Mrs. Rammie Tikku (Since Deceased) through L.Rs. and Another vs Smt. Rubie Sulochana Nanda (Since Deceased) through L.Rs. and Another

P.K. Bhasin, J.—By this common order I propose to dispose of applications filed in both the appeals under Order XXII Rule 4 read with Section 151 CPC as also the applications u/s 5 of the Limitation Act for condonation of delay in filing the applications under Order XXII Rule 4 CPC.

The appellant No. 2 Major Ravinder Nath Tikku along with his mother Smt. Rammie Tikku and minor brother Shashinder Nath Tikku had filed a suit for permanent injunction against one Smt. Rubie Sulochana Nanda in 1980. That suit was filed on the allegations that Smt. Rubie Sulochana Nanda had sold to them her half undivided share in property No. 164, Jor Bagh, New Delhi vide sale deed dated 04/09/72. Subsequently an agreement dated 20th October, 1972 was also executed by Mrs. Nanda with the plaintiffs that in case she would decide to sell her remaining half undivided share in the said property the same would also be sold to them. However, in 1980 Smt. Nanda decided to sell her remaining half share in breach of the agreement dated 20th October,1972 to some third party. In order to stop the intended sale/transfer by Smt. Nanda to any third party the suit for permanent injunction was filed. In that suit, Smt. Rubie Sulochana Nanda filed her written statement and claimed, inter-alia, that the agreement relied upon by the plaintiffs was got executed from her by fraud and so was not enforceable. In that suit Smt. Nanda was restrained from selling or disposing of her half undivided share, during the pendency of the suit, to anyone except the plaintiffs. Later on another suit was filed by the Tikkus in 1982 against Smt. Rubie Sulochana Nanda for specific performance of the agreement dated 20th October, 1972 since the said Smt. Nanda had transferred the portion of property No. 164 in her possession in favour of one Avtar Mohan Bahal, respondent No. 2 in R.F.A. No. 600/03, by way of lease dated 4th August,1981. That transfer by way of lease, according to the plaintiffs, in fact amounted to sale of her half undivided share the lease was for nine years and eleven months but was renewable for further two similar terms at the option of the tenant and that too without any increase in rent. In that suit the tenant Mr. Bahal was also impleaded as defendant No. 2. The main prayers in that suit were for directing Mrs. Nanda to sell her remaining half share to the plaintiffs and to direct Mr. Bahal to join in the execution of that sale deed as also for cancellation of the leased deed in favour of Mr. Bahal.

plaintiffs Mrs. Rammie Tikku and Shashinder Tikku died during the pendency of the suits. The defendant Smt. Nanda also died during the pendency of the suits and her seven legal representatives, one of whom was her sister and other six were the children of her pre-deceased sisters, were brought on record and were arrayed as plaintiffs 1(a) to 1(g) but none of them contested the suits after their substitution and were ordered to be proceeded against ex parte. It appears that one Shri N.G. Walia, respondent No. 1(h) in these appeals, was also got impleaded by the surviving plaintiff since he was also claiming himself to be the legal representative of Mrs. Nanda in respect of her half share in property No. 164, Jor Bagh on the basis of her Will and he was arrayed as defendant No. 1(h) in the amended memo of parties. In his written statement he relied upon the Will of Mrs. Nanda.

Finally, both the suits came to be dismissed by the trial Court vide common judgment dated 27th February, 2003. Feeling aggrieved, the sole surviving plaintiff Major Ravinder Nath Tikku only filed two separate appeals but in the memo parties the deceased plaintiff Smt. Rammie Tikku was also mentioned as appellant No. 1 and shown to be represented by her legal representatives. Notices of the two appeals were sent to respondent Nos. 1(a) to (g), who are the legal representatives of the deceased Smt. Rubbie Sulochana Nanda, as also to respondent 1(h) N.G. Walia and respondent No. 2 Avtar Mohan Bahal but the same could be served upon some of them only including Walia and Bahal. The other respondents who were served did not choose to contest the appeals. Regarding unserved respondents, upon enquiries being made by the appellant Maj. Ravinder Nath Tikku found that R-1(a) Smt. Dorothy Ganapathy, who was the sister of the deceased Smt. Nanda, R-1(b) Shri Manohar Singh Brar, who was the son of another sister of deceased Smt. Nanda and R-1(c) Smt. Kuldeep Kaur, who was also the sister of Smt. Nanda, had died during the pendency of the suits. So, in both the appeals applications under Order XXII Rule 4 CPC were filed. Separate applications for condonation of delay in moving the applications under Order XXII Rule 4 CPC were also filed on the ground that death of these persons was not within the knowledge of the plaintiffs. As far as Smt. Dorothy Ganapathy is concerned, no such applications were filed since her heirs were stated to be already on record. Notices of the applications under Order XXII Rule 4 and Section 5 of the Limitation Act were served upon the proposed legal representatives of the deceased respondents No. 1(b) and 1(c) but none entered appearance to contest the applications. However, respondent No. 2 Avtar Mohan Bahal has opposed these four applications.

