Rangubai Kom Shankar Jagtap Vs.
Sunderabai Bhratar Sakharam Jedhe & Ors [1965] INSC 52 (1 March 1965)
01/03/1965 SUBBARAO, K.
SUBBARAO, K.
SHAH, J.C.
BACHAWAT, R.S.
CITATION: 1965 AIR 1794 1965 SCR (3) 211
CITATOR INFO :
E 1979 SC1393 (35)
ACT:
Legal representatives of deceased
respondent--Brought on record in final decree proceedings--If enures for
purposes of appeal previously filed--Appeal--When continuation of suit.
HEADNOTE:
The respondents filed a suit against the
petitioner in 1954 for the possession of certain property and for mesne profits
and obtained decree in their favour. The petitioner's appeal to the High Court
was dismissed in April 1959 and a petition for special leave to appeal to this
Court was granted in June, 1959. Thereafter, the 7th respondent died in
November 1959. The petitioner filed the present applications in October 1964
for bringing on record the legal representatives of the 7th respondent and for
condonation of delay on various grounds. It was also contended on behalf of the
petitioner that in view of the fact that after the preliminary decree for mesne
profits had been passed, the respondents/plaintiffs brought the heirs and legal
representatives of the deceased 7th respondent on record in the final decree
proceedings within the time prescribed, and as the legal representatives were
brought on record at one stage of the suit on the basis of the rule laid down
by the Privy Council in Brij Inder Singh v. Kanshi Ram, 44 I.A. 218, no
question of abatement would arise in respect of the appeal; that the final
decree proceedings are a stage in the suit and the appeal is another stage in
the suit and, therefore, the bringing on record of the legal representatives in
one stage of the suit will enure for all stages of the suit.
HELD: (i) On the facts of the case there were
no sufficient grounds for condoning the delay in bringing the legal
representatives of the 7th respondent on the record.
(ii) The order bringing the legal
representatives of the respondent on record in the final decree proceedings
cannot enure for the benefit of the appeal filed against the preliminary
decree. The appeal therefore abated so far as the 7th respondent was concerned.
[217D] An order bringing the legal representatives of a deceased party on the
record passed at the stage of an interlocutory application in a suit, or passed
while an appeal is pending where the suit is subsequently remanded to the trial
court or if passed while an appeal is pending against an interlocutory order in
passed while an appeal the subsequent stages of the suit' in all that suit,
would enure for made at one stage of the suit be it the suit these.
cases the order is final appeal against the
interlocutory order or final order in the suit, for here the appeal is only a
continuation of the suit. But the same legal position cannot be invoked where
an order is made in a suit subsequent to the filing of an appeal at an earlier
stage.
Such an order cannot be Projected,backwards
into the appeal that has already been filed so as to become an order in that
appeal [216F-217D] Brij Inder Singh v. Kanshi Ram, 44 I.A. 218 distinguished.
Shankarnaraina Saralaya v. Laxmi Hengsu,
A.I.R. 1931 referred to. Mad. 277.
N)3S.C.I.--1 212
CIVIL APPELLATE JURISDICTION: Civil
Miscellaneous Petition Nos. 2402 of 1964.
Applications for substitution for condonation
of delay.
AND Civil Appeal No. 430 of 1963.
Appeal by special leave from the judgment and
decree dated April 8, 1959, of the Bombay High Court in First Appeal No.
666 of 1954.
S.G. Patwardhan and A.G. Ratnaparkhi, for the
appellant.
Naunit Lal, for the respondents.
ORDER Subba Rao, J. These are two
applications, one for the substitution of the legal representatives of
respondent No.
7 in Civil Appeal No. 430 of 1963 on the file
of this Court and the other for the condonation of delay in filing the first
application.
