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2023 DIGILAW 427 (HP)

Jia Lal v. Jia Lal (deceased) through LRs

2023-10-11

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The present appellant was the defendant before the learned Trial Court, respondents no. 1 to 6 were the plaintiffs and the other respondents were the defendants. 2. The plaintiffs had filed the suit seeking a declaration that they be declared owners in possession of the land mentioned in Para 1 of the plaint and defendant no. 1 be restrained from claiming any interest qua the estate of deceased Barain Singh in the suit land. 3. The defendant No.1 filed a written statement asserting that the suit land was earlier owned by Narayan Singh, who had executed a Will on 12.12.1967 in his sound disposing state of mind in favour of defendant no. 1. The Learned Trial Court held that the execution of the Will propounded by the defendant was not proved; hence, the suit of the plaintiff was decreed. 4. The defendant filed an appeal, which was dismissed. 5. Being aggrieved from the judgments and decrees passed by the learned Courts below, the defendant No.1 has filed the present appeal. 6. Kubja-respondent no. 6 (original plaintiff No.6) arrayed before this Court and original plaintiff no. 6, Budhi Ram-respondent no. 8, Budhi Ram-respondent no. 9 and Surat Ram-respondent no. 10 died during the pendency of the suit. The appellant failed to bring their legal representatives on record despite the lapse of the statutory period and the appeal abated qua them. 7. It was submitted by Sh. I.S. Chandel, learned counsel for the appellant/defendant that the appeal will abate qua the share of Kubja and can continue against the rest of the respondents. The abatement is partial and not complete; therefore, he prayed that the matter be listed for a final hearing. 8. Mr. Ramesh Chand Sharma, learned counsel for respondents no. 2 to 5 submitted that the decree in favour of the plaintiffs was joint. Kubja was a successor of the original owner and her estate can be represented by her legal representatives and not by other co-owners. The non-bringing of record the legal representatives will result in the abatement as a whole. Hence, he prayed that the appeal be dismissed as having abated. 9. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully. 10. The non-bringing of record the legal representatives will result in the abatement as a whole. Hence, he prayed that the appeal be dismissed as having abated. 9. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully. 10. In Goli Vijayalakshmi v. Yendru Sathiraju, (2019) 11 SCC 352 : (2019) 3 SCC (Civ) 776: 2019 SCC OnLine SC 605, one of the co-owners had died. It was contended before the Hon'ble Supreme Court of India that the appeal had abated partially. It was laid down that in the case of co-owners, there is a possibility of mutually inconsistent decrees and if the legal representatives are not brought on record, the appeal will abate as a whole. It was observed: “10. Taking note of the pleadings of the parties and the claims set up by the defendants that they are co-owners of the suit schedule properties (each being entitled to an equal and undivided share), having derived their title from one common ancestor and are similarly placed and identically situated. 11. From the factual backdrop of the matter, what has emerged is that the judgment and decree passed by the trial court has become final qua Appellant 2 (Defendant 2) on the appeal stood abated qua him vide order dated 24- 7-2009 [ Goli Kannayya v. Yendra Sathiraju, 2009 SCC OnLine SC 38 ] passed by this Court. 12. The submission of the learned counsel for the respondent-plaintiffs is to permit the remaining appellants to prosecute the civil appeals and, in the event, they were to succeed, there would be two mutually inconsistent/contradictory decrees inasmuch as the suit has already been decreed qua Appellant 2 (Defendant 2) on the one hand and the suit would stand dismissed qua Appellants 1 and 3 (Defendants 1 and 3) on the other and without clear demarcation and delineation of the properties (which has not yet happened), it would be impossible for the respondent-plaintiffs to enforce decree qua Defendant 2 without impinging on the rights of Defendants 1 and 3 (Appellants 1 and 3). 13. 