Mr. V.P. Singh, learned senior counsel for the appellant-applicant had submitted that the plaintiffs in the suits were never aware about the death of the three legal representatives of the original defendant Mrs. Nanda during the pendency of the suits and so applications under Order XXII Rule 4 CPC could not be moved before the trial Court. Mr. Singh further contended that since an appeal is continuation of a suit applications for bringing on record the legal representatives of the deceased legal representatives of the original defendant Smt. Nanda were maintainable in these appeals. It was also contended that considering the fact that none of the three deceased legal representatives of Mrs. Nanda had even entered appearance before the trial Court and not only that, they have not responded even to the notices of the four applications, this Court can even exempt the appellant-plaintiff from bringing on record their legal representatives by invoking Rule 4(4) of Order XXII CPC. However, after making such a submission Mr. Singh had also submitted that he was not really sure whether Rule 4(4) could be invoked in an appeal also or not. In support of the submission that an appeal is continuation of the suit learned senior counsel cited some judgments also of the Supreme Court which are reported as Vasant Ganesh Damle Vs. Shrikant Trimbak Datar and Another, : Rachakonda Narayana Vs. Ponthala Parvathamma and Another, : Ramankutty Vs. Avara, Om Prakash and another Vs. Jai Prakash, . Mr. Singh also placed reliance on another judgment of the Apex Court reported as S. Amarjit Singh Kalra (dead) by Lrs. and Others and Smt. Ram Piari (dead) by L.Rs. and Others Vs. Smt. Pramod Gupta (dead) by Lrs. and Others, wherein it was held that Laws of procedure are meant to aid the object of doing substantial and real justice and also that procedure under Order XXII CPC should be liberally construed so as to serve as handmaid of justice.

On the other hand, the only submission of Mr. Atul Kumar, learned Counsel for respondent Avtar Mohan Bahal, was that the legal representatives of the two deceased legal representatives of the original defendant Smt. Rubie Sulochana Nanda cannot be brought on record now in view of the judgment of the Hon''ble Supreme Court reported as Firdous Omer (D) by LRs. and Others Vs. Bankim Chandra Daw (D) by LRs. and Others, . No submissions were made on behalf of respondent No. 1(h) N.G. Walia who claims to be armed with a Will of late Smt. Nanda in respect of her undivided share in property No. 164, Jor Bagh, over which this fight is going on.

In the present case, there is no dispute about the fact that when the original defendant Mrs. Nanda had died her legal representatives none of whom belonged to either Class I or Class II category of legal heirs as per Hindu Succession Act but even those legal representatives had not shown any interest in the estate of Mrs. Nanda, the original defendant Smt. Ruby Sulochana Nanda, nor they came forward to contest the claim of Mr. Walia that Mrs. Nanda had executed a Will in his favour and that is evident from the fact that all of them had remained ex parte during the trial. So, the estate of late Mrs. Nanda has always remained duly represented after her death in the present litigation despite the fact that no steps were taken by the appellant-plaintiff to bring their legal representatives on record during the pendency of the suit. It is the case of the appellant-plaintiff-applicant that the death of those three legal representatives was not known to the plaintiffs and it was only when notices of the appeal could not be served upon them that enquiries were made and then it was found out that three legal representatives of Mrs. Nanda had already died. The respondents 1(h) and 2 have also not claimed that plaintiffs were aware about the death of the three legal representatives of Mrs. Nanda. Respondents 1(h) and 2 also do not claim that they were having the knowledge of death of the three LRs of Mrs. Nanda during the pendency of the suits and they had passed on that information either to the plaintiffs or to the trial Court.

