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Judgment
N.K. Jain, J.
This first appeal is directed against the judgment and decree of learned Dist. Judge, Merta dt. 2.6.90 in civil original suit No. 18/87.
The brief facts that give rise to this appeal as alleged by the appellants are that with regard to mine No. 36 Chalk Dungari in town Makarana measuring 230 X 70 ft. of which a "Patta" was granted to the plaintiff Noor Mohammed by erstwhile Jodhpur State on 12.9.1938. It was alleged that rest of the palintiffs Nizamuddin and Bilaludin had also ownership right over the said mine and were in possession through the "Patta" which was executed in the name of the plaintiff Noor Mohammed. It was also alleged that half of the portion of mine in the north side measuring 115 x 70ft. fell in share of Gulam Mustafa S/o Chotu in partition marked as " A B C D" in the map and the other portion marked as "A B E F" in the map which was in their possession. It was also alleged that the plaintiff No. 1 Noor Mohammed took adjoining mine No. 36 A situated in the west side of the mine No. 36 vide lease deed dt. 31.3.78 measuring 230 x 60 ft. on yearly basis. The Plaintiff Noor Mohammed agreed to sale l/4th of the mine No. 36 measuring 57 x 70ft. in favour of late Usman S/o Gulam Rasool Radar with consideration of Rs. 15,000/- on 15.1.66 and also executed a registered sale deed in his favour. When Usman came to know of the fact that he will not get any legal right over the mine sold by the Plaintiff Noor Mohammed, he refused to pay the amount, so also to take "Patta" and the possession remained With the palintiff. It was alleged that "Benama" dt. 15.1.66 was never acted upon and thereby either Usman or his legal representatives defendants could not get any right, title and interest so also they could not get possession, but as late Usman was a real nephew of Noor Mohammed, the alleged "Benama" remained with him and it was not cancelled as no dispute arose during the lifetime of Usman. A dispute arose on 23.4.77 after two and a half years of the death of Usman, when L Rs. of Usman restrained the Plaintiff from excavating mines No. 36 and 36A and tried to create breach of peace, thereupon the Plaintiff Noor Mohammed and his son Mohammed Ali filed a complaint in the court of City Magistrate, Parbatsar u/s 145 Cr.P.C. It was alleged that the Tehsildar attached both the mines and the City Magistrate without hearing the parties and without recording any evidence declared possession of the defendants on 23.4.77, against which a revision was filed. It was alleged that as the plaintiffs No. 2 and 3 were also in possession and the defendant in the garb of order of S.D.Order wanted to disturb them, the palintiffs No. 2 and 3 also filed a complaint u/s 145 Cr.P.C. in the court of City Magistrate Parbatsar on 24.5.77 whereupon oh the same day the southern part of mine measuring 115 x 70 ft. was attached and a receiver was appointed, which is still pending. The plaintiff Noor Mohd., Nizamuddin and Bilaludin filed this suit against Gulam Rasool, the defendant No. 1 and 2 to 12 LRs. of Usman, for declaration on 20.7.77 that mine No. 36 of "Morusi Bapi" belongs to the plaintiffs and it is in their possession and mine No. 36A is also in their possession as a lease has been executed in their favour and the defendants No. 1 to 12 have no right over them and they be restrained. It was also prayed that possession of the mines be delivered back to the plaintiffs.
The defendants resisted the suit and the defendants No. 2, 3, 4 and 6 filed written statement denying all the allegations of the plaint. It was stated that both the mines; mine No. 36 measuring 230 x 70 ft. and 36 A measuring 230 x 60ft. are adjacent i.e. in total both the mines measure 230 x 130 ft. It was also stated that half of the northern portion of the mines measuring 114 x 130 ft. fell in the share of Gulam Mustaffa s/o Chhotu in partition shown as "A B C D", in the map and the southern part fell in the share of plaintiffs No. 1 to 3. Partition has already taken place in between the plaintiffs and defendants and they are in possession of their respective portions. The defendants also stated that all the plaintiffs have sold their respective portion to the father of defendant No. 3 to 12 Usman on different dates, who remained in peaceful possession of the mines and developed two cranes and also raised "Pucca" construction. It was further alleged that on 9.11.61 mine No. 36A was sold by the plaintiff for Rs. 2,000/-. It was further stated that as Gulam Mustaffa was not made a party and the suit be dismissed.
