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Bombay High CourtIndian Cases

Govind Laxman Jadhav vs Namdeo Balu Jadhav on 5 July 2004

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Bombay High Court
Govind Laxman Jadhav vs Namdeo Balu Jadhav on 5 July, 2004
Equivalent citations: 2005(1)BOMCR278, 2005(1)MHLJ8
Author: Abhay S. Oka
Bench: Abhay S. Oka
JUDGMENT

Abhay S. Oka, J.

1. On 11th April, 1988 this Court admitted this Second Appeal by observing that ground (b) in the Memorandum of Appeal raises a substantial question of law. By order dated 8th June, 2004 passed in exercise of power under the proviso to sub-section (5) of Section 100 of the Code of Civil Procedure, 1908, this Court framed one more substantial question of law. After framing the said substantial question of law, opportunity was given to the respondent to argue on the said substantial question of law. For that purpose, on 8th June, 2004, the hearing was adjourned and sufficient time was granted. This Second Appeal was argued extensively on 30th June, 2004 and was kept today for further hearing and judgment.

2. The ground (b) in the Memorandum of Appeal reads thus :

(b) Whether the First Appellate Court has misread and misconstrued the pleadings and has erroneously allowed the appeal?
The additional substantial question of law framed by me is as under :

“Whether the Appeal preferred by the original defendants abated in its entirety as the decree passed by the trial Court is joint and inseparable/indivisible inasmuch as the legal representatives of the original defendant No. 2/Appellant No. 2 in the District Court were not brought on record after the death of the said defendant No. 2/Appellant No. 2 during the pendency of Appeal?
3. With a view to appreciate the submissions made by the learned Counsel appealing for the parties, it is necessary to briefly refer to the facts of the case. The Appellant is the original plaintiff and the respondent is the original defendant No. 1. The suit was filed by the original plaintiff against the respondent and one Keru Tatoba Jadhav (hereinafter referred to as “defendant No. 2”) for removal of encroachment. The suit was decreed by the trial Court. An appeal was preferred by the respondent and defendant No. 2. The said appeal has been allowed by the District Court. Hence the original plaintiff has preferred this Second Appeal.

4. The learned Counsel appearing for the Appellant submitted that the original defendant No. 2 who was Appellant No. 2 before the First Appeal Court expired during the pendency of the Appeal and his legal representatives were not brought on record. He submitted that as the decree passed against the respondent and defendant No. 2 was joint and inseparable, the Appeal before the District Court abated in its entirety. He submitted that the finding recorded by the Appellate Court that the entire Appeal did not abate is contrary to the law laid down by the Apex Court. He relied upon several Judgments a reference to which will be made in the later part of this Judgment.

5. The learned Counsel appearing for the respondent relied upon the provisions of Rule 4 of Order XLI of the Code of Civil Procedure, 1908 (“Code” for short). He submitted that the respondent alone was entitled to prefer the Appeal for challenging the Judgment and Decree of the trial Court and even if no appeal was preferred by the original defendant No. 2, the Appellate Court had all the powers to set aside the Decree passed against the respondent and the defendant No. 2, though the Decree was joint and inseparable. He submitted that Rule 4 of Order XLI of the Code is specifically enacted to meet the contingency which arises in the cases like the present case. He submitted that merely because the legal representatives of the original defendant No. 2 did not take steps for bringing their names on record, the case of the respondent on merits cannot be allowed to be defeated. He submitted that in view of the Rule 4 of Order XLI of the Code, the District Court had power to set aside the decree. He submitted that the effect of not bringing on record the legal representatives of the deceased defendant No. 2 will be at the highest that the Appeal will have to be treated as an Appeal filed by one of the two defendants against whom decree was passed by the trial Court. He submitted that no interference was required.