The first question is whether there is
sufficient ground for excusing the delay in filing the application for bringing
the legal representatives of the 7th respondent on record. The facts are as
follows: Sakharam Maruti Jedhe and others filed Special Suit 10 of 1964 in the
Court of the Civil Judge, Senior Division Poona, against Rangubai Kom Shanker
Jagtap for possession of the plaint-schedule property and for mesne profits and
obtained a decree therein. Against the said decree defendant preferred an
appeal to the High Court of Bombay. The High Court by its judgment dated April
8, 1959, dismissed the appeal. The defendant filed an application for special
leave to prefer an appeal to this Court and the same was granted on June 16,
1959. The appeal was admitted on July 27, 1961. Between these two dates, on
November 12, 1959, the 7th respondent, Keshavarao Marutirao Jedhe died.
Thereafter. on March 7, 1964, the defendant filed Civil Application No. 1118 of
1964 in the High Court of Bombay for bringing on record the legal
representatives of the 7th respondent and for necessary certificate to that
effect. On August 11, 1964, a Division Bench of the High Court granted the
certificate. On February 19, 1964, the defendant filed in this Court Civil
Miscellaneous Petition No. 2401 of 1964 for bringing on record the legal
representatives of the 7th respondent and on October 8, 1964, filed Civil
Miscellaneous Petition No. 2402 of 1964 for condoning the delay of 4 years and
19 days in filing the aforesaid first petition. In the said petition the
petitioner gave two reasons for condoning the delay. namely, (i) the petitioner
is a poor widow living in Poona with her daughters and there is no male member
in the family of the petitioner to look after the proceedings, and (ii) after
the preliminary decree in the proceedings for the determination of the mesne
profits, the plaintiffs brought the heirs and legal representatives of the
deceased 7th respondent on record within the time prescribed and 213 as the
legal representatives were brought on record at one stage of the suit, no
question of abatement would arise in respect of the appeal. The respondents
filed a counter- affidavit pointing out that there were no grounds for excusing
the inordinate delay, that the appellant had been conducting this long drawn
litigation from the year 1946, that she had a son-in-law who was helping her,
that the deceased was a prominent man of Poona whose death was published in all
the newspapers and that the appellant was living in the same locality and she
must have had knowledge of his death soon after it occurred. It was further
pleaded that the fact that the legal representatives of the 7th respondent were
brought on record in the final decree proceedings could not in law prevent the
abatement of the appeal, if they were not brought on record in the appeal in
time.
Under O.XVI, r. 14, of the Supreme Court
Rules, 1950, an application to bring on record the legal representatives of a
deceased appellant or respondent shall be made within 90 days of the death of
the said appellant or respondent. Under the proviso thereto. in computing the
said period the time taken in obtaining a certificate from the High Court shall
be excluded. Even if the said time is excluded, there will be a delay of about
31/2 years in filing the application to bring the legal representatives of the
deceased 7th respondent on record. From the counter-affidavit filed by the
respondents it is clear that the 7th respondent was a prominent citizen of
Poona and the fact of his death was published in all newspapers; and the
petitioner resides very near the place where the 7th respondent was living. She
has been conducting this litigation from the year 1946 and was in cop, tact
with her Advocates from time to time in connection with the appeal. She has
also a son-in-law who is helping her in the litigation. She had also the
knowledge of the fact that the legal representatives of the 7th respondent were
brought on record in the final decree proceedings. In the circumstances the
fact that she is an illiterate woman cannot possibly be a ground for excusing
this inordinate delay in bringing the legal representatives of the 7th
respondent on record in the appeal. We.
therefore, hold that there is no sufficient
ground for excusing the delay in bringing the legal representatives of the 7th
respondent on record.
The next question raised is an interesting
one of law.
From the aforesaid narration of facts it will
be seen that the legal representatives of the 7th respondent were brought on
record within the prescribed time in the final decree proceedings. The question
is whether it would enure for the benefit of the appeal; that is to say whether
by reason of that fact there is no abatement of the appeal.
