Therefore, the law on the issue
stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua
the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter- dependent upon one or the other, nor
the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-`-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test." (Emphasis added)1
Bombay High Court
All Agriculturist And vs A) Subhash Margo Jondhali on 27 October, 2010
Bench: S. S. Shinde
Citation; 2011 (2) MHLJ 803 Bombay
1. This civil revision application has been
filed challenging the order dated 2nd August,
2001 rejecting the petitioners' application filed
under O. 6 R. 17 of C.P.C. for amendment to
written statement and also the order dated 19th
January, 2001 below Exh.134 passed in Special
Civil Suit No.123/1990 by the C.J.S.D., 3
Nandurbar.
2. The background facts leading to filing of
this civil revision application are, as under:
One Hasan the predecessor of the Respondents
No.1 to 8 herein filed Special Civil Suit No.123
of 1990 in the Court of C.J.S.D., Nandurbar
against the petitioners and others alleging that
the land Block No.46 admeasuring 2.76 R was owned
by one Deoram Laxman Vaidya, who died during the
pendency of the suit. It was alleged that Deoram
agreed to sell this land to Hasan on 28.12.1989
and executed agreement of sale. It was alleged
that he committed breach of agreement. It was
further alleged that the suit land has been sold
to the petitioner no.6 Sumanbai. The relief of
specific performance of contract or in the
alternative, damages were claimed.
Deceased Deoram by his written statement
contested the suit. He denied the transaction
with Hasan etc.
4
3. It is the case of the petitioners herein
that during pendency of the suit , Yashodabai
original defendant No.1B died leaving heirs. The
said Yashodabai had already filed R.C.S. No.
6/1990 against Hasan alleging that she was in
possession of the land and claiming injunction.
Yashodbai was widow of Narayan Laxman the real
brother of the original defendant Deoram Laxman.
4. It is further case of the petitioners herein
that the respondents 1A to 1H, since knew about
the death of Yashodabai, passed a purshis in the
suit informing the trial Court about death of
Yashodabai, that they do not want to bring her
legal representatives on record in the suit.
Therefore, the suit against her stood abated /
disposed.
When the petitioners herein moved the trial
Court by an application Exh.134 on 20.11.2000
stating therein that the suit is abated and
should be disposed of in view of the fact that
Yashodabai is no more and her legal 5
representatives are not brought on record, the
trial Court rejected the said application by
order dated 19.1.2001 holding that the entire
suit does not abate.
5. The petitioners also moved the trial Court
on 20th February, 2001 by filing application
seeking leave of the Court to amend the written
statement. The petitioners wanted to take plea
that in absence of Yashodabai suit is bad for
non-joinder of necessary party etc. The trial
Court however, by its order dated 2nd August, 2001
rejected the said application. Aggrieved by the
said orders, this civil revision application has
been filed.
6. The learned Counsel for the revision
petitioners submitted that the trial Court was
unnecessarily influenced by the rejection of Exh.
134 which was entirely different application and
its order had no bearing on the application for
amending the written statement. The Court below
failed to consider that the amendments cannot be
refused on the grounds mentioned in the impugned 6
order. The trial Court acted illegally and with
material irregularity in exercise of its
jurisdiction in rejecting the application. It is
further submitted that the petitioners filed
application at Exh.20 before the trial Court on
20.11.2000 which came to be rejected by order
dated 19th January,2001. The rejection of the
said application by the Court below is illegal
and as a result of non application of mind.
According to the learned Counsel for the
petitioners, the judgment of this Court in case
of Shashikant Shamrao Mane and others vs. Atmaram
Vallappa Shewale and another (1999(2) Mh.L.J.489)
is per incuriam and it is further submitted that
the property is indisputably joint family
property and if the decree is passed for the
specific performance, the same is not executable.
The learned Counsel, in support of his contention
placed reliance on the reported judgment of the
Supreme Court in case of Mahadu and others vs.
Bhagirathibai and others (1971 Mh.L.J. 229) and
also in Dwarka Prasad Singh and others vs.
