Jayarama Reddy & ANR Vs. Revenue
Divisional Officer & Land Acquisition Officer, Kurno [1979] INSC 74 (23
March 1979)
SHINGAL, P.N.
SHINGAL, P.N.
DESAI, D.A.
CITATION: 1979 AIR 1393 1979 SCR (3) 599 1979
SCC (3) 578
ACT:
Code of Civil Procedure, 1908-Order XXII r.
4-Scope of- Cross appeals-Legal representatives of deceased appellant brought
on record-Appellant in cross-appeal failed to bring them on record of cross
appeal-Cross appeal-If abates-No objection raised before the High Court-If
could be raised in further appeal.
HEADNOTE:
Order XXII Rule 4 (1) CPC provides that where
one of two or more defendants dies and the right to sue does not survive
against the surviving defendant or defendants alone, 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 the Rule provides that where, within the time limited by law, no
application is made under sub-rule (1) the suit shall abate as against the
deceased defendant.
The land in dispute, which belonged to three
persons, was acquired by the State Government for a public purpose and the
market value was fixed at Rs. 2/- per square yard.
On appeal by the claimants, it was raised to
Rs. 12/-per square yard. Against the order of Subordinate Judge, both the State
and the claimants filed appeals before the High Court.
While the appeals were pending before the
High Court, one of the claimants died. The legal representatives of the
deceased claimant were brought on record in the claimant's appeal, but the
Government took no steps to bring the legal representatives of the deceased
claimant on record in the appeal filed by it.
Dismissing the claimant's appeal and allowing
the Government appeal the High Court reduced the price of the acquired land to
Rs. 4/- per square yard.
In appeal before this Court the claimants
contended that since the legal representatives of the deceased claimant were
not brought on record within the period of limitation, the Government appeal
abated and stood dismissed.
Dismissing the appeal,
HELD: (per Shinghal, J.) 1. It is not correct
to say that the Government appeal stood dismissed against the surviving
respondents because the Government failed to bring the legal representatives of
the deceased claimant on record within the specified time limit. The question
whether the right to sue survived against the surviving respondents alone, was
a matter for the appellate court to examine and decide after hearing the parties
with regard to the question of jointness or otherwise of the decree and the
further question whether there was any possibility of two contradictory
decrees. [605 F-G] 600
2. There is no justification for the argument
that the High Court's decree was a nullity because it was passed against a dead
person. A decree against a dead person is a nullity because it cannot be
allowed to operate against his legal representatives when they were never
brought on the record to defend the case. It is held a nullity because it
cannot be executed against his legal representatives who had not had the full
opportunity of being heard in respect of it. If the respondent to an appeal
dies and the appellate court loses sight of that development or ignores it, it
will still be permissible for the court hearing the appeal to bring his legal
representatives on the record on an application to that effect and to consider
any application for condonation of delay. It is permissible for the appellate
court to remand the case for disposal according to law to the court in which it
was pending at the time of the death of the deceased party. [606 B-D]
3. While the law treats such decree as a
nullity qua the legal representative of the deceased defendant or respondent,
there is nothing to prevent him from deciding that he would not treat the
decree as a nullity but would abide by it as it stood or as it may be modified
on appeal.
If a legal representative adopts that
alternative, it cannot be said that his option to be governed by the decree is
against the law or any concept of public policy or public morality. It is a
matter entirely at the discretion of the legal representative to decide whether
he would raise the question that the decree had become a nullity, at the
appropriate time, or to abandon that obviously technical objection and fight
the appeal on the merits. [606 F-H]
4. Nor can it be said that the appellate
court is denuded of its jurisdiction to hear an appeal in which one of the
respondents had died and the right to sue did not survive against the surviving
defendant or defendants alone merely because no application had been made to
bring his legal representative on the record when no objection to the effect
was raised by any one of them. [607 B]
5. At the same time, an inference as to the
abandonment of such plea of abatement cannot be drawn unless there is clear,
sufficient and satisfactory evidence to prove that the legal representative of
the deceased respondent was aware of it and abandoned it wilfully. [607 D] In
the instant case, on the death of one of the three claimants the other two
surviving claimants brought the legal representatives of the deceased on the
record. They knew that the legal representatives of the deceased claimant had
not been brought on the record of the Government appeal within the time
prescribed by law and that, therefore, the appeal stood abated. Even so, they
made no application to the High Court seeking dismissal of the Government
appeal.