The relevant provisions of the Supreme Court
Rules, 1950, reads thus: We have already given the gist of O.XVI, r. 14 of the
said Rules. Rule 14-A thereof reads:
214 "The provisions of Order XXII of the
Code relating to abatement and of Article 171 in the First Schedule to the
Indian Limitation Act. 1908 (IX of 1908), shall, so far as may be applicable,
apply to appeals and proceedings under rule 12 and rule 13 in the High Court
and in the Supreme Court." Rule 14-A by reference incorporates the rules
of abatement in the Code of Civil Procedure and also Art. 171 in the First
Schedule to the Indian Limitation Act in the Supreme Court Rules. Under O.XXII,
rr. 3 and 4 of the Code of Civil Procedure, if the plaintiff or the defendant
dies and the right to sue does not survive to the surviving plaintiff or
against the surviving defendant, as the case may be, his legal representatives
shall be brought on record within the prescribed time; and where within the
time limited by law no application is made the suit shall abate so far as the
deceased plaintiff is concerned or against the deceased defendant, as the case
may be. Under r. 11 thereof. "in the application of this Order to appeals,
so far as may be, the word "plaintiff" shall be held to include the
appellant. the word "defendant" a respondent, and the word
"suit" an "appeal". The result is that for the purpose of
abatement a suit and an appeal are treated as different proceedings and the
suit or the appeal, as the case may be, abates if the legal representatives of
the deceased plaintiff or defendant are not brought on record within the time
prescribed. Under Art. 171 of the First Schedule to the Limitation Act, an
application to set aside an order of abatement shall be made within 60 days
from the date of abatement. The result of these provisions is that if an
application to bring on record the legal representatives of a respondent is not
made within 90 days from the date of death of the said respondent, the appeal
abates; but an application to set aside that abatement can be made within 60
days from the date of abatement.
But, if by reason of the fact that the legal
representatives of the deceased 7th respondent were brought on record in the
final decree proceedings, there was no abatement, this Court no doubt will
exercise its discretion liberally in condoning the delay in not formally
getting the legal representatives of a deceased party, recorded in appeal in
time.
The main contention-therefore, is that by
reason of the fact that they were brought on record in the final decree
proceedings, there was no abatement of the appeal.
It is said that the final decree proceeding
is a stage in the suit and the appeal is another stage in the suit and,
therefore, the bringing on record of the legal representatives in one stage of
the suit will enure for all stages of the suit including the appeal. This
conclusion, the argument proceeds, flows from the reasoning of the judgment of
the Judicial Committee in Brij Inder Singh v. Kanshi Ram(1). The relevant facts
of that case were these:
Pending a suit an application was made for
,directing a party to produce (1) [1917] L.R. 44 I.A. 218, 228.
215 certain books and that was ordered by the
District Judge.
Thereafter an application was made to the
Chief Court to revise the order of the District Judge. Pending the revision the
plaintiff and the 2nd defendant died. Within the prescribed time their legal
representatives were brought on record in the revision. Subsequently that
revision was dismissed as withdrawn. The legal representatives of the plaintiff
and the 2nd defendant were not brought on record in the suit within the time
prescribed. The question was whether the suit had abated. The Judicial
Committee held that the suit did not abate and the following reasons were given
for that view:
"The plaintiff as representative of the
original plaintiff, and the defendant's representatives of Joti Lal, had been
introduced in the Chief Court. No doubt that was only done in the course of an
interlocutory application as to the production of books. But the introduction
of a plaintiff or a defendant for one stage of a suit is an introduction for
all stages, and the prayer, which seems to have been made ab majorem cautelam,
by the plaintiff, in his application to the District Judge Prenter under s.
365, was superfluous and of no effect. Coates, the judgment debtor, was only
formally called, and the nonpresence of his representatives would afford no
ground for the abatement of the suit." This judgment is an authority for
the position that if the legal representatives of a deceased plaintiff or
defendant are brought on record in an appeal or revision from an order made in
the suit. that would enure for all subsequent stages of the suit. The same
principle was sought to be extended in a Madras decision to a cross appeal: see
Shankaranaraina Saralaya v, Laxmi Hengsu(1). There, two appeals were
independently filed against the decree in a suit--one was flied by the
plaintiff and the other by the defendant. The plaintiff-appellant died and in
the appeal filed by him his legal representatives were brought on record in
time, whereas it was not so done in the appeal filed by the
defendant-respondent. It was argued that by reason of the fact that the legal
representatives of the plaintiff were brought on record in the appeal filed by
him there was no abatement in the appeal filed by the defendant. The Court
negatived the contention and when the aforesaid decision of the Privy Council
was cited, it was distinguished on the following grounds:
"Their Lordships have held that the
introduction of a plaintiff or a defendant for one stage of a suit is an
introduction for all stages. When the subject-matter of the interlocutory
application was pending in the appellate Court it was deemed to be one stage of
the suit and therefore there was no need to put in a fresh application at a
further stage of the suit when it came on for trial before the first Court. Can
it be said in the present case that (t) A.I.R. 1931 Mad. 277, 278.