Harikant Prasad Singh and others (AIR 1973 SC
655). The learned Counsel further submitted that 7
the original defendants have become joint owners
and possessors of the property in dispute. The
legal representatives of Yashodabai are not
brought on record by the plaintiffs. Hence, the
entire suit abates and therefore, the said
application should have been disposed of
accordingly.
7. The learned Counsel for the petitioners
submitted that the trial Court has rejected the
application filed by the petitioners on the
ground that the suit is not only filed for
specific performance of contract but in the
alternative, for damages and, therefore, cannot
abate as a whole as claimed by the defendants.
However, the Counsel submits that the trial court
ought to have held that the suit filed for
specific performance of contract stands abated.
The sum and substance of the arguments of the
learned Counsel for the petitioners is that at
least, in view of death of respondent Yashodabai
and in absence of her legal representatives on
record, the prayer of the plaintiff for specific
performance of contract ought to have been 8
disposed of by the trial Court as abated.
7. The learned Counsel appearing for the
respondents submitted that the suit filed by the
plaintiffs is not only for specific performance
but in the alternative, for damages also and
therefore, there was no question of abatement as
prayed for by the defendants. The learned
Counsel, in support of his contention, placed
reliance on the reported judgments of this Court
in case of Shashikant (supra). The learned
Counsel invited my attention to the prayers in
the suit in support of his contention that the
suit is not only for the specific performance but
also for damages. According to the learned
Counsel for the respondents, in revision, it is
not possible to come to the conclusion that the
entire suit is abated due to death of one of the
legal representatives of Deoram, unless the
evidence is led before the trial Court and on the
strength of evidence, the trial Court has
recorded the findings to the effect that either
the suit gets abated in its entirety or only
against the legal representatives of the deceased 9
Yashodabai. The learned Counsel further
submitted that if this revision application is
allowed, lis pending before the trial Court will
come to an end. The learned Counsel, therefore,
urged that no interference is warranted in the
revisional jurisdiction.
8. I have given due consideration to the rival
submissions and also perused the reasons recorded
by the Court below while passing order below Exh.
134. In paragraph 4 of the order, the Court has
referred the judgment of this Court in case of
Mahadu and others (supra) and in case of
Shashikant (supra). Relying on the observations
in case of Shashikant (supra) in paragraph 5, the
trial Court observed that the identical facts are
involved in the case in hand and the suit is
filed for specific performance of contract
against the defendants and in the alternative,
the plaintiff has claimed damages against the
defendants. Therefore, in the facts and
circumstances of the case, the entire suit filed
by the plaintiff does not abate in spite of the
fact that Legal Representatives of Yashodabai are 10
not brought on record. The trial Court held that
the suit being for specific performance and in
the alternative for damages, cannot abate as a
whole as claimed by the defendants.
9. I find considerable force in the arguments
advanced by the learned Counsel for the revision
petitioner that the impugned order dated 19th
January, 2009, by which the application of the
defendant i.e. present revision petitioner was
rejected, is without assigning independent
reasons. The trial Court has relied upon the
judgment of this Court in case of Shashikant
Shamrao Mane and others vs. Atmaram Yallappa
Shewale and another reported in 1999(2) Mh.L.J.
489 and concluded that the present case also
involves identical facts like the case of
Shashikant (supra). There cannot be identical
facts in two different matters. From the
observations of the learned Judge that in the
instant case exactly identical facts are before
this Court like the facts in the case of
Shashikant (supra), is misconceived. There
cannot be identical facts in two different cases. 11
Therefore, it was incumbent upon the trial Court
to find out as to what are the facts in that case
and the facts in the case in hand. While
applying the ratio of the other case, the Court
should make endeavour at least to state the facts
of that case briefly and the facts of the case in
hand and then only jump to the conclusion that
there are similar facts in the case on which
reliance has been placed and the case before the
learned Judge for adjudication. From perusal of
the order below Exh.134, it appears that the
Court has rejected the application of the
petitioner on the ground that the suit is filed
for specific performance and in the alternative,
for damages, and therefore, it cannot abate as a
whole as claimed by the defendants.