On the pleadings of the parties, the learned trial court framed as many as 15 issues on 6.1.81. The plaintiffs in support of their case examined six witnesses and produced four documents. The defendants in support of their case examined 11 witnesses and produced some documents.
The learned trial court after hearing the parties and considering material on record dismissed the suit. Hence, this appeal filed by Noor Mohammed, five L.Rs. of plaintiff No. 2 and six L. Rs. of plaintiff No. 3 against the L.Rs. of Ciulam Rasool only.
This appeal is pending since 7.6.1990. The same was admitted on 5.8.91 with a direction that the appeal will be heard on 16.9.91.
Mr. Jain, learned Counsel for the respondent moved an application for early hearing on 30.11.91 and also raised some preliminary objections stating that the appeal deserves to be dismissed as abated. He has submitted that appeal is not filed against L.Rs. of deceased Usman though shown as defendants No. 1/7 to 1/17 in suit but only against L.Rs. of Gulam Rasool. He has also submitted that the defendant No. 1/4 Mst. Bibi Begum d/o Haji Gulam Rasool died on 24.12.89 leaving behind her husband, four sons and one daughter, defendant ho. 1/9 Noor Hassan s/o late Usman died on 22.6.88 leaving behind his widow, three sons and fire daughters and the plaintiff No. 2/6 Mst. Zamila d/o Nizamuddin whose name appeared in the impugned judgment and decree dt. 2.6.90 but died on 20.10.90 as she left behind her husband, one son and four daughters and none of their legal representatives were brought, on record and on this count also this appeal abated and the appeal is incompetent. It was next stated that the plaintiffs were fully aware of the death of Noor Hassan as the plaintiffs themselves moved an application for impleading his eight L.Rs. in another S.B.C. Misc. Appeal No. 41/80 on 19.9.88. Thus, the appeal is abated.
In reply to the aforesaid application, the appellants submitted that the deceased plaintiff and defendants No. 1/4 and 1/9 died during the pendency of the suit and no decree can be passed in their favour and so also the plaintiff No. 2/6 Mst. Zamila died during pendency of the suit, has been represented by her mother Nathi Plaintiff No. 2/2, so the question of abatement does not arise. It was also staled that in view of Order 22, Rule 10A CPC it was the duty of the respondent to communicate to the court regarding the fact of death of deceased defendants No. 1/4 and 1/9 but has not complied with that, as such the appeal cannot be abated.
In rejoinder the learned Counsel for the appellant has submitted that the appellant has not controverted para 2 of the application filed by the respondent regarding death of defendants No. 1/4 and 1/9 on 24.12.89 and 22.6.88 respectively. It was further stated that inspite of heir of these deceased-respondcnts were disclosed in the application the appellant did not make them party to this appeal, As regards the duty of the respondent to communicate to the court under Order 22 Rule 10A CPC is concerned, it was stated that the provisions of Order 22 Rule 10A CPC are procedural one and not mandatory and further appellants were themselves aware of the fact of death of deceased-defendants and brought L. Rs. of Noor Hassan in another miscellaneous appeal, thus, the Order 22 Rule 10 A CPC has no application.
Mr. Bhandari, submits that a contempt petition is pending as the respondents have disobeyed and violated the undertaking given by their counsel and contempt proceeding has been initiated against the respondents viz. Dr. Sagir Ahmed and Mohd. Iqbal s/o Usman on 3.2.92, and till the decision of contempt petition, the case should not be heard. He has placed reliance on Amrik Singh Vs. State (Delhi Admn.),
In Amrik Singh v. State (supra) since the contemner was punished for six months S.I. and it was held that his transfer application be taken up after purge of contempt but this is not the case in hand. In the instant case by mere issuance of notice, it does not mean that the respondents have been convicted, so the aforesaid case will not help the appellant for not hearing the case.
As agreed by the learned Counsel for the parties that without going into the merits of the case, I proceed to hear the appeal only on preliminary objections.