216 what was done in one appeal could enure
for the benefit of another appeal unless the latter appeal can be deemed to be
a continuation or a further stage of the appeal in which the legal
representatives were brought on record? I am constrained to say that it is
difficult to extend the principle of the decision of the Privy Council to the
facts of this case." This decision accepts the principle laid down by the
Privy Council but distinguishes the case before it on the ground that the
interlocutory appeal is not a continuation or a further stage of the appeal in
which the legal representatives were brought on record. Many other decisions
were cited at the Bar, but they only support the position that in bringing the
legal representatives of a deceased party on record in one appeal will not
enure for the benefit of a cross appeal.
Let us now consider the question on
principle. A combined reading of Order XXII, rr. 3, 4 and 11, of the Code of
Civil Procedure shows that the doctrine of abatement applies equally to a suit
as well as to an appeal. In the application of the said rr. 3 and 4 to an
appeal, instead of "plaintiff" and "defendant",
"appellant" and "respondent" have to be read in those
rules. Prima facie. therefore, if a respondent dies and his legal representatives
are not brought on record within the prescribed time, the appeal abates as
against the respondent under r.4, read with r.11, of O.XXII of the Code of
Civil Procedure. But there is another principle recognized by the Judicial
Committee in the aforesaid decision which softens the rigour of this rule. The
said principle is that if the legal representatives are brought on record
within the prescribed time at one stage of the suit, it will enure for the
benefit of all the subsequent stages of the suit. The application of this
principle to different situations will help to answer the problem presented in
the present case. (1) A flied a suit against B for the recovery of possession
and mesne profits. After the issues were framed. B died. At the stage of an
interlocutory application for production of documents, the legal
representatives of B were brought on record within the time prescribed. The
order bringing them on record would enure for the benefit of the entire suit.
(2) The suit was decreed and an appeal was filed in the High Court and was
pending therein. The defendant died and his legal representatives were brought
on record. The suit was subsequently remanded to the trial Court. The order
bringing the legal representatives on record in the appeal would enure for the
further stages of the suit. (3) An appeal was flied against an interlocutory
order made in a suit. Pending the appeal the defendant died and his legal
representatives were brought on record. The appeal was dismissed. The appeal
being a continuation or a stage of the suit. the order bringing the legal
representatives on record would enure for the subsequent stages of the suit.
This would be so whether in the appeal the trial Court's 217 order was
confirmed, modified or reversed. In the above 3 illustrations one fact is
common, namely, the order bringing on record the legal representatives was made
at one stage of the suit. be it in the suit or in an appeal against the
interlocutory order or final order made in the suit, for an appeal is only a
continuation of the suit. Whether the appellate order confirms that of the
first Court, modifies or reverses it replaces or substitutes the order appealed
against. It takes its place in the suit and becomes a part of it. It is as it
were the suit was brought to the appellate Court at one stage anti the orders
made therein were made in the suit itself. Therefore, that order inures for the
subsequent stages of the suit.
But the same legal position cannot be invoked
in the reverse or converse situation. A suit is not a continuation of an
appeal. An order made in a suit subsequent to the filing of an appeal at an
earlier stage will move forward with the subsequent stages of the suit or
appeals taken there from; but it cannot be projected backwards into the appeal
that has already been filed. It cannot possibly become an order in the appeal.
Therefore, the order bringing the legal representatives of the 7th respondent
on record in the final decree proceedings cannot enure for the benefit of the
appeal filed against the preliminary decree. We, therefore, hold that the
appeal abated so far as the 7th respondent was concerned.
In the result, the petitions are dismissed.
Petitions dismissed.
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