13. To counter the submission, the learned counsel for the appellants submit that Appellants 1 and 3 (Defendants 1 and 3) are the real brothers of Appellant 2 and they have their distinct shares and rights regarding title in the suit properties which they had inter se divided and settled amongst themselves and was the subject-matter of the suit which was decreed by the trial court dated 12-10- 1995. The learned counsel further submits that the judgment of the trial court recognises separate and distinct rights of Appellants 1, 2 and 3 (Defendants 1, 2 and 3) and the High Court while dismissing the appeal filed by the appellants and the respondent-plaintiffs having preferred cross-objections with regard to non- grant of reliefs prayed for declaration of title of Schedule C properties itself makes it evident that the defendants had their own distinct and substantive rights in the Schedule A, B and C properties as claimed in the plaint, especially in view of the fact that both the appellants and the respondents herein having preferred their respective appeals before the High Court and also before this Court and in support of his submission placed reliance on the judgment of this Court in Amarjit Singh Kalra v. Pramod Gupta [Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272] . 14. For the sake of repetition, the learned counsel for the appellants further submits that Appellants 1 and 3 (Defendants 1 and 3) had a distinct and separate right which cannot be said to have extinguished on account of non-substitution of the legal representatives of Appellant 2 and their right to substitution could not be taken away by taking note of technicalities and this Court has ample power under Order 41 Rule 4 of the Code of Civil Procedure (hereinafter being referred to as “CPC”) to do substantial justice. 15. In this factual background, it will be apposite to first take note of the principles laid down in respect of abatement of appeals. Order 22 Rule 4(3) CPC specifies that a suit/appeal shall abate against the deceased defendant where no application is made to bring on record the legal representatives of the deceased defendant within the time stipulated. Further, Order 22 Rule 9 CPC specifies the effect of abatement inasmuch as it is clarified that no fresh suit is maintainable in respect of the same cause of action. 16. Further, Order 22 Rule 9 CPC specifies the effect of abatement inasmuch as it is clarified that no fresh suit is maintainable in respect of the same cause of action. 16. The primary role of the court is to adjudicate the dispute between the parties and to advance substantial justice. In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed within the strict parameters of law. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is by operation of law but once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek for the setting aside of an abatement. 17. The question arises in reference to the effect of abatement qua the appellants (plaintiffs or defendants), as the case may be, where the decree is joint and indivisible, the appeal against the other defendants will be proceeded with and in the event of an appeal to succeed, there will be two mutually inconsistent/contradictory decrees and more particularly when the suit has already been decreed qua one defendant and the suit would stand dismissed qua the other defendants, in such a given situation, tests have been laid down by this Court to determine as to whether or not to proceed with the appeal. 18. This Court while adverting to Order 22 Rule 4 CPC against the other respondent in State of Punjab v. Nathu Ram [State of Punjab v. Nathu Ram, AIR 1962 SC 89 ] observed as under: (AIR pp. 90-91, para 6) “6. The question whether a court can deal with such matters or not will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. 90-91, para 6) “6. The question whether a court can deal with such matters or not will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily, the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.” 19. The exposition of the Constitution Bench in Amarjit Singh Kalra v. Pramod Gupta [Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 ] is as under: (SCC pp. 307-08, para 34) “34. In the light of the above discussion, we hold: (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. (2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceeding as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-à- vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.” 20. It was further considered in Budh Ram v. Bansi [Budh Ram v. Bansi, (2010) 11 SCC 476 : (2010) 4 SCC (Civ) 491] and the principle, therefore, emerges is to test whether the judgment/decree passed in the proceedings vis-à-vis the remaining parties would suffer from the vice of contradictory or inconsistent decrees in as much as the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. 21. Applying the aforesaid principles, the facts of the instant cases on hand clearly manifest that the judgment and decree passed by the trial court became final qua Appellant 2 (Defendant 2) upon abatement of the appeal qua him vide order dated 24-7-2009 [ Goli Kannayya v. Yendra Sathiraju, 2009 SCC OnLine SC 38 ]. If this Court would permit the remaining appellants to prosecute the appeals and, in the event, they were to succeed, undisputedly, there would be mutually inconsistent/contradictory decrees inasmuch as the suit has already been decreed qua Appellant 2 (Defendant 2) on the one hand and the suit would stand dismissed qua Appellants 1 and 3 (Defendants 1 and 3) or decreed against them in reference to Schedule C property and not against Appellant 2 (Defendant 2) due to dint of cross-appeal filed by the plaintiff.” 