Both the counsel for the parties have reiterated their submissions made in their application, reply and rejoinder. Mr. Jain has placed reliance on The State of Punjab Vs. Nathu Ram, , Bhanwarlal Vs. Bhulibai and Others, Sukh Ram Singh v. Ram Dayal AIR 1973 SC 24, Dwarka Prasad Singh and Others Vs. Harikant Prasad Singh and Others, , Madan Naik (Dead) by Legal Representatives and Others Vs. Hansubala Devi and Others, , Indian Cable Company Ltd., Golmuri Vs. State of Bihar and Another, , Hedair v. Jagla AIR 1985 H.P. 30 and Lala Vs. Lal Khan and Others,
On the other hand Mr. Parekh has placed reliance on Fakira and Another Vs. Board of Revenue for Rajasthan at Ajmer and Others, Smt. Pemi Bai v. Shanti 1981 RLW 125 , Girdhari Lal and Others Vs. Laxminarain, and Shri Bhagwan and Ors. v. Prakash Chand and Anr. 1992 (l) WLN 40.
Though the points raised by the parties are settled but to appreciate the arguments advanced by the parties, relevant provision of law and case law are discussed as follows: as each case depends on its own facts:
Under Order 22 Rule 4 C.P.C. procedure has been provided for bringing legal representatives of deceased defendant or defendants on record. Under Order 22 Rule 4(1) C.P.C. it has been provided that where the defendant or defendants dies or die and the right to sue does not survive, then 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. Sub-rule (3) of Order 22 Rule 4 provides the time limit (which is 90 days as provided under Article 120 of the Limitation Act) and if within the time limited no application is made under Sub-rule (1) of Order 22 Rule 4, the suit shall abate as against the deceased defendant. Sub-rule (4) of Order 22 Rule 4 C.P.C. provides that the court can exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file the written statement or has filed written statement but afterwards did not take part in the proceedings of the suit, then court may pronounce the judgment against such defendant inspite of his death, it shall have the same force and effect as if it has been pronounced before the death or where the defendant is alive Order 22 Rule 4(5)(b) C.P.C. provides that where as application under Order 22 Rule 4 C.P.C. is filed after the period of limitation then it must be filed alongwith an application u/s 5 of the Limitation Act and must show "sufficient cause" for delay in making such an application. In the present case no such application has been filed by the appellant under Order 22 Rule 4 C.P.C. alongwith an application of Section 5 of the Limitation Act.
Now, the first question arises for consideration is whether the appeal abates as a whole or only to the extent of the decease 1 defendants?''
The basic authority on this point in which various aspects have been considered and held under what circumstances the appeal or suit abates as a whole, is State of Punjab v. Nathuram AIR 1962 SC (sic) where in it has been held as under:
(a) that the suit or appeal where it is imperfectly constituted for want of necessary party or
(b) where the plaintiff or appellant could have brought the action against the remaining defendants or respondents alone or
(c) Where the decree if given in the matter, cannot be effectively executed by the reason of the outstanding right of the legal representatives of the deceased or
(d) Whether there is a possibility of two inconsistent decrees in the suit or appeal. Thus, if any one of the condition is present in the suit or appeal as stated above, then the suit or appeal will be abated as a whole and not to the extent of the deceased defendant or respondents only.
In Bhanwarlal Vs. Bhulibai and Others, this Court while considering the effect of joint decree observed that, where the appeal against the joint decree abates in respect of one of respondents due to non-substitution of his legal representatives, the appeal abates as a whole, because the right to appeal did not survive against the surviving respondents alone because of the jointness of the decree in favour of present and deceased respondents.
In Sukh Ram Singh v. Ram Dayal Singh AIR 1973 SC 24 their lordships of the Supreme Court has observed that where a joint claim against several defendants is made in a suit by the plaintiff, some of the defendants die and no separate claim is made against any of the defendants in appeal, the failure of the plaintiff to bring on record their legal representatives results in abatement of appeal in toto.
In Dwarkaprasad v. Harikant and Ors. AIR 1973 SC 685 their lordships in a suit for specific performance of contract against a purchaser with notice of prior agreement of sale, the question was whether the vendor is a necessary party when during the pendency of the appeal the vendor dies and his legal representatives not brought on record. It has been held that abatement against vendor is fatal to the whole appeal as either inconsistent or contradictory decrees will have lo be passed or proper relief could not have been granted in the absence of his legal representatives. The whole appeal becomes incompetent.