Though there is a composite prayer in the
suit, when the legal issue was raised by the
defendants that in view of death of one of the
defendants, the whole suit for specific
performance is abated since the legal
representatives of the deceased defendant
Yashodabai are not brought on record and purshis 12
has been filed by the respondentsd 1A to 1H that
they do not want to bring legal representatives
of the deceased Yashodabai on record, the Court
ought to have answered legal aspect on merits of
the case at the threshold itself.
On the basis of the pleadings in the suit
and also upon perusal of the documents on record,
it appears that the subject mater of the suit is
joint family property. Prima facie, it appears
that the separate shares are not demarcated and
there is nothing on record which would indicate
that each of the respondents has separate share
in the property. Upon perusal of the pleadings,
it appears that the suit property is joint family
property and therefore, if the shares of the
members of the joint family are not separated and
specified, in that case, the legal position is
that the whole suit for the specific performance
gets abated. In my opinion, the trial Court
should have made endeavour to address this issue
in detail after taking into consideration the
various pronouncements of the Honourable Supreme
Court on the issue.
13
The Honourable Supreme Court in case of
and others, reported in AIR 1972 SC 1181, while
interpreting Order O.22, R.4, 11, O.1, R.9, O.41,
R.4 of the Code of Civil Procedure held in para
16 that under R.4(3) r/w R.11 of Order 22 of the
C.P.C., the appeal abates as against the deceased
respondent where within the time limited by law
no application is made to bring his heirs or
legal representatives on record. Para 16 of the
said judgment reads, thus:
"16. Under Rule 4 (3) r/w Rule 11 of
Order XXII C.P.C. the appeal abates
as against the deceased respondent where within the time limited by law
no application is made to bring his
heirs or legal representatives on record. As pointed out by this Court
in The State of Punjab v. Nathu Rain(4) it is not correct to say that the appeal abates against the other
respondents. Under certain circumstances the appeal may not be
proceeded with and is liable to be
dismissed. But that is so not because 14
of the procedural defect but because, as Mulla has pointed out, it is part
of the substantive law. (See Mulla
C.P.C. Vol. I Thirteenth Edition p.
620 under note Non-.joinder of- Parties). No exhaustive statement can be made as to the- circumstances under which an appeal in such cases
cannot proceed. But the courts, as
pointed out in the above decision,
have applied one or the other of three tests. The courts will not proceed with an appeal (1) when the
success of the appeal may lead to the court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and, therefore, it 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,
15
be in- effective that is to say it
could not be successfully executed.
These three tests, as pointed out by
this Court in Pandit Sri Chand and
Ors. v. Mls. Jagdish Parshad Kishan
Chand and Ors.(2) are not cumulative
tests. Even if one of them is satisfied, the Court may dismiss the
appeal." (Emphasis added).
Yet in another reported judgment of the
Supreme Court in the case of Dwarka Prasad Singh
and others vs. Harikant Prasad Singh and others,
reported in AIR 1973 SC 655, in paragraph 7, it
is held, thus:
"7. The second limb of argument of the appellants is based on Order 41, Rule 5(4), Civil Procedure Code. According to that rule 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 all the defendants any one of the plaintiffs or 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. As the 16
appeal had been filed by defendants second party, it has been contended, that it remained complete and competent in spite of the death of Guha, defendant first party, for the reason that the decree proceeded on a ground common to all the defendants. It appears that there was conflict of judicial opinion on the question whether the said rule could be invoked when one of the several appellants had died and his legal representatives had not been brought on the record with the result that the appeal had abated against him. But this matter stood concluded by the decision of this Court in Rameshwar Prasad v. Shyam Beharilal Jagannath (1964)3 SCR 549 = (AIR 1963 SC 1901. In that case the appeal had
been filed in the High Court not by any one or some of the plaintiffs against the whole decree but had been filed by all the plaintiffs jointly. One of the appellants died and his legal representatives were not impleaded. It was laid down by this Court that Order 41, Rule 4 could not be invoked because the appellate court had no power to proceed with the appeal and to reverse and vary the decree in favour of all
the plaintiffs or defendants under that rule because if all the plaintiffs or 17
defendants had appealed from the decree and any one of them had died the appeal had abated so far as he was concerned under Order 22, Rule 3. The appeal of the surviving appellant could also not be heard because of the rule laid down in the State of Punjab v. Nathu Ram (1962)2 SCR 636 = (AIR 1962 SC 89).