6. It is necessary to refer to Order XXII Rule 3 of the Code to appreciate the submissions made by the learned Counsel appearing for the parties. Rule 3 of Order XXII of the Code deals with the procedure to be adopted in case of death of one of the several plaintiffs or of a sole plaintiff. The Rule 11 of Order XXII of the Code provides that the Order XXII will apply to the Appeals and the word “plaintiff shall be held to include an Appellant and the word “defendant” a respondent, and the word “suit” an appeal. It is therefore clear that the Appellants before the District Court i.e. the respondent and the original defendant No. 2 were in the position of the plaintiffs. Rule 3 of Order XXII of the Code reads as under :

3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

On a plain reading of Rule 3, it is very clear that the requirement of law is that after one of the plaintiffs expires an application is required to be made for bringing on record the legal representatives of the deceased plaintiff. The provision does not require only the legal representatives of the deceased plaintiffs to apply for bringing on record their names as Appellants. An application can be made by the surviving plaintiff or plaintiffs. Such an application is not required to be made specifically for impleading the legal representatives of the deceased plaintiff in the array of the plaintiffs. The provision is that on such application being made, the legal representatives of the deceased plaintiff have to be impleaded as parties. Therefore, in a case where there are two plaintiffs, after the death of one of them, if the legal representatives of the deceased plaintiff are not interested in prosecuting the suit, on an Application made by the surviving plaintiff, the legal representatives of the deceased plaintiff can be made defendants.

7. In the facts of the case, the respondent herein being co-Appellant with the defendant No. 2, could have applied for bringing on record the legal representatives of the deceased defendant No. 2. If the legal representatives of the deceased defendant No. 2 were not interested in prosecuting the appeal, at the instance of the respondent herein, the said legal representatives of the original defendant No. 2 could have been impleaded as party respondent. The requirement of Rule 3 of Order XXII of the Code could have satisfied by the respondent by making application for bringing the legal representatives of deceased defendant No. 2 on record of the Appeal as party respondents. However, the said step was not taken by the respondent and therefore, the legal representatives of the deceased defendant No. 2 were not at all made parties to the Appeal.

8. If the pleadings and the decree passed by the trial Court is examined, it cannot be disputed that the Decree is joint and indivisible. It is not the case of either the Appellant or the respondent that the defendant No. 2 was in separate possession of a distinct portion of the suit property. It is therefore very obvious that the Decree passed by the trial Court proceeds on the grounds common to all the defendants.

9. Rule 4 of Order XLI of the Code reads thus :

“4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.”
On a plain reading of Rule 4, it is very clear that the respondent was entitled to challenge the decree passed by the trial Court by preferring an appeal though the original defendant No. 2 was not interested in preferring an appeal. In such an appeal preferred by only one of the defendants, the Appellate Court had power to reverse the Decree though it proceeded on the ground common to both the defendants. However, it is to be noted that if the Appeal was to be filed by the present respondent alone, it would have been incumbent upon him to implead the original defendant No. 2 as party respondent in the Appeal.

10. Now the question is whether Rule 4 of Order XLI of the Code can be applied in the facts of the case and whether the respondent can rely upon Rule 4 when the original defendant No. 2 was the co-Appellant with him and his legal representatives were not brought on record in any capacity. So far as this aspect is concerned, the learned Counsel appearing for the respondent has relied upon a Judgment of the Division Bench of this Court reported in AIR 1945 Bombay page 126. The Division Bench held that when an Appeal is filed by two persons and one of them dies during the pendency of the appeal, the provisions of Rule 4 of Order XLI apply and it is competent for the Court to pass a decree in the Appeal even in respect of the person who is not before the Court at that time. Even after the Appeal has abated, it is open to the Court acting under Order XLI, Rule 4 of the Code to pass a Decree in respect of all the Appellants including the Appellant whose appeal has been abated. The said Judgment if read as a whole, it no doubt fully supports the case of the respondent that after the demise of the original defendant No. 2, the Appellate Court could have invoked powers under Rule 4 of Order XLI of the Code.

11. The same issue came up for consideration before the Apex Court and the Apex Court has decided the said issue in a later Judgment , Rameshwar Prasad and Ors. v. Shambehari Lal Jagannath and Anr.. In the facts of the case before the Apex Court, a suit for possession was instituted against two defendants on allegation that the 1st defendant was tenant and the 2nd defendant was a sub-tenant. The suit was decreed against both the defendants. On appeal by the defendant No. 2, the District Court set aside the decree for eviction. There were nine original plaintiffs who filed Second Appeal before the High Court. One of the nine Appellants died during the pendency of the Second Appeal and no application was made for bringing on record the legal representatives of the deceased Appellant. The argument before the Apex Court was that in such a case the Appeal can proceed insofar as the surviving Appellants are concerned and Rule 4 of Order XLI of the Code can be invoked for deciding the Appeal on merits.