In Madan Naik (Dead) by Legal Representatives and Others Vs. Hansubala Devi and Others, , in abatement of an appeal for want of substitution does not imply adjudication on merits and specific-provision has been made in Order 22 Rule 9(1) etc. that no fresh suit could be brought on the same cause of action. Thus, where an appeal abates, there is no decree. Abatement is automatical.
In Smt. Manni Devi Vs. Ramayan Singh, there was a dispute under the Specific Relief Act, 1963, as the vendor sold the disputed property lo subsequent purchaser and a suit for specific performance against vendor and subsequent purchaser was filed. Vendor died during the pendency and his legal representatives were not brought on record. It has been held that the suit cannot proceed against subsequent purchaser alone because vendor was a necessary party to the suit. It has been further held that the suit as a whole is abated.
In Hedair v. Jagta AIR 1985 H.P. 30 a suit for possession of land was filed against some persons. That suit was decreed against all for handing over possession. An appeal was filed against decree-holder by all. One of the appellant died during the pendency of appeal and his legal representatives were not brought on record within limitation. It was held that the appeal abated in its entirety, placing reliance on AIR 1966 SC 1426 and The State of Punjab Vs. Nathu Ram,
In Lala Vs. Lal Khan and Others, the facts of the case were that three persons Ali Mohammed, Lal Khan and Gulam Mohammed filed a suit against Lalu for recovery of rent and possession of "Bari", The trial court decreed the suit. An appeal was filed by Lalu. During the pendency of first appeal, plaintiff-respondent No. 2 Ali Mohammed died and his legal representatives were brought on record. The first appellate Court allowed the appeal partly. But due to oversight or inadvantance the name of deceased Ali Mohammed appeared in joint decree and on that basis second appeal was filed before this Court. The second appeal was filed against a dead person without bringing his legal representatives on record within a period of limitation. It was held that the doctrine of vagilantibosel, non-dormentas jura subbenient" is attracted to the present case and helps to those who are vigilant and not to those who sleep. In other words, the law comes to rescue to such persons, who are themselves vigilant about their rights. The appeal was held to be incompetent.
On the other hand, learned Counsellor the appellant has relied on Fakira and Another Vs. Board of Revenue for Rajasthan at Ajmer and Others, That was a writ petition under Article 226 of the Constitution of India against the judgment of Board of Revenue whereby, it was held that appeal abated on account of non-substitution of legal representatives of one of the appellants. A suit was filed for ejectment against Faqira, Aladdin and Ladu from the disputed land. Aladdin died during the pendency of the appeal and his name was struck off from the array of the appellant. In appeal an objection was raised that appeal is incompetent for want of necessary party i.e. legal representatives of Aladdin were not brought on record. The Board of Revenue held as aforesaid though Ladu a son of Aladdin was already on record on the ground that other heirs of Aladdin were not on record. Faqira and Ladu came to this Court in writ petition and this Court held that there is sufficient representation of deceased Aladdin as one of his son was already on record and the writ petition was allowed.
In Girdharilal v. Laxmi Narayan AIR 1980 Raj. 15 the point before the court was that in a suit filed by the plaintiff against same defendants, if some of the defendants died and their L.Rs. not brought on record and deceased defendants did not file even written statement and did not contest the suit then an application was filed by the Plaintiff in the suit that he may be exempted to bring L.Rs. of the deceased defendants on record. This Court has while maintaining the order of the trial court exempting plaintiff to bring L.Rs of deceased defendants on record held that the question of first moving application for setting aside abatement does not arise.
In Mst. Pemi Bai v. Mst. Sankali Bai 1981 RLW 125 there was only one legal representative of deceased on record who was also in a different capacity. This Court held that appeal did not abate and directed to bring other legal representative on record so as to complete array of parties, as no allegation Was made either suggesting that the appellant had not made diligent and bonafide enquiries regarding who the legal representatives of deceased Smt. Phoolibai (respondent No. 1/6) were or that they had any motive fraudulent or otherwise in not adding Smt. Lehribai as legal representative.