This position continued for as long as five
years. Two courses were open to the claimants : (i) to move the High Court for
the dismissal of the Government appeal, or (ii) to allow that appeal to be
heard and decided on merits. The claimants chose the second course. When the
appeals came up for hearing before the High Court, the appeal was argued on
merits without raising an objection on this point. After the High Court had
pronounced its judgment, the claimants had asked for a certificate for leave to
appeal without asking for a review of its judgment on the ground that the legal
representatives were not brought on the record of the Government appeal. So a
point of defence which was wilfully and deliberately abandoned by a party in a
civil 601 case at a crucial stage, cannot be allowed to be taken up later at the
will of the party which had abandoned the point or as a last resort, or as an afterthought.
Gaekwar Baroda State Railway v. Hafiz
Habib-ul-Haq & Ors., 65 Indian Appeals 182: Thakore Saheb Khanji Kashari
Khanji v. Gulam Rosul Chandbhai, AIR 1955 Bom.
449; Punjab State v. Sardar Atma Singh, AIR
1963 Pub. 113, State of Rajasthan & Ors. v. Raghuraj Singh, AIR 1968 Raj.
14; held inapplicable.
6. The High Court had rightly taken into
consideration all factors necessary for coming to the right conclusion for fixing
the rate of compensation payable to the climants namely that a few months
before the date of acquisition the climants themselves purchased the land at
Rs. 2/- per square yard, that they did not make any improvements after its
purehase and that the previous owners had not sold the land for any compelling
reason. [611 B-D] Desai, J. (concurring) 1. The basic principle underlying o.
XXII rr. 3 and 4 CPC is a facet of natural justice. It is a fundamental rule of
natural justice that a man has a right to be heard where a decision affecting
him or his interest is to be recorded. As a corollary to the rule of audi
altrem partem it is provided in the Code of Civil Procedure that where a party
to a proceeding dies pending the proceeding and the cause of action survives,
the legal representatives of the deceased party should be brought on record,
which means. that such legal representative must be afforded an opportunity of
being heard before any liability is fastened on them. Although the legal
representatives of a deceased plaintiff or defendant must be substituted on the
pain of the action abating, with utmost diligence, from a multitude someone may
escape notice and the consequent hardship in abatement of action led this Court
to assert the principle that where some legal representatives were brought on
record permitting an inference that the estate was adequately represented, the
action would not abate though it would be the duty of the other side to bring
on record even at a later date those legal representatives who were overlooked
or missed. [614 E- H]
2. The principle deducible from decisions of
this Court is that if the deceased had, as a party, a right to put forth his
case, those likely to be affected by the decision, on death of the deceased,
had the same opportunity to put forth their case and even if from a large
number having identical interest some are not brought on record those who are
brought on record would adequately take care of their interest and the cause,
in the absence of some such, would not abate. [615 F-G] Daya Ram & Ors. v.
Shyam Sundari, [1965] 1 SCR 231; N. K. Mohammad Sulaiman v. N. C. Mohammad
Ismail & Ors, [1966] 1 SCR 937; Harihar Prasad Singh & Ors. v. Balmiki
Prasad Singh & Ors., [1975] 2 SCR 932; referred to.
3. Yet another principle is that if the legal
representatives of the deceased party were before the court in the same action
even if in another capacity, failure to bring them on record in a specific
legal position would not result in abatement of the action. [615 H] Mahabir
Prasad v. Jage Ram & Ors. [1971] 3 SCR 301;
referred to.
4. Where a. decree partly satisfies each of
the two parties in a suit, both parties may prefer an appeal challenging only
that part of the decree by which each party is dissatisfied. But where one of
the two parties appeals and a noticd of appeal is served on the other, the
respondents receiving the notice may prefer cross-objections under O. XLI, r.
22 CPC. In such a case, though the respondent may not have appealed from any
part of the decree, he may take cross objections to the decree which he could
have taken by way of appeal. The parameters of cross- objections are limited to
the contention which could properly be taken in an appeal against a decree or
part of a decree. [617 B-D]
5. When legal representatives of a deceased
appellant are substituted and those very legal representatives as legal
representatives of the same person occupying the position of respondent in
cross-appeal are not substituted, its outcome would be that they were on record
in the connected proceeding before the same court hearing both the matters, in
one capacity though they were lot described as such in their capacity, namely,
as legal representatives of the deceased respondent. To ignore this obvious
position would be giving undue importance to form rather than substance. The
anxiety of the court should be whether those likely to be affected by the
decision in the proceeding were before the court having full opportunity to
canvass their case. Once that is satisfied it can be said that the provisions
contained in rr. 3 and 4 of O.XXII are satisfied in a given case. To take
another view would be to give an opportunity to the legal representatives of a
deceased party in an appeal having had the fullest opportunity to canvass their
case through the advocate of their choice appearing in cross-appeals for them
and having canvassed their case and lost, to turn round and contend that they
were not before the court as legal representatives of the same person in his
other capacity, namely, respondent in the cross-appeal. In other words, those
legal representatives were before the court all throughout the hearing of the
appeal as parties to the appeal and canvassed their case and were heard through
their advocates and they had the full opportunity to put forth whatever
contentions were open to them in the appeals and to contest the contentions
advanced against them by the opposite side and yet if the other view is taken
that as they were not formally impleaded as legal representatives of the
deceased respondent in the cross-appeal that appeal has abated, it would be
wholly unjust. It is very difficult to distinguish on principle the approach of
the court in appeals and cross-objections and in cross-appeals in this behalf.