12. A specific contention was raised before the Apex Court that the surviving Appellants could have instituted the Appeal against the entire decree in view of Rule 4 of Order XLI of the Code and the Court could have reversed or varied the whole decree in favour of all the original plaintiffs though no Appeal was preferred by the deceased Appellant. The Apex Court was of the view that Rule 4 of Order XLI and Rule 3 of Order 22 of the Code deal with the different stages of appeal and provided for different contingencies. Rule 4 of Order XLI applies to the stage where the Appeal is instituted and at that stage one of the defendants can take advantage of Rule 4 and institute an Appeal. Once the Appeal is preferred by all the defendants provisions of Rule 4 of Order XLI become inoperative so far as the defendants are concerned, and if one of the defendants/Appellants has died during the pendency of the Appeal, his legal representatives have to be brought on record. If such legal representatives are not brought on record and if the decree is joint and inseparable, the Appeal cannot proceed further. Thus the Apex Court has taken a view that Order 22 Rule 3 of the Code will have an overriding effect on Rule 4 of Order XLI of the Code in the sense that once the Appeal is preferred by all the defendants without invoking Rule 4 of Order XLI of the Code and if one of the defendants expires during the pendency of the Appeal, his legal representatives must be brought on record.

13. The Apex Court in the aforesaid judgment has also dealt with the submission made that in case the legal representatives of one of the deceased Appellants are not brought on record, the power of the Appellate Court under Rule 33 of Order XLI can be invoked and once it is shown that the Decree passed by the trial Court was illegal, relief could have been granted in favour of the defendant whose legal representatives are not brought on record. However, the said argument was expressly negatived by the Apex Court. The Apex Court held that the discretionary power under Rule 33 of Order XLI cannot be exercised to nullify the effect of abatement. After referring to Rule 31 of Order XLI the Apex Court held that:

“When the legal representatives of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal insofar as they are concerned. This is always avoided.”
Thus the argument of the respondent based on Rule 4 of Order XLI of the Code therefore will have to be rejected.

14. In another Judgment of the Apex Court reported in AIR 1966 SC 1427, Shri Chand and Ors. v. M/s Jagdish Pershad Kishan Chand and Ors., the Apex Court referred to the earlier Judgment in the case of Rameshwar Prasad (supra) and relying on the said Judgment held that the Appellate Court has no power to proceed with an appeal or to reverse and vary the decree in favour of all the plaintiffs or the defendants under Order XLI, Rule 4 of the Code when the decree proceeds on a ground common to all the plaintiffs or the defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as such plaintiffs or defendant is concerned. In another Judgment of the Apex Court , State of Punjab v. Nathu Ram, the Apex Court has taken a similar view.

15. In the present case as held earlier, the decree against the defendants is joint and indivisible. The legal representatives of the original defendant No. 2 were not brought on record in the Appeal. As a result, the Decree insofar as defendant No. 2 is concerned stood confirmed. Therefore, the Appellate Court by allowing the Appeal filed by the respondent could not have passed a decree which is inconsistent with the decree which was confirmed as against the defendant No. 2. Therefore, the Appellate Court committed an error by holding that the Appeal can proceed notwithstanding abatement as against Appellant No. 2 before it. As a result of abatement of the Appeal as against Appellant No. 2 in the said Appeal, and in view of the fact that the Decree passed is joint and indivisible, the Appellate Court could not have proceeded with the Appeal. Hence the Appeal which was continued by the respondent was itself incompetent. Therefore, the decree passed by the Appellate Court deserves to be quashed and set aside.

16. The Second Appeal is allowed. The Decree passed by the learned 3rd Addl. District Judge, Kolhapur, in Civil Appeal No. 151 of 1984 is set aside and the Decree passed by the trial Court is restored. There will be no order as to costs.