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2015 DIGILAW 1430 (HP)

Madan Lal v. Soma Devi

2015-10-08

DHARAM CHAND CHAUDHARY

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Judgment : Dharam Chand Chaudhary, J. (Oral) Heard. 2. A short but interesting question of law involved in this petition for adjudication is as to whether in cross cases non-substitution of legal representatives of a deceased party in one of the appeal or Cross Objections has any adverse effect in the proceedings therein when the LRs of the said party have been substituted in another appeal(s)/Cross-Objections or not. The law on this point is no more res integra as the Apex Court in N. Jayaram Reddi and another V. the Revenue Divisional Officer and land Acquisition Officer, Kurnool, AIR 1979 Supreme Court, 1393 has held as follows:- “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 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. 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 is the same as interdependence of appeal and crossobjections 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-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 Shankaranaina Saralaya’s 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 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 then 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. 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 advance 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 is 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.” 3. Similar is the ratio of the judgment again that of Apex Court in Organic Insulations Vs. Indian Reyon Corporation Limited, (2003) 9 SCC 187 in which the judgment of the Apex Court in N. Jayaram Reddi’s case has also been followed. Similar is the ratio of the judgment again that of Apex Court in Organic Insulations Vs. Indian Reyon Corporation Limited, (2003) 9 SCC 187 in which the judgment of the Apex Court in N. Jayaram Reddi’s case has also been followed. Therefore, the position as emerges from the law laid down in the judgments supra is that the legal representatives who were before the Court throughout during the course of hearing of the appeal as party to the appeal and canvassed their case and had full opportunity to put forth whatever contentions were opened to them in the appeals and also to contest the contentions advance against them by the opposite party, their non-impleadment as legal representatives in the cross appeal is of no consequences nor the cross appeal abates. 4. Now if coming to the present case, defendant No. 1 Shri Gorkh Nath had died during the pendency of the suit in the trial Court. On an application filed under order 22 Rule 4 of the Code of Civil Procedure his legal representatives were ordered to be brought on record in the main suit. Deceased defendant Shri Gorkh Nath had filed counter claims also. His legal representative respondent No. 1 herein filed an application for her substitution as his legal representative in the counter claim. The application, however, was dismissed by the trial Court vide order dated 16.5.2014. That order was taken in appeal to learned Lower Appellate Court which has been decided vide order dated 27.7.2015, (Annexure P-7) under challenge in this petition. Learned Lower Appellate Court has reversed the order passed by the trial Court while placing reliance on the judgments of Apex Court cited supra and has rightly held that in view of substitution of legal representative of deceased Gorkh Nath in the main suit, there was no necessity of impleadment of his legal representative in the counter claim. 5. In view of the legal position discussed hereinabove the petitioner-plaintiff cannot be said to be aggrieved by the order under challenge in this petition in any manner whatsoever. Otherwise also, nothing to the contrary has been brought to the notice of this Court by learned counsel representing the petitioner during the course of arguments. Therefore, the impugned order being legal and valid calls for no interference by this Court. The petition is accordingly dismissed. 6. Pending application(s), if any, stands dismissed.