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2017 DIGILAW 2110 (JHR)

Rawel Kaur v. Sardar Manjeet Singh Bagga

2017-12-07

APARESH KUMAR SINGH

body2017
ORDER : 1. The short question which arises for determination in the instant appeal, at this stage, is whether the appeal stands abated in toto on the death of some of the respondents who were non-contesting during the trial of the Suit (filed by the plaintiffs/contesting respondents seeking 1/9th share upon partition of the entire suit property) or whether the prayer of the contesting defendants/appellants herein for exemption of the deceased respondents under Order 22, Rule 4(4) of the Code of Civil Procedure deserves to be allowed. 2. Few bare relevant material facts need to be stated at the outset. Plaintiffs, who were the descendents from the daughter of Sardar Ram Singh, claimed 1/9th share in the suit properties described in the plaint upon partition. Contesting defendants who are the appellants herein and other co-defendants except defendant no. 31 were the sons or descendents of such sons from late Sardar Ram Singh. Defendant No. 31 was the daughter of Sardar Ram Singh but she also did not file a written statement, though she deposed during the trial in favour of the defendants. Contesting defendants/appellants and some other defendants did file written statements. However, it is not in dispute that the present issue deals with cases of such defendants/respondents herein i.e. respondent nos. 6 to 8, 11 to 13, 15, 21 and 27 who had not filed written statements during the trial. Respondent No. 31 had earlier been substituted by order passed on 13.11.1992 which reads as under: "So far respondent no. 31 is concerned, no doubt, she is necessary party to the appeal, but her deposition read in the court shows that she had received Rs. 15,000/- (rupees fifteen thousand) only in lieu of her share in the property and that she had no interest in the property earned by her father. Although, the evidence is sub-judice in this Court, but the fact remains that she had admittedly received the said amount. Having regard to such admission, she cannot be treated to have same interest in the property as her appellant brother has. I am persuaded of this fact for ignoring the delay in filing the substitution petition." 3. Legal heirs of the deceased respondent no. 31 were substituted accordingly as respondent nos. 31 (a) to (g). Though respondent no. 31 (g) has died but rest of the legal heirs of respondent no. 31 are on record. 4. I am persuaded of this fact for ignoring the delay in filing the substitution petition." 3. Legal heirs of the deceased respondent no. 31 were substituted accordingly as respondent nos. 31 (a) to (g). Though respondent no. 31 (g) has died but rest of the legal heirs of respondent no. 31 are on record. 4. The contesting respondents through I.A. No. 3671/2011 reported the death of respondent no. 8 in the year 2005, respondent no. 11 about five years ago and respondent no. 27 as on 31.1.2008. The appellants in their wisdom sought deletion of the names of certain deceased respondents through I.A. No. 2361/2012 which was allowed vide order dated 21.2.2013 however in respect of respondent nos. 5, 6, 7 and 8. The appellants thereafter filed I.A. No. 1237/2013 seeking modification of the order dated 21.2.2013 passed in I.A. No. 2361/2012, as according to them, they had prayed for deletion of all the deceased defendants/ respondents mentioned in para-3 of the said I.A. though the deletion was allowed only in respect of respondent nos. 5 to 8. That I.A. is still pending. The contesting respondent nos. 1, 2 and 3 thereafter filed I.A. Nos. 569/2015, 570/2015 and 571/2015 seeking a declaration that the entire appeal has abated on the death of the respondent nos. 11 and 27, 13 and 31 (g) and 5 to 8 respectively in the three interlocutory applications. The appellants furnished a consolidated reply to the three interlocutory applications contesting the claim of abatement of appeal. These interlocutory applications remained pending. 5. Learned counsel for the appellants, however, on a preceding date i.e. 13.7.2017 made a prayer to move an appropriate application under Order 22 of the Civil Procedure Code. Thereafter, I.A. No. 6133 of 2017 has been preferred under Order 22, Rule 4(4) read with Sections 151, 152 and 153 of the Civil Procedure Code, 1908 seeking exemption from substituting the legal heirs/respondents of un-contesting defendants/respondents who died during pendency of the present appeal. In the instant I.A. they have categorically asserted that these deceased defendants/respondents had not filed any written statements and as such they never chose to contest the suit. They have further reiterated that after the informatory petition filed by the contesting respondents in 2011 being I.A. No. 3671/2011 they made further inquiries and came to know that certain other respondents apart from respondent nos. 8, 11 and 27 have also died. They have further reiterated that after the informatory petition filed