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Judgment
This Miscellaneous Appeal has been filed by the appellants under Order XLIII Rule 1(t) of the Code of Civil Procedure, 1908 (for brevity, “CPC”), being aggrieved by the judgment dated 26.09.2024 passed by the learned V Additional District Judge, Waidhan, District Singrauli (hereinafter referred to as the “First Appellate Court”) in RCA No.69/2024, whereby the learned First Appellate Court dismissed the appeal preferred by the appellants against the order dated 10.10.2018 passed by the learned V Civil Judge, Class-II, Singrauli (hereinafter referred to as “trial Court”) in Civil Suit No.202-A/2015.
Briefly stated, the facts leading to the present appeal are that appellants No.5 and 6 and one Lalji Shah were co-plaintiffs in Civil Suit No.202-A/2015 instituted against the respondents seeking declaration of title, declaration that the sale deeds dated 10.05.1964 and 29.06.1977 were null and void and permanent injunction.
During pendency of the suit, plaintiff Lalji Shah died on 29.07.2013. Appellants No.1 to 4 claim to be his legal representatives. According to the appellants, an application under Order XXII Rule 3 CPC for bringing the legal representatives on record was prepared and, according to their case, was presented on 29.10.2013. It is their further case that, owing to circumstances relating to the absence of the Presiding Officer/Reader and subsequent handling of the application, the said application did not form part of the record and a signed application was subsequently presented on 19.07.2016 along with an application under Section 151 CPC.
The learned trial Court, by order dated 10.10.2018, rejected the application, holding, inter alia, that the specific provision for bringing the legal representatives of a deceased plaintiff on record is contained in Order XXII Rule 3 CPC and that the application before it could not be entertained in the manner sought by the appellants.
Being aggrieved, the appellants preferred RCA No.69/2024 before the First Appellate Court. The First Appellate Court, by judgment dated 26.09.2024, dismissed the appeal principally on the ground that the order passed by the learned trial Court was neither a decree appealable under Section 96 CPC nor an order appealable under Section 104 read with Order XLIII Rule 1 CPC. Hence, the present appeal.
Learned counsel for the appellants submits that the appellants could not bring the legal representatives of deceased Lalji Shah on record because of inadvertence on the part of the concerned counsel. It is further submitted that the civil suit is still pending and has not abated, as the surviving plaintiffs, namely appellants No.5 and 6, continue to prosecute the suit. It is therefore prayed that the appellants may be permitted to file an appropriate/fresh application under Order XXII Rule 3 CPC for bringing the legal representatives of deceased plaintiff Lalji Shah on record.
Learned counsel appearing for respondents No.1 to 4, while opposing the appeal, submits that Lalji Shah died on 29.07.2013 and no application under Order XXII Rule 3 CPC was filed within the prescribed period. It is further submitted that even after rejection of the application under Section 151 CPC, the appellants preferred a Miscellaneous Appeal instead of adopting the appropriate remedy. According to learned counsel, neither the appeal before the First Appellate Court nor the present appeal is maintainable.
Heard learned counsel for the parties and perused the record.
At the outset, it is necessary to consider the nature and maintainability of the proceedings before the First Appellate Court as well as the present appeal.
The appellants challenged before the First Appellate Court the order dated 10.10.2018 passed by the trial Court on an application invoking Section 151 CPC in relation to the death of one of the co-plaintiffs and the bringing of his legal representatives on record. The Supreme Court in Mangluram Dewangan v. Surendra Singh and others, reported in (2011) 12 SCC 773, while considering an order passed in proceedings under Order XXII Rule 3 CPC, has drawn a distinction between an order rejecting an application for bringing legal representatives on record and an order which determines that the right to sue itself does not survive. The First Appellate Court has reproduced the relevant paragraph 23 from the said judgment, though the case name and citation do not appear to have been mentioned in the judgment. The relevant proposition reproduced therein reads:
“23.As the order dated 31.8.1996 is neither a ‘decree’ appealable under section 96 of the Code nor an order appealable under section 104 and Order 43 Rule 1, the remedy of the applicant under Order 22 Rule 3, is to file a revision. The High Court was therefore, right in its view that the adjudication of the question whether an applicant in an application under Order 22 Rule 3 was a legatee under a valid will executed by the deceased plaintiff in his favour, was not a decree and therefore the remedy of the applicant was to file a revision.”
The First Appellate Court has also reproduced the accompanying distinction that where an order declares that the suit has abated or dismisses the suit because of a finding that the right to sue does not survive on the death of the sole plaintiff, the adjudication may amount to a decree. The distinction is material because the character of the order depends upon the nature of the adjudication made by the Court.