The cases which have taken the view that in cross- appeals the position is
different from the one in appeal and cross-objections do not proceed on any
discernible legal principle. Nor can they be explained by any demonstrable
legal principle but in fact they run counter to the established legal
principle. [623 G-H; 624 A-C] Brij Inder Singh v. Lala Kanshi Ram & Ors.
AIR 1917 PC 156; Rangubai Kom Shanker Jagtap v. Sunderabai Bhratar Sakharam
Jedhe & Ors., [1965] 3 SCR 211 at 216- 217; applied.
Sankaranaraina Saralya v. Laxmi Hengsu &
Ors., AIR 1931 Mad. 277; State of Rajasthan & Ors, v. Raghuraj Singh, AIR
1968 Raj. 14; not approved.
In the instant case the legal representatives
of the deceased claimant were brought on the record of the claimant's appeal.
Both the appeals were heard together.
Their counsel argued their case in both
appeals. Therefore, they were 603 before the court all through. The fact that
they had not been described as legal representatives of the deceased in the
Government appeal could not make any difference and their appeal has not
abated.
On the question of compensation no case had
been made out for interfering with the view of the High Court.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2314 of 1969.
From the Judgment and Decree dated 4-2-1969
of the Andhra Pradesh High Court in Appeal No. 180/64.
A. K. Sen and A. Subba Rao for the Appellant.
T. V. S. N. Chari for the Respondent.
The following Judgments were delivered:
SHINGHAL, J.-This appeal is by a certificate
of the High Court of Andhra Pradesh on the valuation of the subject matter and
is directed against its judgment dated February 4, 1969.
The State Government acquired 2 acres and 79
cents of the land of the appellants in Kurnool town, for locating a bus depot
of the Andhra Pradesh State Transport Corporation.
It was arable land within the municipal
limits of the town, with two trees and an old compound wall. Its possession was
taken by the State Government on May 25, 1962. The market value of the land was
fixed at Rs. 27,042.53 at the rate of Rs. 2/- per square yard. The compound
wall and the trees were valued at Rs. 930/- and after allowing a solatium of 15
per cent and interest at 4 per cent per annum, the total compensation was
worked out to Rs. 33,069.12. N. Jayarama Reddy, Y. Prabhakar Reddy and C.
Manikya Reddy, who were the three owners of the land, accepted that
compensation under protest and applied for a reference under section 18 of the
Land Acquisition Act. After recording evidence and inspecting the site, the Subordinate
Judge held that the claimants were entitled to payment at the rate of Rs. 12/-
per square yard for the value of land, a solatium of 15 per cent and interest
at 4 per cent. Both parties felt aggrieved against that order dated July 30,
1963. While appeal No. AS 180 of 1964, hereinafter referred to as the
government appeal, was filed by the Revenue Divisional Officer and the Land
Acquisition Officer, Kurnool, appeal No. AS 296 of 1964, hereinafter referred
to as the claimants' appeal, was filed by the claimants. There were thus
cross-appeals in the High Court against a common order of the Subordinate
Judge.
The memorandum of the government appeal was
filed on December 7, 1963. I do not 604 have the date of the claimants' appeal
on the record, but it is not disputed that it was filed before April 3, 1964.
While the two appeals were pending in the
High Court, Y. Prabhakar Reddy, one of the three claimants of the compensation
for the acquired land, died on April 3, 1964.
An application was made in the claimants'
appeal to bring his legal representatives on the record, and the High Court
passed an order on July 14, 1964 (in C.M.P. No. 7284 of 1964) bringing
appellants 4 to 9 on record as the legal representatives of Y. Prabhakar Reddy.