In Shri Bhagwan and Others Vs. Prakash Chand and Another, one Radha Kishan died and a preliminary objection was raised for abatement of appeal. This Court has held that the exemption of impleading the legal representative of the deceased Radha Kishan can be granted in the present case as he did not contest the suit, nor appeared in the witness box nor filed written statement and further Prakash Chand as the sols representative of Radha Kishan was already on record though in a different capacity, therefore, the estate of Radha Kishan is sufficiently represented by Prakash Chand, and this Court negatived the preliminary objection.
The legal position as discussed above and in the light of the aforesaid decisions is that if legal representatives are necessary party or in their absence no effective decree can be passed or in their absence any decree is passed that cannot be executed effectively or there is possibility of two inconsistent decrees then the whole appeal abates and the appeal will be held to be incompetent. Similarly no decree can be passed against a dead person as it will be a nullity and where there is a possibility of two inconsistent decrees in the suit the appeal will be abated as a whole. Further where the party concerned did not contest the suit and also not filed written statement, the court can exempt bringing of L.Rs. of the deceased on an application or even on an oral request provided the L.Rs. are on record may be in a different capacity.
It is on record that out of three plaintiffs, plaintiff No. 2 Nizamuddin died on 11.2.80 and his six legal representatives were substituted. Plaintiff No. 3 Bilaludin died on 22.5.88 and his six L.Rs. were also substituted. Defendant No. 1 Gulam Rasool died on 5.12.84 before passing of judgment and his L.Rs. were substituted on 21.1.88. It is admitted fact on record that the plaintiff No. 2/6 Mst. Zamila died on 20.10.90 as per certificate on record, defendant No. 1/4 Bibi Begum and 1/9 Noor Hassan also died. Neither their legal representatives were brought on record not any application was filed under Order22 Rule 4 CPC along with an application u/s 5 of the Limitation Act and admittedly no steps have been taken for bringing their legal representatives., Therefore, the appeal abates but to determine whether the appeal abates to the extent of deceased defendant or as a whole.
To assail, the preliminary objection that the appeal has abated, the argument of learned Counsel for the appellant is that the deceased defendants and deceased Plaintiff died prior to passing of judgment in the suit, so there was no necessity to bring the legal representatives of defendant No. 1/4 Mst. Bibi Begum, defendant No. 1/9 Noor Hassan and Plaintiff No. 2/6 Mst. Zamila on record. So far as this argument is concerned that the defendants No. 1/4 and 1/9 died prior to passing of judgment, it is not in dispute even if they died during the pendency of the suit, the appellant cannot take advantage as he did not file any application for the substitution of L.Rs. as he had moved for substitution of L.Rs. of two deceased plaintiffs and the deceased defendant No. 1 and they were substituted by the court below. The plaintiff-appellants have also not moved any application under Order 22 Rule 4 CPC for exempting them from bringing L.Rs of the deceased persons on record. The appellants have not stated this fact in memo of appeal and for the first time have come out with this plea only in his reply to the application dt. 30.11.91 of the respondents that as they died during the pendency of suit they were not made party in appeal. In view of the settled proposition of law, no decree can be passed against a dead person. Similarly, if suit is dismissed, the dismissal of the suit will have the same effect against the deceased plaintiff. The same principle will be applicable in appeal if legal representatives are not substituted. Applying the said principle it can be said that if the appeal succeeds rights of the L.Rs. of the deceased defendants No. 1/4 Bibi Begum and 1/9 Noor Hassan will be affected, so also in case the appeal fails their rights and rights of the deceased plaintiff No. 2/6 Mst. Zamila will be affected. As such in any case in the absence of L.Rs. of defendants No. 1/4 and 1/9 and of plaintiff No. 2/6, inconsistent decrees may come into existence and that too will not be made effective.