by the contesting respondents in 2011 being I.A. No. 3671/2011 they made further inquiries and came to know that certain other respondents apart from respondent nos. 8, 11 and 27 have also died. The dates of their death were however, not known to them. The appellants have also sought modification of the order dated 21.2.2013 to the extent that the names of the defendant nos. 5 to 8 had been deleted on the prayer made in I.A. No. 2361/2012, on the plea that such a recourse was not permissible under the provisions of Civil Procedure Code. Rather the proper course was to seek exemption in respect of the deceased non-contesting defendants/respondents in terms of Order 22, Rule 4(4) of the C.P.C. 6. Learned counsel for the appellants has in support of the aforesaid prayer inter-alia made the following submissions:- (i) The deceased respondents were non-contesting defendants during the trial and as such the appellants are justified in seeking exemption from substituting them through their legal heirs/representatives in terms of Order 22, Rule 4(4) of the CPC. (ii) The deceased respondent except respondent no. 31 were proforma respondents and stand in the same footing as that of the contesting defendants/appellants who are either sons or descendents of sons of late Sardar Ram Singh. As such their interest are duly protected by the present appellants. (iii) These appellants have not claimed any relief as against respondent nos. 4 to 30 who are proforma respondents. Reliance has been placed on the judgment rendered by the Apex Court in the case of Mangal Singh vs. Rattno, (1967) 3 SCR 454 : AIR 1967 SC 1786 and in the case of Kanhaiyalal vs. Rameshwar, (1983) 2 SCC 260 . (iv) Learned counsel for the appellants have specifically made reference to the order dated 24.2.1998 and 2.3.1998 passed in the instant appeal. According to the appellants this Court took note of the appearance of the contesting respondents on notice in the appeal and also the non-appearance of other defendants and observed that their appearance may be dispensed with for the time being as they did not contest. This Court had also observed that in that view of the matter, the appeal can be said to be ready for hearing. This Court had also observed that in that view of the matter, the appeal can be said to be ready for hearing. These observations of this Court have not been challenged by the contesting respondents at any point of time and as such would operate as res-judicata between the parties. The principle of res-judicata applies between two stages of the same proceedings as held by the Hon'ble Supreme Court in the case of Prahlad Singh vs. Sukhdev Singh, (1987) 1 SCC 727 . The submission of the learned counsel for the appellants is to the effect that the presence of the proforma respondents is not necessary for adjudication of the appeal and therefore appellants may be exempted from seeking their substitution. (v) The appellants have also contended that in the event of judgment delivered by this Appellate Court on grant of the exemption as long as the enforcement of the decree passed therein would not be rendered impossible due to any mutual contradiction in terms of self- destructive nature between the decree passed by the learned trial court and this Court, the present course to allow exemption from institution of such non-contesting respondents is proper. As a matter of fact, if the appeal succeeds, the proforma respondents/deceased respondents would be entitled to a larger share as claimed by the present appellants beyond 1/9th share which has been decreed by the learned trial court. The appellate court's decree would not at all nullify or set at naught the relief granted by the trial court. Reliance has been placed on the judgment rendered by the Hon'ble Supreme Court in the case of Sardar Amarjit Singh Kalra vs. Pramod Gupta, (2003) 3 SCC 272 . 7. Learned counsel has referred to the provisions of Sections 151, 152 and 153 of the Code of Civil Procedure in support of the prayer that the error that has crept in the proceeding by virtue of deletion of name of respondent nos. 5 to 8 may be corrected by this Court to make the proceedings regular and proper in the eye of law. 5 to 8 may be corrected by this Court to make the proceedings regular and proper in the eye of law. Learned counsel for the appellants has placed reliance upon the judgment rendered by the Apex Court in the case of Mata Prasad Mathur vs. Jwala Prasad Mathur, (2013) 14 SCC 722 : 2013 (2) JLJR (SC) 22 and submitted that in the background circumstances, this Court should exercise its power to avoid abatement of the appeal by exempting appellants from necessity of substituting legal representatives of the deceased respondents. This would also have an effect in expediting the process of law. 8. Learned senior counsel for the contesting respondents has seriously opposed the prayer of the appellants on the plea of exemption. According to him the entire appeal should be held to have abated on failure of the appellants to seek substitution of