It is admitted before me that was done before the abatement of that appeal. It
seems that no application was made in the government appeal to bring the legal
representatives of the deceased respondent Y. Prabhakar Reddy on the record of
that appeal.
Both the appeals were, however, taken up for
hearing together and were disposed of by a common judgment of the High Court
dated February 4, 1969. The High Court dismissed the claimants' appeal, but
allowed the government appeal and reduced the price of the acquired land from Rs.
12/- to Rs.
4/- per square yard "with the usual
solatium and interest at 4 per cent as allowed by the lower court." While
the government felt satisfied with that judgment, the claimants applied for a
certificate which was granted on the ground that the value of the subject
matter of the suit in the court of first instance was upwards of Rs. 20,000/-
and the value of the subject matter in dispute on appeal to this Court was also
upwards of that amount and the decree appealed from did not affirm the decision
of the lower court. On the strength of that certificate the appellants have
come up to this Court in appeal.
It has been argued by Mr. Sen on behalf of
the appellants that as Y. Prabhakar Reddy, respondent No. 2 in the government
appeal died on April 3, 1964, and his legal representatives were not brought on
the record within the period of 90 days provided by law, that appeal abated
thereafter and stood dismissed automatically and could not be resurrected and
heard by the High Court as a cross-appeal to the claimants' appeal. The learned
counsel has placed reliance on the decisions of this Court in The State of
Punjab v. Nathu Ram,(1) Rameshwar Prasad and others v. M/s Shyam Beharilal
Jagannath and others,(2) Ramagya Prasad Gupta and others v. Murli Prasad(3) and
Harihar Prasad Singh and others v. Balmiki Prasad Singh and others.(4) to
support his argument. In particular, he has placed 605 reliance on Nathu Ram's
case(1) to fortify his argument that the specification of the shares or of the
interest of the deceased Y. Prabhakar Reddy did not affect the nature of the
decree and the capacity of the joint decree holders to execute the entire
decree or to resist the attempt of the other party to interfere with the joint
right decreed in their favour. In particular, he has relied on that portion of
that decision where it has been stated that as the subject matter for which the
compensation is to be calculated in such cases is one and the same, there
cannot be different assessments of the amounts of compensation for the same
parcel of land. So, as the appeal before the High Court was directed against
the joint decree and the appellate court could not take a decision on the basis
of the separate shares of the claimants, it has been argued that the whole of
the government appeal should have been dismissed because of its abatement
against the deceased respondent.
Now what Order XXII r. 4 (1) C.P.C. provides
is that where one of two or more defendants dies and the right to sue does not
survive against the surviving defendant or defendants alone, 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) provides further that where within the time limited by law no application
is made under sub-rule (1), "the suit shall abate as against the deceased
defendant." So as Y. Prabhakar Reddy, respondent No. 2 in the government
appeal, died on April 3, 1964, and an application was not made to bring his
legal representatives on the record within the specified time limit, the appeal
automatically abated as against the deceased respondent, and it is not correct
to say that the appeal automatically stood dismissed against the surviving
respondents because of that default. The question whether the "right to
sue" survived against the surviving respondents alone, was a matter for
the appellate court to examine and decide after hearing the parties, with due
regard to the question of jointness or otherwise of the decree and the further
question whether there was any possibility of two contradictory decrees etc.
As that was not done by the High Court where
the government appeal was pending, there is no justification for the argument
that the appeal automatically stood dismissed after the expiry of the period of
90 days from the death of respondent Y. Prabhakar Reddy on April 3, 1964
because of the abatement of the appeal against him.
But even if it were assumed that the
government appeal deserved to be dismissed as a whole because of its abatement
against the 606 deceased respondent, there is no justification for Mr. Sen's
further argument that the High Court's decree dated February 4, 1969, was a
nullity merely because it was passed against a dead person, namely, Y. Prabhakar
Reddy. It has to be appreciated that a decree against a dead person is not
necessarily a nullity for all purposes. It will be sufficient to say that such
a decree has been held to be a nullity because it cannot be executed against
his legal representative for the simple reason that he did not have a full
opportunity of being heard in respect of it, and the legal representative cannot
be condemned unheard. So if a respondent to an appeal dies, and the appeal
abates because of the failure to bring his legal representative on the record
within the time limited by law, and the appellate court loses sight of that
development or ignores it, it will still be permissible for the court hearing
the appeal to bring his legal representative on the record on an application to
that effect and to examine any application that may be made for condonation of
the delay. It is also permissible, and is in fact the common practice, to
remand the case for disposal according to law to the court in which it was
pending at the time of the death of the deceased party. The law has therefore
provided, and accepted, modes for reopening and hearing the appeal in such
cases.