The contention of the learned Counsel for the appellant that it was the duly of the respondent to communicate the court under Order 22 Rule 10 A CPC regarding the fact of death of deceased defendants No. 1/4 and 1/9, is of no avail as the appellants themselves moved an application for bringing L.Rs. of deceased defendant No. 1/9 Noor Hassan on record in another S.B. Civil Misc. Appeal No. 41/88 on 19.9.88. In addition to aforesaid defendants, one legal representative of plaintiff No. 2 Nizamuddin, Mst. Zamila, the plaintiff No. 2/6 also died on 20.10.90 during the pendency of appeal though not admitted by the learned Counsel for the plaintiff-appellants but adniittedjy her legal representatives were also not brought on record and for that the appellants cannot shift the responsibility that it was the duly of the defendant-respondents to communicate to the court,and the appellants cannot seek any relief as the law combs to rescue to such persons who arc themselves vigilant about their rights.
As regards the contention that the deceased defendant''s No. 1/4 Mst. Bibi Begum D/0 Gulam Rasool and 1/9 Noor Hassan S/o Usman did not file any written statement nor appeared in the witness box and for the plaintiff No. 2/6 Mst. Zamila D/o Nizamuddin it has been contended that she has been represented by her mother Mst. Nathi plaintiff No. 2/2, therefore, there is no necessity to bring their L.Rs. on record.
As discussed above it is true that if one of the legal representative is already on record to represent the estate of the deceased even in a different capacity the appeal does not abate. It is also true that the exemption of impleading the legal representative of the deceased can be granted where the defendant neither filed the written statement nor appeared in the witness box and even did not contest the suit but in the instant case the appellants have never asked for exemption by moving a written application or even orally under Order 22 Rule 4 CPC, so also none of the legal representatives of the deceased L.Rs are on record even in a different capacity to represent their interest in the case and further more the deceased defendant Noor Hassan s/o Usman No. 1/9 (originally 2/4) filed his written statement on 4.12.1978. Therefore, the case of Girdharilal v. Laxmi narain (supra) is not applicable as in that case application for exemption was filed. The appellant cannot take advantage of Bhagwan and Ors. v. Prakash Chand (supra) as in that case sole legal representative of the deceased party was on record in a different capacity and permission for exemption was sought. The case of Pemi Bai v. Shankali Bai (supra) is also not applicable to the facts of present case as in that case out of two legal representatives of the deceased Phooli Bai, her one legal representative Mool Chand was on record in a different capacity and there was no allegation that they were not diligent in making bonafide enquiry or any motive fraudulent or otherwise in not adding the other representative Mst. Lehari Bai. The case of Faqira v. B.O.Rs (supra) cited by the learned Counsel for the appellants does not help the appellants as in that case out of legal representatives of the deceased party, one son Aladdin was already on record. As such this apeal abates. That apart admittedly both the parties are Muslim and suit was filed against the L.Rs. of Usman; his widow including minors defendant No. 8 to 12, the alleged purchaser, who contested the suit but admittedly they have not been made a party as L. Rs. of deceased Usman but they have been made party as L.Rs. of Gulam Rasool along with other L.Rs. of Gulam Rasool and, therefore, they have deliberately misstated the fact by making the deceased defendant No. 1/9 Noor Hassan as legal representative of Gulam Rasool whereas in the suit he was party as defendant No. 2/4 as the legal representative of Usman and contested the suit by filing written statement alongwith other defendants viz. defendant No. 2 Mst. Methi w/o Usman who was representing minors No. 8 to 12, defendant No. 3 Habibur Rehman S/o Usman, and defendant No. 6 Abdul Samad s/o Usman and furthermore the fact of death of deceased defendant No. 1/9 Noor Hassan was within their knowledge particularly when the appellants moved application for bringing eight L.Rs. of the deceased on record in misc. appeal No. 41/88 on 19.8.88 but not made any application for bringing L.Rs. in this case. Moreso, the appellants did not move any application for bringing Six L.Rs. of the plaintiff No. 2/6 Mst. Zamila on record which are six in number, rather staled a wrong fact that she died during the pendency of suit, which is clear suppression of fact as is evident from her death certificate showing her death on 20.10.90. So, looking to the conduct of the appellants they are not entitled to seek any relief and this appeal deserves to be dismissed even on this count. In view of this, the appeal is abated not to the extent of deceased but as a whole.
Therefore, as discussed above and looking to the facts and circumstances of this case, in my opinion, the preliminary objections raised by the learned Counsel for the respondent has force. The preliminary objections are sustained and the appeal is dismissed as abated with cost.