 29.1.2013. It is an admitted fact that legal representatives of the respondent No.1 Shivgopal were not brought on record neither any order was passed on the application for substitution of legal representatives and the Court vide judgment under review set aside the judgment and decree passed by the first appellate Court and also dismissed the suit. 7. It is an admitted fact that legal representatives of the respondent No.1 Shivgopal were not brought on record neither any order was passed on the application for substitution of legal representatives and the Court vide judgment under review set aside the judgment and decree passed by the first appellate Court and also dismissed the suit. 7. It is an admitted fact that the legal representatives (petitioners herein) of respondent No.1 Shivgopal had a right in the suit property. They were not brought on record. 8. Counsel for the petitioners has submitted that the judgment and decree passed by the Court affects the right of the present petitioners. The application for substitution of legal representatives of deceased Shivgopal was on record. It was the duty of the Court to pass the order on the aforesaid application and correct the record, hence, an error apparent on the face of the record has been committed. Consequently, review petition is liable to be allowed. In support of his contention, learned counsel relied on the following judgments : (i) Thomson Press (India) Ltd. v. Nanak Builders and Investors P.Ltd. [ AIR 2013 SC 2389 ]; (ii) Jaladi Suguna v. Satya Sai Central Trust [ (2008)8 SCC 521 ]; (iii) Khemchand Shankar v. Vishnu Hari [ AIR 1983 SC 124 ]; (iv) Amit Kumar Shaw v. Farida Khatoon [ (2005)11 SCC 403 ]; (v) Urmila Patel (Smt.) v. Smt. Laxmibai [ 2001(1) JLJ 202 ]. 9. Learned senior counsel appearing on behalf of the respondents has contended that other persons were already on record. The counsel who had been appearing on behalf of the deceased Shivgopal did not bring the fact before the Court that he was died and an application or substitution of legal representatives was pending. The Court passed the order after hearing the merits of the case, hence, the judgment and decree passed by the Court is in accordance with law. 10. In the present case, it is a fact that deceased Shivgopal, who was respondent No.1 in the second appeal, had substantial right in the property because he had purchased some share in the property. The first appellate Court passed the judgment and decree in his favour. He was died during the pendency of the second appeal. An application for substitution of legal representatives (present petitioners) of deceased respondent No.1 Shivgopal was filed on behalf of the appellants in second appeal. The first appellate Court passed the judgment and decree in his favour. He was died during the pendency of the second appeal. An application for substitution of legal representatives (present petitioners) of deceased respondent No.1 Shivgopal was filed on behalf of the appellants in second appeal. No order was passed on the aforesaid application neither the present petitioners were brought on record nor they were heard by the Court. 11. Order XXII rule 2 of CPC prescribes procedure where one or several plaintiffs-defendants dies and right to sue survives. The provision is as under : “2. Procedure where one of several plaintiffs or defendants dies and right to sue survives. -- Where thee are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.” 12. In accordance with the aforesaid provision, it is the duty of the court to cause an entry to that effect to be made on record and thereafter suit shall proceed at the instance of the surviving plaintiff or plaintiffs. Order 22 rule 6 CPC prescribes that no abatement by reason of death after hearing. In the present case, this was not the situation. The respondent Shivgopal died during pendency of the appeal and the application was already on record. 13. Hon’ble Supreme Court in Jaladi Suguna v. Satya Sai Central Trust, reported in (2008)8 SCC 521 , has considered the principle of bringing legal representatives on record and held as under : “14. When a respondent in an appeal dies, and the right to sue survives, the legal representatives of the deceased respondent have to be brought on record before the Court can proceed further in the appeal. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representative of the deceased respondent-plaintiff on record, will be a nullity. Where the respondent-plaintiff who has succeeded in a suit, dies during the pendency of the appeal, any judgment rendered on hearing the appeal filed by the defendant, without bringing the legal representative of the deceased respondent-plaintiff on record, will be a nullity. In the appeal before the High Court, the first respondent therein (Suguna) was the contesting respondent and the second respondent (the tenant) was only a proforma respondent. When the first respondent in the appeal died, the right to prosecute the appeal survived against her estate. Therefore, it was necessary to bring the legal representative(s) of the deceased Suguna on record to proceed with the appeal. 15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the Court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the Court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the Court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-a-vis other rival claimants to the estate of the deceased. 16. The provisions of rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The Court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the Court. The Code also provided that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the Court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits. Rule 4 read with rule 11 makes it clear that the appeal can be heard only after the legal representatives are brought on record.” 14. Hence, in our opinion, the Court has committed material irregularity in pronouncing the judgment in second appeal without passing any order on the application filed by the appellants of second appeal namely Mintu, Shahjad Khan and Mahila Kutto without passing any order on the application for substitution of legal representatives Shivgopal, because Shivgopal was the contesting respondent. 15. Hon’ble Supreme Court in Union of India v. Sandur Manganese and Iron Ores Ltd., reported in (2013)8 SCC 337 , has formulated the following principles in regard to maintainability of review petition : “12. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute; 12.1 Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him; 12.2. Mistake or error apparent on the face of the record; 12.3 Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki, and approved by this Court in Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, to mean “a reason sufficient on grounds, at least analogous to those specified in the rule.” 16. Mistake or error apparent on the face of the record; 12.3 Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki, and approved by this Court in Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, to mean “a reason sufficient on grounds, at least analogous to those specified in the rule.” 16. In the present case, the Court has committed an error of jurisdiction. It passed a judgment and decree against the persons who were not the party before the Court. The Court did not pass any order on the application in regard to bringing legal representatives of deceased Shivgopal on record. Hence, this is a mistake or error apparent on the face of the record. In this view of the matter, in our opinion, the review petition is maintainable. 17. Consequently, the review petition is allowed. The judgment and decree passed by the Court in Second Appeal No.349/2006. is hereby set aside. Second Appeal No.349/2006 is restored to file and it be heard on merits. Looking to the facts of the case, no order as to costs. .............