The basic fact remains that a decree against
a dead person is treated as a nullity because it cannot be allowed to operate
against his legal representative when he was never brought on the record to
defend the case. Any other view would not be possible or permissible for it
would fasten on him a liability for which he did not have any hearing. So while
the law treat such a decree as a nullity qua the legal representative of the
deceased defendant or respondent, there is nothing to prevent him from deciding
that he will not treat the decree as a nullity, but will abide by it as it
stands, or as it may be modilied thereafter on appeal. If a legal
representative adopts that alternative or course of action, it cannot possibly
be said that his option to be governed by the decree is against the law or any
concept of public policy or purpose, or the public morality. It is thus a
matter entirely at the discretion of the legal representative of a deceased
respondent against whom a decree has been passed after his death to decide
whether he will raise the question that the decree has become a nullity, at
appropriate time, namely, during the corse of the hearing of any appeal may be
filed by the other party, or to abandon that obvious technical objection and
fight the appeal on the merits. He may do so, either because of his faith in
the strength of his case on the merits, or because of incorrect legal advice,
or for the reason that he may not like to rely on a mere technical plea, or
because in the case of 607 cross-appeals, he may have the impression that
bringing the legal representative of the deceased respondent on record in an
appeal by a coappellant will enure for the benefit of or be sufficient for
purposes of the cross-appeal. An abandonment of a technical plea of abatement
and the consequential dismissal of the appeal, is therefore a matter at the
discretion of the legal representative of the deceased respondent and there is
no justification for the argument to the contrary. It is equally futile to
argue that an appellate court is denuded of its jurisdiction to hear an appeal
in which one of the respondents has died and the right to sue does not survive
against the surviving defendant or defendants alone merely because no
application has been made to bring his legal representative on the record when
no objection to that effect is raised by any one.
But, as is equally obvious, it will not be
fair to draw an inference as to the abandonment of such a plea of abatement
unless there is clear, sufficient and satisfactory evidence to prove that the
legal representative of the deceased respondent was aware of it and abandoned
it wilfully. The following facts have been well established in this respect in
the present case.
It will be recalled that the Subordinate
Judge made his order in the reference under section 18 of the Land Acquisition
Act on July 30, 1963, and the memorandum of the government appeal was filed in
the High Court on December 7, 1963. The claimants filed their cross-appeal No.
AS 296 of 1964 soon after and, at any rate, before April 3, 1964. It will also
be re-called that Y. Prabhakar Reddy died on April 3, 1964. While he was
respondent No. 2 in the government appeal, he was a co-appellant in the
claimants' appeal. As has been stated, the claimants brought Y. Prabhakar
Reddy's legal representatives on the record in their appeal under an order of
the High Court dated July 14, 1964, and they were arrayed as appellants Nos. 4
to 9. It is admitted that that appeal therefore never abated and the array of
the parties was full and complete. As has been pointed out, the legal
representatives of Y. Prabhakar Reddy were not brought on record in the
government appeal. It cannot be denied, however, that they knew of Y. Prabhakar
Reddy's death on April 3, 1964, for he was their ancestor. They also knew that
they had been brought on record as his legal representatives in the claimants'
appeal because of the High Court's specific order to that effect dated July 14,
1964 in C.M.P. No. 7282 of 1964 where they were represented by counsel. They
thus knew that Y. Prabhakar Reddy's legal representatives were not brought on
record in the government appeal, and that it stood abated against them because
of the expiry of the time limited by law 608 in that respect. Even so, they did
not make an application to the High Court for the dismissal of the appeal on
the ground that it could not survive against the surviving respondents because
of that basie defect, in the facts and circumstances of that case. That in fact
continued to be the position for a long period of some five years. It is not
disputed that the appeals came up for hearing in the High Court on or about
February 4, 1969, but, even then, no- objection was taken to the hearing of the
government appeal in spite of the fatal defect in its consitution. On the other
hand, when the two appeals were taken up for hearing, the High Court heard, without
any objection, not only the counsel for the appellants in the government
appeal, but also C. Padmanabha Reddy, who was counsel for the respondents in
that appeal and for the reconstituted array of appellants in the claimants'
appeal. The legal representatives of Y. Prabhakar Reddy and their counsel were
thus aware of the fact that the government appeal had abated against respondent
Y. Prabhakar Reddy, and it will not be unfair to assume that they, or, at any
rate, their counsel knew that it was open for them to contend that the appeal
was liable to dismissal for that reason. Two courses of action were therefore
open to them: (i) to move the High Court for the dismissal of the government
appeal, or (ii) to allow that appeal to be heard and decided on the merits and
to abide by any decree which the High Court might pass in the two appeals. The
legal representatives and their counsel did not choose to adopt the first
course of action, and it will be fair and reasonable to hold that they wilfully
chose the second course of action. That was why their counsel C. Padmanabha
Reddy, who was counsel for all the respondents in the government appeal, and
for all the appellants in the claimants' appeal, argued both the appeals on the
merits.