11. A similar view was taken by this Court in Ganga Ram (deceased) and others versus Battna Ram and others, 1992 (1) Shim. LC 28, wherein it was observed: “It is a settled principle of law that when a co-owner dies, his interest can be represented only by his own legal representatives and not by the other surviving owners. In the case of joint owners, the position is different. In that case, the surviving joint owners can represent the interest of the deceased, as joint owners as effectively as the heirs of the joint owners could. The decisions relied upon on behalf of the respondents are fully applicable to the facts of the present case, The success of appeal is likely to lead to conflicting decisions and the surviving appellants alone could not have brought the action for the relief in question against the respondents.” 12. This position was reiterated in Bala Ram & others versus State of H.P. and others, AIR 1994 HP 5 , wherein it was held:- “12. R. 9 of O. XXII of the Code is a disabling provision and states that when a suit abates or is dismissed as having abated, no fresh suit shall be brought on the same cause of action. R. 9 of O. XXII of the Code is a disabling provision and states that when a suit abates or is dismissed as having abated, no fresh suit shall be brought on the same cause of action. Sub-rule (2) thereof enables the plaintiff or the person claiming to be the legal representative of the deceased, to apply for an order to set aside the abatement or dismissal and empowers the court to set aside the abatement or dismissal, in case it is proved that the plaintiff or the person claiming to be legal representative was prevented by sufficient cause from continuing with the suit. Sub-rule (3) makes the provision of S. 5 of the Limitation Act applicable to an application moved under sub-rule (2). 13. Reading of R. 9 of O. XXII of the Code, makes it clear that before the court exercises its power to set aside the abatement or to condone the delay in making an application for setting aside the abatement, there should be necessary averments made in the application, disclosing sufficient cause. In case on the face of it, no sufficient cause is disclosed in the application, the court cannot exercise its inherent jurisdiction to set aside the abatement. For setting aside the abatement, the existence of a sufficient cause is a condition precedent. When in the application there is no allegation that the plaintiff or the appellant was prevented from moving the application within the prescribed period of limitation, for setting aside the abatement, or for condoning the delay in filing the application beyond the period of limitation, it will not be permissible for the court, in the exercise of inherent jurisdiction, to set aside the abatement. In the instant case, absolutely no case is made out for not making the application within the period of limitation, more particularly, after the knowledge had been acquired on 13th September 1990, which aspect had been considered by the lower appellate court and for that reason, I do not see any ground to interfere with that part of the order by which the court held that the appeal had abated against the deceased-plaintiff (respondent No. 6 in the appeal). The trial of the application for bringing on record the legal representatives is not regulated by the procedure prescribed for the trial of the suit. The trial of the application for bringing on record the legal representatives is not regulated by the procedure prescribed for the trial of the suit. Such like miscellaneous applications, under the Code, are required to be heard and disposed of on the basis of the affidavits. There was no necessity for the lower appellate court to have framed an issue and called upon the parties to lead evidence since there was nothing to be tried on the basis of bare allegations made in the application. It was a simple application that one of the respondents in the appeal had died and in case the court was of the opinion that the application was not within time, in the interests of justice, the delay deserved to be condoned. The court committed no procedural irregularity in disposing of the application, on the basis of the material on record, which was not capable of being disputed, nor it was disputed. Moreover, no prayer was made for leading any evidence or placing more facts on record. 