In the present case, however, the order dated 10.10.2018 passed by the learned trial Court was not an adjudication declaring that the right to sue had come to an end because it did not survive upon the death of Lalji Shah. The controversy before the trial Court essentially arose out of the prayer of the appellants to permit them to bring the legal representatives of deceased Lalji Shah on record by invoking Section 151 CPC, in the background of the alleged earlier application under Order XXII Rule 3 CPC. Therefore, the principle laid down in Mangluram Dewangan (supra) has to be applied keeping in view the actual nature of the order passed by the trial Court and not merely the consequence which the appellants seek to attribute to it.
At this stage, another aspect assumes significance. The present appeal has been instituted under Order XLIII Rule 1(t) CPC. Clause (t) of Rule 1 of Order XLIII relates to an order refusing, under Rule 19 of Order XLI, to readmit an appeal dismissed for default or refusing, under Rule 21 of Order XLI, to rehear an appeal. The impugned judgment dated 26.09.2024 is not an order of either of those descriptions.
Consequently, the present Miscellaneous Appeal, as instituted under Order XLIII Rule 1(t) CPC, cannot be maintained merely because the order under challenge happens to be a judgment rendered by the First Appellate Court.
The reference made in the impugned order to the appealability of the trial Court's order under Section 104 read with Order XLIII Rule 1 and the further reference to Mangluram Dewangan (supra) are, however, relevant for examining the nature of the underlying order.
Before reaching a final conclusion on the controversy concerning the legal representatives, it is necessary to examine the scheme of Order XXII CPC.
Order XXII deals with death, marriage and insolvency of parties. Rule 1 lays down a general principle that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 provides the procedure where one of several plaintiffs or defendants dies and the right to sue survives to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. The applicability of Rule 3 depends upon the question whether, on the death of one of the several plaintiffs, the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or on the death of sole plaintiff, the right to sue survives. Similarly, Rule 4 would be applicable where one of the several defendants dies and right to sue does not survive against surviving defendant or defendants alone or sole defendant dies and right to sue survives. The legal representatives of deceased plaintiffs or defendants need to be brought on record.
The scheme envisaged in Order XXII CPC is intended to ensure continuation of the lis to its logical conclusion and not to defeat adjudication merely on account of the death of a party. The Supreme Court in Sardar Amarjit Singh Kalra v. Pramod Gupta and others, reported in (2003) 3 SCC 272, has held:
“26.Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain in tact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice……..”
In the present case, the surviving plaintiffs, namely appellants No.5 and 6, admittedly continue to prosecute the suit. There is no adjudication by the trial Court that, upon the death of Lalji Shah, the entire right to sue came to an end or that the suit itself stood finally terminated because the right to sue did not survive.
The material placed before this Court, therefore, requires consideration in the context of Rule 2 of Order XXII, rather than mechanically treating the matter as one falling under Rule 3.
Rule 2 of Order XXII reads as under:
“2. Procedure where one of several plaintiffs or defendants dies and
right to sue survives.-- Where there 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 the 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.”
From the aforesaid provision, it is clear that where there are several plaintiffs and one of them dies, and the right to sue survives to the surviving plaintiff or plaintiffs alone, the legal representatives of the deceased plaintiff are not required to be substituted under Rule 3. It is also clear from Rule 2 of Order XXII CPC that no period of limitation or any other time limit is prescribed for causing such entry on the record. The Rule does not contemplate any formal application for that purpose; the requirement is only that the Court be satisfied about the death of the plaintiff or defendant, as the case may be, and about the survivability of the right to sue to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, as the case may be. In such a situation, the Court is required to cause an entry to that effect to be made on the record and the suit proceeds at the instance of the surviving plaintiff or plaintiffs.
The Calcutta High Court in Himangshu Bhusan Kar and others v. Monindra Mohan Saha, AIR 1954 Cal 205, while dealing with Rule 2 of Order XXII, observed:
“4.……...The relevant part of that provision provides that "where there are more plaintiffs than one' and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs 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." The language clearly contemplates a case where the right to sue or the cause of action does not die with the deceased plaintiff but survives his death & it survives, -- that is, passes on such death which it outlines, -- to the remaining plaintiff or plaintiffs alone. That language is amply satisfied where the right to sue of the deceased plaintiff passes to the surviving plaintiff or plaintiffs alone; in other words where the entire right to sue (including that of the deceased plaintiff) vests in the surviving plaintiff or plaintiffs alone, whether by inheritance or succession or survivorship. The Rule is sufficiently wide to cover cases of succession) and inheritance. It is not strictly confined only to cases where the remaining plaintiffs become entitled to the deceased plaintiff's interest by survivorship. The word "survive" has not been used in the Rule in that technical sense. ….…”
The Calcutta High Court further held:
“5.It is also clear that if a case comes under Rule 2 of Order 22, there is no scope for the application of Rule 3 of that Order which con-templates cases other than those covered by the preceding Rule and, accordingly, there is no question of abatement when the case falls within the terms of Rule 2 of Order 22.”
