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2015 DIGILAW 78 (ORI)

Kamal Kishore Bagaria v. Eric Alvaris

2015-02-05

D.DASH

body2015
JUDGMENT This appeal has been filed calling in question the judgment and decree passed by the learned 1st Additional District Judge, Rourkela in RFA No. 49 of 2007 confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Rourkela in C.S. No. 53 of 2002. 2. Heard the earned counsel for the appellant and respondent in the matter of formulation of substantial question of law for admission of the appeal. 3. Learned counsel for the appellant submits that the dismissal of the appeal by the lower appellate Court simply on the basis of the dismissal of the appeal vide RFA No. 50 of 2007 filed against the judgment and decree passed •by the learned Civil Judge (Sr. Division) in C.S. No. 157 of 2002 for abatement is untenable in the eye of law and according to him it is wholly an erroneous approach. Therefore, he urges for admission of this appeal on that substantial question of law. He has placed reliance on the decision of Apex Court in case of N.Jayaram Reddy & another vrs. R.D.O. & another; AIR 1979 SC 1393 and Organic Insulations vrs. Indian Rayam Corpn. Ltd; 2003 (9) SCC 187 . 4. Learned counsel for the respondents submits that for the purpose of admission of this appeal, there surfaces no such substantial question of law and lower appellate Court had no other option but to dismiss the appeal in view of the dismissal of RFA No. 50 of 2007, wherein the jirdgment and decree passed in C.S. No. 157 of 2002 was called in question and as both the suits were disposed of by the trial Court by a common judgment after analogous hearing having framed one set of issues common to both, the findings having been confirmed in that appeal are no more open to challenge in the surviving appeal. So he submits that the above cited decisions have no applicability and he relies upon the decision in case of Badri and others vrs. Sirichand and others; AIR 1999 SC 1077 . 5. So he submits that the above cited decisions have no applicability and he relies upon the decision in case of Badri and others vrs. Sirichand and others; AIR 1999 SC 1077 . 5. In order to appreciate the rival contention and to finding whether there arises any substantial question of law for being formulated for the purpose of admission of the appeal, necessary facts be stated hereunder:- The C.S. No. 53 of 2002 has been filed by the present appellant as the plaintiff against the predecessor of respondent for declaration of relationship of landlord and tenant between the parties that the tenancy is permanent in nature, that the notice under Section 106 of T.P. Act is having no legal sanction etc .. C.S. No. 157 of 2002 has been filed by the predecessor of the respondent as plaintiff for eviction of the appellant / defendant and delivery of vacant possession so far as the suit premises is concerned. It goes un-denied that the issue relating to the existence of landlord and tenant remain the common in both the suits as also the other issues. The suits being analogously heard, one set of issues have been framed and answered. Thus appellant having lost in his suit i.e., T.S. No. 53 of 2002 and also having faced the defeat in C.S. No. 157 of 2002 filed against him had preferred two appeals before the lower appellate Court numbered as RFA No. 49 of 2007 and 50 of 2007. It goes un-denied that the appeal bearing RFA No. 50 of 2007 has in the meantime abated for non-substitution of legal representatives of sole respondent-landlady and as yet the said abatement stands. Thus the findings on the issues have become final in that suit and the decree for eviction of the appellant has reached its finality. So far progress of the other appeal, there remains the likelihood of arrival of conflicting findings and rendering the decree for eviction of the appellant nugatory as if also hearing that appeal which has abated. 6. Now coming to the decision in case of Organic Insulations (supra), relied upon by the appellant’s counsel, the question was as to if after substitution of L.Rs. of deceased plaintiff in suit, there remains the necessity for being so made in the counter claim. 6. Now coming to the decision in case of Organic Insulations (supra), relied upon by the appellant’s counsel, the question was as to if after substitution of L.Rs. of deceased plaintiff in suit, there remains the necessity for being so made in the counter claim. The Hon’ble Apex Court held that it is not so necessary as once substitution is there in suit, the counter claim which is to be tried by the same Court would not abate as the defendant is not required to have the deceased plaintiff substituted in his counter claim as defendants, as both would be tried by the same Court where L.Rs. of deceased party would get full opportunity to represent their :case and can claim no prejudice. This is not the situation in the present case. The other decision in case of N.Jayaram Reddy and another (supra) is in relation to completely separate factual settings that two appeals were filed by the claimants as well as the State being aggrieved by award of referral Court in a land acquisition proceeding and there was thus an appeal and cross-appeal. In the State’s appeal there was no substitution of L.Rs. of one of the deceased claimants and the Court disposed of both the appeals by common judgment. So it was held that there being appeal and cross-appeal, non-substitution of L.Rs. of deceased claimant in State’s appeal would have no impact as both have been disposed of by common judgment after hearing when it can be said that the plea of abatement was willfully abandoned by the claimants. These decisions are distinguishable in the facts of the present case. Here both the appeals were against decrees passed in two suits decided by common judgment answering common issues involved. So, of one appeal being dismissed as abated, the findings have attained finality which are now called in question in the next appeal. The principle decided in case of Badri (supra) rather runs counter to the submission of the learned counsel for the appellant. It has been decided in case of Badri (supra) that decree based on common issue against the appellants in all appeal and failure to bring in L.Rs. of one of the deceased-appellants in one appeal would result in abatement of other appeals. 7. It has been decided in case of Badri (supra) that decree based on common issue against the appellants in all appeal and failure to bring in L.Rs. of one of the deceased-appellants in one appeal would result in abatement of other appeals. 7. In view of above, the judgment and decree in respect of the suit concerning the decree of eviction of the appellant from the suit premises and other reliefs granted have become final. Therefore, the lower appellate Court in view of the said abatement of the appeal attaching finality to the judgment and decree passed by the trial Court is found to have rightly refused to consider the other appeal before him on merit so as to judge the correctness of the findings on the issues which have become final as under no circumstance now those can be set at naught as there would be a conflicting decree which will have the effect of nullifying the other decree. For the aforesaid discussion and reason this Court finds no such substantial question of law to be formulated for admission of this appeal. 8. In the result, the appeal stands dismissed as there involves no such substantial question of law to be answered warranting its admission. No order as to costs. Appeal dismissed.