14. The next question to be decided is with regard to the effect of the abatement of the appeal qua the deceased. The decision in Ramagya Prasad Gupta v. Murli Prasad, AIR 1972 SC 1181 noted with approval the three tests applied by the courts in order to determine if the appeal abates in its entirety and held that the tests are not cumulative and even if one of them is satisfied, the court would dismiss the appeal as not properly constituted. The three tests generally applied are (a) where the appeal, if allowed, would lead to the court passing a decree which would be contradictory to the decree which has become final with respect to same subject matter between the appellant and deceased respondent, (b) where the appellant could not have brought an action for the necessary relief against the respondents alone who are still before the court and (c) where the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it cannot be successfully executed. In State of Punjab v. Nathu Ram, AIR 1962 SC 89 , where the land owned by two persons jointly had been acquired under the Punjab Land Acquisition (Defence of India) Rules and against the award of compensation therein, an appeal was preferred by the State and pending the appeal, one of the owners died and his legal representatives were not brought on record, it was held that the entire appeal abated. The test applied was that the appeal of the State if allowed, would lead to the court passing a decree, which would be contradictory to the decree, which had become final with respect to the same subject matter between the appellant and deceased respondent. 15. The aforementioned procedure was not followed by the lower appellate court. It proceeded to apply another test, namely, the plaintiffs having separate shares in the property and that the deceased could have brought an independent action against the State, without impleading the other plaintiffs as party. The mere fact that the claimants had separate shares in the property is not a conclusive factor. Specification of shares or interests of the deceased does not affect the nature of the decree and the capacity of a joint decree to execute the decree in its entirety. The plaintiffs had claimed to be co-owners in the land and not as joint owners. In case the claim had not been made as joint owners, even the test of the surviving respondents, in the appeal effectively representing the estate of the deceased would not be made applicable. 16. A Division Bench of this Court in Shiv Ram v. Bhagat Ram, ILR 1978 HP 158 : ( AIR 1979 HP 12 ) , held that when a co-owner dies, his interest can be represented only by his own legal representatives and not by his co-owners. It is only in the case of joint owners, where the position is different because the surviving joint owners can represent the interest of the deceased joint owners, as effectively as the heirs of the said deceased joint owner can, unless, of course, the peculiar facts of a given case reveal that the deceased joint owner had some adverse claims against the surviving joint owners. 17. 17. In the case in hand, it was a joint decree, which had been passed in favour of the co-owners, holding them to be the owners of the suit property and entitled to compensation for the acquisition of part of the property. The effect of the abatement, in so far as the deceased is concerned, was affirmance of the decree qua him. In case the first test is applied, it would result in conflicting decrees, in the event of the appeal of the State being allowed, with respect to the same subject matter. The nature of the decree is such which the deceased alone could have executed the same.” 13. In the present case, a joint decree was passed in favour of the plaintiffs declaring them to be the co-owners to the extent of the share of Narayan Singh and the mutation No.1106 dated 15.06.1990 and Mutation No.95 dated 12.06.1991 in favour of the defendant were also declared wrong and illegal. 14. The appellant did not bring the legal representatives of plaintiff no. 6 on record, which means that the decree in her favour that she is the successor of Narayan Singh and the mutations based on the Will executed in favour of defendant no. 1 are wrong and has attained finality. If the appeal is continued, the Court cannot pass a contradictory decree that plaintiffs no. 1 to 5 are not the successors and the Will in favour of defendant no. 1 is valid. 15. Since the continuation of the appeal will lead to the passing of the conflicting decrees; therefore, in view of the judgment of the Hon'ble Supreme Court of India, the appeal will abate as a whole and not in part. Hence, the submission that the appeal had abated qua, the share of plaintiff-Kubja is not acceptable. Final Order: 16. Hence, the appeal is dismissed as having abated as a whole. Record of the learned Courts below be returned. Pending miscellaneous applications, if any, shall also stand disposed of.