Likewise, in Jugalkishore Jodhalal Kalwar v. Wardhasa Padamsa Lad and others, AIR 1955 Nag 166, the Nagpur High Court held:
“10.Where there are more respondents than one and any of them dies and where the right to sue survives against the surviving respondents alone, the Court shall cause an entry to that effect to be made on the record and the appeal shall proceed against the surviving respondents. This is R.2 of O.22 of the CPC. It is applicable where the right to sue is fully represented against the respondents already on record. The word “alone” in this rule is significant. No application is necessary for making the necessary entry. If, however, the right is not fully represented unless some person not already on record is added as a party, R.4 will apply. Mt. Laxmibai V. Amritlal, AIR 1933 Nag 95 (B). In that case it was held that where all the co-parceners are made defendants and one of them dies, his personal heirs or his personal representatives must be brought on record, and that the right to sue the joint family as such is not complete without them. It was however pointed out that each cases would rest on its own facts and the nature of the pleadings in the case.”
The Full Bench of the Patna High Court in Musammat Hifsa Khatoon v. Mohammad Salimar Rahmen, AIR 1959 Pat 254, has held:
“5.Order 22, Rule 2 of the Code of Civil Procedure lays down that where there 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.”
The Full Bench further observed:
“6.…....The object of the rule of substitution is that any order or decree that may be passed in the suit must be passed in presence of the heirs or legal representatives of the deceased after hearing them so as to be binding on them. If, therefore, they are already on the record, the purpose of the rule is served and there is no further necessity to make any application in that regard.”
And further:
“7.The word "alone" used in Rule 2 of Order 22 is very significant. It clearly indicates that if the right to sue survives only to the surviving plaintiff or plaintiffs or only against the surviving defendant or defendants, it is not necessary to make any application for substitution of the surviving plaintiff or plaintiffs of the surviving defendant or defendants, as the court has only to cause an entry to that effect to be made on the record and the suit has to proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. There is nothing in the above rule to require the surviving parties to be on the record in any particular capacity and it is immaterial whether they are on the record in their capacities.”
The Full Bench ultimately held that the case before it was covered by Rule 2 of Order XXII and that the suit did not abate.
The aforesaid authorities make it clear that the first question is not merely whether an application under Rule 3 was filed within ninety days. The anterior question is whether Rule 3 was attracted at all. Where the right to sue survives to the surviving plaintiffs alone, Rule 2 applies and there is no requirement of substitution under Rule 3. This aspect also explains the significance of Mangluram Dewangan (supra). The Supreme Court's observations concerning the remedy against an order under Rule 3 cannot be divorced from the nature of the adjudication actually made. If the Court is dealing with a genuine Rule 3 application and rejects the same, the remedy has to be considered in the light of the principle laid down in that judgment. On the other hand, where the surviving co-plaintiffs are already on record and the matter is governed by Rule 2, the question of insisting upon substitution under Rule 3 stands on a different footing.
In the present case, therefore, the fact that the appellants asserted that an application under Order XXII Rule 3 had been presented on 29.10.2013 does not by itself conclude the controversy. The record also shows that the appellants subsequently approached the trial Court on 19.07.2016 under Section 151 CPC seeking permission to bring the legal representatives of deceased Lalji Shah on record. The trial Court rejected that request by order dated 10.10.2018.
At the same time, the surviving plaintiffs, appellants No.5 and 6, continue to be on record and the suit is stated to be pending. There is no finding in the orders under challenge that the right to sue in respect of the subject matter of the suit did not survive to the surviving plaintiffs.
In view of the aforesaid legal position, the trial Court ought to examine the matter from the perspective of Order XXII Rule 2 CPC, if the conditions of the said Rule are found to exist on the basis of the pleadings and the nature of the rights asserted in the suit. The surviving plaintiffs cannot be non-suited merely by treating the matter as one necessarily governed by Rule 3 without first determining whether the right to sue survived to them.
However, so far as the present Miscellaneous Appeal is concerned, the impugned judgment dated 26.09.2024 is not an order falling within Order XLIII Rule 1(t) CPC. Therefore, the present appeal, in the form in which it has been instituted, is not maintainable.
Accordingly, the present Miscellaneous Appeal is dismissed as not maintainable, with the observation that the dismissal of this appeal shall not preclude the appellants from seeking appropriate consideration of the question of survivability of the right to sue under Order XXII Rule 2 CPC before the learned trial Court, in accordance with law.
The learned trial Court, while dealing with the pending suit, shall consider the applicability of Order XXII Rule 2 CPC in the light of the pleadings and the nature of the rights claimed by the respective plaintiffs and without treating the observations made herein as a final adjudication upon the merits of the title or other substantive rights involved in the suit.
With the aforesaid observations, this Miscellaneous Appeal stands dismissed.