the legal heirs of the deceased respondents who are definitely necessary parties in a suit for partition. He has also referred to the stand of the appellants as contained in consolidated reply to I.A. Nos. 569/2011 to 571/2011. According to the contesting respondents the appellants have deliberately kept silent on the date of death of each of the respondents as the consequence in law contemplated under Order 22 is bound to follow i.e. abatement of the appeal itself on failure to seek their substitution/set aside of abatement and condonation of delay in seeking such abatement, if any. Learned counsel for the contesting respondents have relied upon the judgment rendered by the Apex Court in the case of Budh Ram and Others vs. Bansi and Others, JT 2010 (8) SC 115 : 2010 (4) JLJR (SC) 235, para-17, 19 and 20. He has also relied upon the judgment rendered by the Apex Court in the case of Kenchegowda vs. Siddegowda, (1994) 4 SCC 294 and in the case of T. Gnanavel vs. T.S. Kanagaraj and Another, (2009) 14 SCC 294 in support of his submission. Learned counsel further submits that the provisions of Order 22 Rule 4(4) C.P.C. would apply in case of a prayer for exemption made before the trial court and not before the appellate court. Learned counsel further submits that the provisions of Order 22 Rule 4(4) C.P.C. would apply in case of a prayer for exemption made before the trial court and not before the appellate court. The suit is for partition and the failure of the appellants to seek substitution of the deceased respondent within time has the effect of abatement of the entire appeal itself as each of the parties have a legal right to prosecute or defend the proceeding. The Suit being of partition impleadment of all co-sharers was wholly warranted in law. In terms of Order 22, Rule 4(1) the cause of action would survive as against other such defendants who are part of the joint family and had been on record in the trial court. The non-filing of the written statement would not denude them of the right to defend. In such circumstances the prayer of the appellants deserves to be rejected. For the same reason, prayer made for deletion of other deceased respondents and modification of the order dated 21.2.2013 in that manner also deserves to be rejected. 9. Learned counsel for the appellants in reply has referred to the provisions of Order 22, Rule 11 of the C.P.C. in order to submit that the provisions under Order 22 apply at the appellate stage as well. He has again referred to the provisions of Section 153 of the Code for substantiating their prayer for modification of the order dated 21.2.2013. 10. I have considered the submissions of the learned counsel for the parties, gone through the relevant materials as referred above and the provisions of law as well as the judgment cited by the learned counsel for the parties. 11. The factual matrix of the case as are relevant for answering the issue posed at the outset, leave few undisputed positions on facts. The suit was for partition. The contesting defendants/appellants and defendants/respondent nos. 4 to 30 are the sons or descendants of the sons of late Sardar Ram Singh. Apart from the contesting defendant nos. 1 to 3, who are the appellants, the deceased respondent nos. 6 to 8, 11 to 13, 15, 21 and 27 including 31 did not file written statement to contest the suit. Leaving apart respondent no. 4 to 30 are the sons or descendants of the sons of late Sardar Ram Singh. Apart from the contesting defendant nos. 1 to 3, who are the appellants, the deceased respondent nos. 6 to 8, 11 to 13, 15, 21 and 27 including 31 did not file written statement to contest the suit. Leaving apart respondent no. 31, who is the daughter of late Sardar Ram Singh, rest of the deceased respondents stood on the same footing as being sons or descendants of sons of late Sardar Ram Singh like the contesting defendants/present appellants. However, respondent no. 31 though did not file written statement but stood on a different footing as she was the daughter of late Sardar Ram Singh but had deposed in favour of the defendants in the trial. 12. This Court in its order dated 13.11.1992, extracts of which have been quoted above clearly expressed that she is no doubt a necessary party to the appeal. Though her deposition was referred to, but this Court was persuaded by the aforesaid fact to allow her substitution after ignoring the delay in filing the substitution petition. Substituted heirs of respondent no. 31, therefore, were brought on record and except respondent 31 (g), rest of them are on record. The substituted heirs of respondent no. 31 may in that case have the same stand as that of the respondent no. 31 (g) in effect to the claim of share of the property. However, rest of the respondent nos. 6 to 8, 11 to 13, 15, 21 and, 27 did not contest the suit by filing any written statement. 