Now, the question is what orders this Court should pass in view of the death of some of the defendants who had really no interest in this litigation. In all the judgments of the Hon''ble Supreme Court cited by Mr. V.P. Singh, learned senior counsel for the appellant-applicant, it is clearly held that an appeal is a continuation of the suit and the appellate Court has all the powers which vested in the trial Court. The relevant provisions of law dealing with the death of a defendant in a suit may first be noted. Order XXII Rule 4(1) CPC reads under:

4(1). Procedure in case of death of one of several defendants or of sole defendant Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

Rule 4(4) reads as under:

The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

Now, if an appeal is continuation of a suit, this Court can either order substitution of the LRs of the three deceased persons or can even exercise the powers under Order XXII Rule 4(4) CPC under which the Court can exempt the requirement of bringing on record the legal representatives of a deceased defendant who had not bothered to contest the suit so long as he was alive, as was the case of the three deceased legal representatives of Mrs. Nanda in the present case. And in the facts and circumstances of this case the real justice could be done by exercising the powers under Rule 4(4) of Order XXII CPC since none of the three deceased legal representatives of the original defendant Mrs. Nanda had entered appearance after they had been brought on record in the suits. It appears that they had no interest in the property in question since Mrs. Nanda had already parted with possession of her undivided half share in property No. 164, Jor Bagh in favour of respondent No. 2 Avtar Mohan Bahal by creating a lease in his favour which according to the appellant-plaintiff was, in fact, a sale in the guise of lease and also because Mrs. Nanda had executed her Will in favour of Mr. Wahi, as is being claimed by him and not being disputed by anyone of the natural legal heirs of Mrs. Nanda. So, no useful purpose is going to be served by bringing on record the legal heirs of the three deceased defendants 1(a-c).

As far as the judgment of the Hon''ble Supreme Court cited by the learned Counsel for respondent No. 2 is concerned, the same, in my view, is of no help to the respondents. In that case the plaintiff in the suit had died during the pendency of the suit for a declaration that he was a lawful tenant in the premises in question and for restraining the owner thereof from interfering with his possession. The plaintiffs'' legal representatives were brought on record. However, subsequently the suit came to be dismissed in default on one date. An application for restoration of the suit was filed and when that application was still pending decision one of the legal representatives of the original plaintiff also died but his legal representatives were not brought on record and finally the application for restoration of the suit was rejected by the High Court. An appeal was filed in the Hon''ble Supreme Court against that order of the High Court and there an objection was raised on behalf of the respondents that the suit could not be restored since the dismissal of the suit as against the deceased legal representative of the original plaintiff had attained finality and in case the suit were to be restored the same would give rise to inconsistent decrees in the suit inasmuch as there would be one decree for dismissal of the suit against the deceased person and the other one would be for the reopening of the suit qua the surviving plaintiffs. The Hon''ble Supreme Court upheld that objection and dismissed the appeal by observing that the relief of reopening of the suit could not be granted since its dismissal had become final against one of the legal representatives of the original plaintiff. This decision, in my view does not apply to the facts of the present case. Mr. Atul Kumar had submitted that in the present case both the suits had abated qua the deceased three persons and that abatement had attained finality and in case now legal representatives of those persons are brought on record the case will get re-opened, and so the decree which is there already in favour of the surviving defendants would be rendered nugatory. However, in my view this submission is devoid of force. I have already held that estate of late Mrs. Nanda was duly and sufficiently represented in the suits and so there is no question of the suits abating either wholly or eve partially and as far as the judgment of the trial Court is concerned it is under challenge and so it cannot be said that the same has attained finality.

I am, therefore, of the view that substantial and real justice, in the facts and circumstances of the present case, would be done if the appellant-plaintiff is exempted from bringing on record the legal representatives of the deceased defendant Nos. 1(a), (b) and (c), who had been described in the array of parties in these appeals as respondents 1(a), (b) and (c). Such an exemption is accordingly granted. The appellant-plaintiff shall now only file amended memo of parties in both the appeals showing these three respondents as having already died and this Court having exempted the appellant-plaintiff from bringing on record their legal representatives.

As a result of the afore-said exemption having been granted to the appellant-plaintiff, the two applications under Order XXII Rule 4 CPC and the two applications u/s 5 of the Limitation Act have become redundant and stand disposed of accordingly.

The amended memo of parties shall be filed within two weeks and thereafter the matter be listed on 27th March, 2009 for further appropriate directions in the matter.