The High Court heard and decid the
cross-appeals by its impugned judgment dated February 4, 1969, and it will be a
proper conclusion for me to reach that the legal representatives of Y.
Prabhakar Reddy wilfully abandoned any plea that might have been available to
them on the basis of the abatement of the government appeal against the
deceased respondent.
It was only after the judgment of the High
Court went against them, that the legal representatives of Y. Prabhakar Reddy
decided to take up the question of abatement, for the first time, in the
petition which they and the other claimants' filed under section 104-110 and
order 45 rules 2 and 3 C.P.C. It is significant that they did not even then ask
the High Court to review its judgment and grant them relief on the ground that
Y. Prabhakar Reddy had died and the decree against him was a nullity in so far
as they were concerned. The High Court was 609 simply asked to allow the
application for the certification of the appeal on the ground that the value of
the subject matter was upwards of Rs. 20,000/- and it made an order to that
effect.
In all these facts and circumstances, I have
no doubt that any plea that may have been available to the legal
representatives of the deceased Y. Prabhakar Reddy in the government appeal
because of its abatement, was wilfully abandoned by them. Any other view of the
matter will be unfair to the present respondents, because if any such objection
had been taken in the High Court, they would have made an application for the
setting aside of the abatement and condoning the delay, for whatever it was
worth. It has to be appreciated that a point of defence which has been wilfully
or deliberately abandoned by a party in a civil case, at a crucial stage when
it was most relevant or material, cannot be allowed to be taken up later, at
the sweet will of the party which had abandoned the point, or as a last resort,
or as an afterthought. In fact in a case where a point has been wilfully
abandoned by a party, even if, in a given case, such a conclusion is arrived at
on the basis of his conduct, it will not be permissible to allow that party to
revoke the abandonment if that will be disadvantageous to the other party.
Mr. Sen has however made a reference to
Gaekwar Baroda State Railway v. Hafiz Habib-ul-haq and others(1) and Thakore
Saheb Khanji Kashari Khanji v. Gulam Rasul Chandbhai (2) for the purpose of
showing that the government appeal was not at all maintainable in the High
Court because of its abatement against respondent Y. Prabhakar Reddy as that
was a matter relating to the jurisdiction of the High Court which could not
have been abandoned. The provisions of section 86 C.P.C. came up for
consideration in both those cases and it was held that as the section was based
upon public policy or purpose, it was not open to a ruling chief to waive its
provisions. Those were therefore different observations which have no bearing
on the present controversy for, as has been stated, the decision of the legal
representative of a deceased respondent to be bound by a decree in spite of its
abatement does not involve any question of public policy.
Mr. Sen's reference to Maharana Shri
Davlatinghji Thjakore Saheb of Limit v. Khachar Hamir Mon,(3) Town Municipal
Council, Athani 610 v. Presiding Officer, Labour Court, Hubli and others, (1)
Simpson and another v. Crowle and others(2) Chief Justice of Andhra Pradesh and
another v. L. V. A. Dikshitula and others(3) and P. Dasa Muni Reddy v. P. Appa
Rao(4) is equally futile because they were cases of inherent lack of
jurisdiction in the court concerned or raised the question of the bar of
limitation.
Mr. Sen has placed reliance on Punjab State
v. Sardar Atma Singh(5) and State of Rajasthan and others v. Raghuraj Singh(6)
to show that where an application is not made to bring the legal representative
of the deceased respondent on the record of a cross-appeal, that appeal will
abate, and it will not be permissible for the appellant to claim the benefit of
the fact that the legal representative of the deceased respondent had been
brought on the record in the cross-appeal filed by him. I have gone through the
cases, but they are clearly distinguishable. The respondent in both cases died
during the pendency of the firs appeal, and an objection as to abatement was
taken during the course of the hearing, so that there was no question of
abandoning the objection in either of these cases and it was permissible to
apply to the court for the usual consequences which follow for non-compliance
with the provisions of order XXII rules 3 and 4 C.P.C. Those decisions cannot
therefore be of any help in a case like this.