13. The Apex Court in the case of Mata Prasad Mathur (supra) had the occasion to specifically deal with the amendment brought under Order 22, Rule 4(4) after the 54th Law Commission Report of 1973, as they are in the present form. The Apex Court dealt with history of the amendment of Order 22 Rule 4 and noticed that despite the Law Commission taking different view in relation to the incorporation of the proposed amendment, in spite of the similar local amendments made by the different High Courts of Calcutta, Madras, Orissa etc. the Legislature considered the recommendation of the Joint Committee on the subject and inserted the instant provisions of Order 22, Rule 4(4) which has now come to occupy its place in the Civil Procedure Code. the Legislature considered the recommendation of the Joint Committee on the subject and inserted the instant provisions of Order 22, Rule 4(4) which has now come to occupy its place in the Civil Procedure Code. The purpose behind incorporating of such a provisions have been also examined by the Apex Court. It has been specifically observed that the Legislature incorporated the provisions of Order 22 Rule 4(4) with a specific view to expedite the process of substitution of the legal representatives of non-contesting defendants. In the absence of any compelling reason to the contrary the courts below would and indeed ought to have exercised the power vested to them to avoid abatement of the suit by exempting the plaintiff from the necessity of substituting the legal representative of the deceased defendant, Virendra Kumar. The instant Civil Appeal also arose from a suit filed by the respondents/plaintiffs seeking a decree for declaration, partition and injunction against the appellants. The Apex Court was also of the view that the view taken by the first appellate court and the High Court that, failure to bring the legal representatives of the deceased did not result in abatement of the suit could be more appropriately sustained on the strength of the power of exemption that was abundantly available to the courts below under Order 22, Rule 4(4) of Code of Civil Procedure. These observations made by the Apex Court therefore also repel the contention of the contesting respondents that such a power could be exercised only at the stage of the trial court and not at the appellate level or at the High Court level. Order 22, Rule 11 of Code of Civil Procedure also lends support to the view that the powers of exemption under Order 22, Rule 4(4) CPC can be exercised at the appellate stage as well. The entire purpose of incorporating the instant provision is to expedite the process of law, which in the present case is writ large from the face of record. The present matter arises out of a partition suit nos. 27 of 1978/18 of 1986. The entire purpose of incorporating the instant provision is to expedite the process of law, which in the present case is writ large from the face of record. The present matter arises out of a partition suit nos. 27 of 1978/18 of 1986. The present appeal is pending since 1986 and though it has been admitted for hearing long back but is engrossed in the interlocutory stage of substitution of the legal heirs of deceased respondent or their exemption or whether the appeal itself should be held to have abated on failure of the appellants to carry out the substitution within time. As has been noted above, the deceased respondent except respondent no. 31 (g) were non-contesting respondents and are stated to be on the same footing as that of the contesting defendants i.e. appellants. On exemption being granted from their substitution, the judgment pronounced in such case shall have the same force and effect as it has been pronounced before the death took place. 14. The Apex Court in the case of Budh Ram and Others (supra) relied upon by the contesting respondents have also dealt with the precedence on the point including that of Sardar Amarjit Singh Kalra (supra) and observed at para 19 that the law on the issue stands crystallized as to whether non-substitution of LRs of the defendants/respondents has abated the appeal in toto or only qua the deceased defendants/respondents and as such it would depend on the facts and circumstance of an individual case. Where each one of the parties has an independent and distinct right of his own not inter dependant upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased appellant respondent. However, in case there is possibility that court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit contradictory decrees on the same subject matter in the same suit. 15. As appears from the facts referred to in the said case, the appellants had contested the suit instituted by the plaintiffs-respondents for a declaration that they were co-owners and co-sharers in joint possession of certain pieces of land and proforma defendant no. 15. As appears from the facts referred to in the said case, the appellants had contested the suit instituted by the plaintiffs-respondents for a declaration that they were co-owners and co-sharers in joint possession of certain pieces of land and proforma defendant no. 6 was co-owner and co-sharer in joint possession to the extent of