According to that rule the abatement of an appeal means not only that the decree between the appellant and the deceased respondent, becomes final but also, as, a necessary corollary, the appellate court cannot in any way modify that decree directly or indirectly. The decision in Nathu Ram's case (supra) was referred to in Pandit Siri Chand & Others v. M/s Jagdish Parshad Kishan Chand (1966)3 SCR 451 = (AIR 1966 SC 1427) where the decision was somewhat similar to Rameshwar Prasad's case (supra). It was also emphasized that in a situation where two inconsistent orders, or decrees would result the rule in Nathu Ram's
case would be applicable. It may be mentioned that in that case an award
had been made for payment of compensation in favour of two brothers L. & N. The State appealed against the award to the High Court. During the pendency of the appeal respondent L 18
died and no application was made for
bringing on record his legal representatives within the, requisite period of limitation. The question was that since the appeal had abated against L what was its effect in appeal against N. It was observed that the consideration which would weigh with the court in deciding whether the entire appeal had abated or not would be whether the appeal between the appellants and the respondents other than the deceased respondent could be said to be properly constituted or could be said to have all the necessary parties for the decision of the controversy before the court. Another main test was whether the success of
the appeal would lead to a decision which would be in conflict with the decision between the appellant and the deceased respondent. Thus the court will have, to pass a decree contradictory to the, one which had already become final with respect to the same subject matter between the appellant and the deceased respondent. It is arguable that the present case is distinguishable from the decisions in Rameshwar Prasad and Pt. Siri Chand (supra). Here the appellate court could, under Order 41, Rule 4 of the
19
Civil Procedure Code reverse the decree for specific performance since the defendants second party filed the appeal and Guha, the vendor who died, had not joined in the appeal. The decree for specific performance proceeded on a ground common to both
sets of defendants. It could, therefore, be set aside in terms of the above provision. But there is a joint decree in favour of both sets of defendants for the receipt of Rs. 77,000/-. If the decree for specific performance is set aside that part of the decree will also have to go. It is not possible to understand how that can be done in the absence of the legal
representatives of the deceased, Guha.
More,over, the plaintiffs had claimed against Guha, in the alternative, a decree for substantial amount consisting of the part consideration paid and certain other amounts. If Guha had been alive or if his legal representatives had been impleaded in time the court could, while setting aside the decree for specific performance, grant the alternative prayer which was only made against Guha. This cannot be done now. In these circumstances we are of the view that order 41, Rule 4 of the Code of Civil 20
Procedure cannot be of any avail to the appellants. The abatement of the appeal, so far as Guha was concerned, will prove fatal to the entire appeal as either inconsistent and contradictory decrees will have to be passed or proper reliefs cannot be granted in the absence of a necessary party against that party or his legal representatives."
Yet in another judgment, the Constitution
Bench of the Supreme Court in the case of Sardar
Amarjit Singh Kalra & Ors. v. Pramod Gupta and
ors., reported in AIR 2003 SC 2588, after
considering the large number of judgments of the
Supreme Court, reached the following conclusions:
"(a) In case of "Joint and indivisible decree", "Joint and inseverable or inseparable decree", the abatement of proceedings in relation to one or more of the appellant(s) or respondent(s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and
require to be dismissed in toto as otherwise inconsistent or contradictory 21
decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject matter vis-a-vis the others; (b) the question as to whether the Court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive
statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially; (c) existence of a joint right as distinguished from tenancy in common alone is not the criteria but the joint 9 character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged; (d) where the dispute between two groups of parties centered around claims or based on grounds common relating to the respective groups litigating as distinct groups or bodies -- the issue involved for consideration in such class of cases would be one and indivisible; and (e) when the issues involved in more than one appeals dealt with as group or batch of appeals, which are common and identical in all 22
such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals." The Court further observed that any relief granted and the decree ultimately passed, would become totally unenforceable and mutually self-destructive and unworkable vis-`-vis the other part, which had become final. The appeal has to be declared abated in toto. It is
the duty of the court to preserve and protect the rights of the parties." (Emphasis added).