It would thus follow that as the plea of
abatement of the government appeal against respondent Y. Prabhakar Reddy and
its dismissals a whole for that reason, was wilfully abandoned by the present
respondents in the High Court, it will not be fair and reasonable to allow them
to take it up the facts and circumstances of this case merely because the
decision of the High Court has gone against them.
That leaves for consideration the question
whether the finding of fact of the High Court that the present appellants were
entitled to compensation at Rs. 4/- per square yard suffers from any such error
as to require interference by this court. Mr. Sen has argued that the High
Court went wrong in interfering with the finding of the Subordinate Judge and
in excluding the sale deeds Exs. A 1 and A 2 altogether from consideration when
they were important and were by themselves sufficient to uphold the finding of
the Subordinate Judge that the market value of the land was Rs. 12/- per square
yard.
611 I find from the impugned judgment that
the High Court first took into consideration all those factors which were in
favour of the claimants, namely, the fact that the land was situated within the
municipal limits of Kurnool town, it was within easy reach of the government
hospitals, the railway station, the Medical College and the State Bank etc., it
was suitable as a building site etc. The High Court also took due notice of the
fact that although Kurnool was not made the capital of Andhra Pradesh, it was a
growing town and had an importance of its own. It then examined those facts
which persuaded it to reduce the market value.
In doing so, it took note of the fact that
the land under acquisition had been bought by the Claimants themselves for Rs.
26,000/- on October 30, 1961, just eight months before the issue of the
notification for its acquisition. That rate worked out to Rs. 2/- per square
yard. Then the High Court took into consideration the other facts that the
claimants did not effect any improvement in the land after its purchase, it was
not their case that the previous owner had sold it for any compelling reason,
the claimants were not even responsible for preparing the lay out plan for the
locality (which had been accepted by the municipality even before they had
purchased the land) and that they merely obtained the sanction of the Town
Planning department to the lay out which had already been sanctioned. The High
Court carefully examined the various sale agreements Exs. A3, A5, A7, A10, A12
and A14, and rejected them on the ground that they did not appear to be genuine
and had mostly been executed on the same date. That left the two registered
sale deeds Exs. A1 and A2 for consideration on which Mr. Sen has placed
considerable reliance. The High Court noticed that they were for the sale of
very small portions of land, namely, 3 cents and 5 cents, and did not think it
proper to make them the basis for determining the value of a far larger piece
of land. It cannot therefore be said that the High Court ignored or misread any
important piece for evidence in arriving at its finding. As has been stated,
the appellants bought the land for Rs. 26,000/-, which worked out to Rs. 2/-
per square yard, and the High Court doubled that rate, and raised it to Rs. 4/-
per square yard even though the acquisition took place within a matter of the
next eight months and the appellants did nothing to improve its value. To say
the least, such a finding cannot be said to have been vitiated for any reason
whatsoever so as to require reconsideration here.
As I find no merit in the appeal, it is
hereby dismissed with no order as to costs.
DESAI, J.-I have carefully gone through the
judgment prepared by my learned brother Shinghal, J. and I am in full agreement
with him that the appeal be dismissed. This separate opinion becomes necessary
be- 612 cause in my opinion in the facts and circumstances of this case the
Government appeal had not abated at all.
All the relevant facts have been extensively
set out by my learned brother and it is not necessary to repeat them here. Even
the nomenclature in respect of the two appeals as given by him may be adopted
for facility of appreciating the point under discussion After the award by the Subordinate
Judge, two appeals came to be preferred, one by the Revenue Divisional officer
styled as 'Government appeal', and another by the claimants styled as
'claimants appeal'. Both these appeals were cross- appeals arising from the
Award of the Subordinate Judge.
During the pendency of the appeals in the
High Court, Y. Prabhakar Reddy, one of the three claimants, being an appellant
in the claimants' appeal and respondent in Government appeal, died on April 3,
1964 and upon an application made to the Court in the claimants' appeal his
legal representatives appellants 4-9 were brought on record.
Admittedly, the legal representatives of
deceased Y. Prabhakar Reddy one of the respondents in Government appeal were
not brought on record till both the appeals were disposed of by a common
judgment rendered on February 4,1969. The High Court by its judgment dismissed
the claimants' appeal and partly allowed the Government appeal reducing the
compensation payable in respect of the acquired land from Rs. 12/- to Rs. 4/-
per sq. yd. Original two claimants and heirs of deceased claimant Y. Prabhakar
Reddy preferred the present appeal to this Court by certificate granted by the
High Court under Article 133 of the Constitution.