certain pieces of land being the suit property. The proforma defendant no. 6 though did not contest the suit neither appeared but the trial court decreed the suit in favour of the plaintiffs and the defendant no. 6. In the appeal preferred thereafter the defendant no. 6 impleaded, as respondent no. 4 died on 19.11.2000. However, the application for her substitution made before the first appellate court was not accompanied by any application for condonation of inordinate delay nor the appellants could furnish any explanation. In those circumstances the appellate court found that there was no sufficient cause for the appellants to file an application after such an inordinate delay and since there was a decree of joint possession and co-ownership of the respondents/plaintiffs with the said defendant no. 6, the appeal stood abated in toto. The High Court had upheld the order passed by the first appellate court, thereafter, the matter was taken to the Apex Court. In the facts of the present case as made out by the parties, the present appellants being the contesting defendants stand on the same footing as the proforma respondents being the sons or descendants of late Sardar Ram Singh some of whom have died during pendency of the appeal. These deceased respondents had also not filed any written statement on their part to contest the Suit. In those circumstances this Court is of the considered opinion that the prayer of the appellants for exemption from substitution of these respondents can be allowed with the object to expedite the process of law. This Court is, therefore, inclined to adopt the approach commended by the Apex Court in the case of Mata Prasad Mathur (supra) in the matter of grant of exemption to the appellants from substituting the deceased respondents except respondent no. 31 (g). 16. In the present case, the respondent nos. 6 to 8, 11 to 13, 15, 21 and 27 undisputedly had not contested the suit. 31 (g). 16. In the present case, the respondent nos. 6 to 8, 11 to 13, 15, 21 and 27 undisputedly had not contested the suit. Therefore, in the totality of the facts and circumstances, this Court is of the view that though the prayer for exemption has been made at this stage after a misconceived application for deletion of names of the deceased respondents earlier in 2012, but the same deserves to be allowed vis-a-vis the respondent nos. 6 to 8, 11 to 13, 15, 21 and 27. However, in view of the discussions made hereinabove and specific observations made in the order dated 13.11.1992 where respondent no. 31 was treated to be a necessary party, the prayer for exemption in respect of the deceased respondent no. 31 (g) does not deserve to be allowed. 17. The appellants in the background facts and circumstances seem to have taken steps after the informatory petition being I.A. No. 3671 of 2011 tiled by the contesting respondent reporting the death of respondent nos. 8, 11 and 27 through I.A. No. 2361 of 2012. However, they had sought the deletion of the deceased respondent in a misconceived manner. The provisions of Civil Procedure Code specifically under Order 22 conceives of one or the other eventuality on the death of the parties/defendants i.e. either substitution of the deceased respondents or abatement of the suit or the appeal vis-a-vis such deceased respondents or grant of exemption from substitution of such deceased respondents but not the deletion of the respondents in such a fashion. In those circumstances, the appellants seem to have realized their mistake belatedly and made a prayer for modification of the order dated 21.2.2013 by which the names of respondent nos. 5 to 8 were deleted at the risk of the appellants. 18. This court therefore in exercise of the powers conferred under the Code including that under Section 153 of the Code of Civil Procedure and in view of the exemption granted from substitution of the legal heirs of these respondents, is of the view that the order dated 21.2.2013 deserves to be modified to that extent. However, it cannot be without commensurate cost on the appellants for moving such a misconceived application. Accordingly, the prayer for modification is allowed subject to payment of cost of Rs. 5,000/- to be paid to the contesting respondents herein. However, it cannot be without commensurate cost on the appellants for moving such a misconceived application. Accordingly, the prayer for modification is allowed subject to payment of cost of Rs. 5,000/- to be paid to the contesting respondents herein. Consequently, prayer made in I.A. No. 6133 of 2017 is partly allowed in the aforesaid manner. I.A. No. 1237 of 2013 seeking modification of the order dated 21.2.2013 stands rejected on the aforesaid reasoning as deletion of such deceased respondents cannot be allowed. Rather exemption from their substitution has been allowed today by the instant order. Prayer for abatement of the appeal in totality as made by the contesting respondents through I.A. Nos. 569, 570, 571 of 2015 therefore deserves to be rejected. They are accordingly rejected.