Yet in another judgment in case of Shahazada
Bi & ors, v. Halimabi, AIR 2004 SC 3942, the
Supreme Court considered the same issue and held
as under:
"That, so far as the statute is concerned, the appeal abates only qua the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles. If the case is of such a
23
nature that the absence of the legal
representative of the deceased respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject matter. The Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole. If, on the other
hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the Court should not hear the appeal and adjudicate upon the dispute between the parties." (Emphasis added).
In another reported judgment in the case of
Budh Ram and ors. v. Bansi and ors., reported in
2010 AIR SCW 5071, in para 19, held thus: 24
"19. Therefore, the law on the issue
stands crystallised to the effect that as to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua
the deceased defendants/respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter- dependent upon one or the other, nor
the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-`-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test." (Emphasis added)
10. Therefore, in the light of the aforesaid
authoritative pronouncements of the Supreme 25
Court, the trial Court was not justified in
merely relying on only the judgment in the case
of Shashikant (supra) and without discussing the
facts of that case, concluding that the identical
facts are involved in both cases. In fact, the
impugned order dated 19th January, 2001 below Exh.
134 is without assigning any separate reasons
whatsoever. The Court below failed to exercise
the jurisdiction vested in it by not adjudicating
the issue properly which was brought by the
defendants before the Court by way of filing an
application at Exh.134. In fact, there was
specific pleading in the application that the
defendant Yashodabai had died during pendency of
the suit and the purshis has been filed on behalf
of the plaintiffs that they do not want to bring
legal representatives of Yashodabai on record.
It appears that, the subject matter of the suit
was joint family property where share of each of
the respondents appears to be not demarcated. In
this background, the trial Court should have
exercised its jurisdiction vested in it and
should have tried to find out at threshold
whether the suit for specific performance 26
survives in view of the fact that legal
representatives of the deceased defendant
Yashodabai are not brought on record. Not only
the trial Court has failed to exercise
jurisdiction vested in it but, also has not
assigned any separate reasons to conclude the
important issue raised by the defendant which
goes to the roots of the matter. The trial Court
was bound to exercise the jurisdiction vested in
it and to find out the effect of death of
defendant and not bringing her legal
representatives on record, and whether the suit
for the specific performance abates against the
said defendant or the suit abates in its entirety
since the shares of the members of the joint
family are not demarcated.
11. The another order passed by the trial Court
rejecting the application of the petitioners for
amendment of written statement is a consequential
order since the earlier application of the
revision petitioner was rejected. Since, this
Court is of the opinion that the order dated 19th
January, 2001 below Exh.134 passed by the trial 27
Court is liable to be set aside, for the reasons
recorded herein above, the order dated 2nd August,
2001 rejecting the application of the petitioners
for amendment of written statement is also
required to be set aside.
12. In the result, the order dated 19th January,
2001 below Exh.134 passed by the trial Court and
the order dated 2nd August, 2001 rejecting the
application of the petitioners for amendment of
written statement in Special Civil Suit No.123 of
1990, are quashed and set aside. Both the
applications are restored to original position.
The trial Court shall hear and dispose of the
said applications afresh and after giving
opportunity to the parties and in the light of
relevant provisions of the Code of Civil
Procedure and also the pronouncements of the Apex
Court on the issue, and pass appropriate orders
within a period of three months from receipt of
this order. Rule is made absolute in the above
terms with no order as to costs. Record &
proceedings be sent back.
[ S.S. SHINDE, J ]
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