Mr. A. K. Sen contended that as heirs of one
of the claimants Y. Prabhakar Reddy, respondent in Government appeal, were not
brought on record within the prescribed period of limitation after his death
pending the appeal, not only the Government appeal abated against Y. Prabhakar
Reddy but in view of the decision of this Court in State of Punjab v. Nathu
Ram,(1) the appeal abated as a whole and, therefore, the judgment of the High
Court partly allowing the Government appeal and reducing the compensation from
Rs. 12/- to Rs. 4/- per sq. yd. of the acquired land must be set aside on this
short ground alone.
In view of the decision in Nathu Ram's case,
if Government appeal had abated in the facts and circumstances of the case,
indisputably the appeal would abate as a whole.
The substance of the matter is whether in the
facts and circumstances of this case and keeping in view the relevant
provisions of law the Government appeal had at all abated.
There were cross appeals arising from the
same Award before the High Court. The record does not show that any order was
made for 613 consolidating these appeals as is usually done when both the
parties to a decree prefer appeals and which are styled as cross-appeals. Both
the parties to the original proceeding adopt rival positions in cross appeals.
The claimants in their appeal moved the High Court to enhance the compensation
from Rs. 12/- per sq. yd. awarded by the Subordinate Judge to a higher amount
as claimed by them. The Government in its appeal against the same Award moved
the High Court to reduce the compensation from Rs. 12/- to Rs. 2/- per sq. yd.
The contest between the parties would be, what in the circumstances of the case
should be adequate compensation being the market value of the land acquired by
the Government on the relevant date (see Nathuram's case).
Undoubtedly, one of the original claimants Y.
Prabhakar Reddy being one of the appellants in the claimants' appeal died and
specifically his legal representatives were brought on record within the
prescribed period of limitation and that was done much prior to the date of
hearing of the appeals by the High Court. As is notorious, the inadvertence, if
not downright indifference, of those incharge of the Government appeal is
demonstrably established because the counsel incharge of the Government appeal
must have received the notice moved on behalf of the appellants-claimants
seeking to bring the legal representatives of deceased Y. Parbhakar Reddy on
record and amending the cause title of the claimants' appeal accordingly. This
was sufficient notice to the counsel incharge of the Government appeal that the
same gentleman was one of the respondents in Government appeal and his death
having been notified, as a necessary corollary his heirs will have to be
brought on record in Government appeal. Nothing more was required to be done by
the counsel incharge of Government appeal except to bodily adopt those who
applied to come on record in place of deceased Y. Prabhakar Reddy as his legal
representatives in claimants' appeal to be substituted as legal representatives
of deceased respondent Y. Prabhakar Reddy in Government appeal.
This was not done. It may also be mentioned
that both the appeals were heard together and were disposed of by a common
judgment. As has been pointed out by Shinghal, J., no contention was taken on
behalf of the respondents in Government appeal that on account of the failure
of Government to bring the heirs of deceased Y. Prabhakar Reddy on record
within the time prescribed, the appeal has abated but on the contrary Government
appeal was allowed to be proceeded in the presence of all parties including
legal representatives of Y. Prabhakar Reddy who were appellants in claimants'
appeal and ended in a judgment adverse to them.
What is the consequence of failure to raise
this contention has been examined by my learned brother in detail and I am in
agreement with his conclusion.
614 Now, Order 22, Rule 4 read with Order 22,
Rule 11 of the Code of Civil Procedure require that the appellant in Government
appeal should have brought the legal representatives of respondent deceased Y.
Prabhakar Reddy, on record. There is no controversy that rule 4 of Order 22
read with rule 11 would be attracted in this case, and as admittedly the legal
representatives of deceased Y. Prabhakar Reddy, the respondent in Government
appeal, were not brought on record till the appeal was disposed of, ordinarily
the appeal would abate.
The substantial question is: where cross
appeals are preferred against a common decree or an Award and in the cross
appeals the parties are arrayed in rival positions and where one party as
appellant dies and his legal representatives are brought on record though those
very legal representatives are not substituted in his place which he adopted as
respondent in the cross appeal, would the cross appeal abate? This question may
be examined first on principle. The basic principle underlying order 22, rules
3 and 4 which on account of the provision contained in order 22, rule 11 apply
to appeals, is indisputably a facet of natural justice or a limb of audi altrem
partem rule. It is a fundamental rule of natural justice that a man has a right
to be heard- audi altrem partem-where a decision affecting him or his interest
is to be recorded. It hurts one's sense of justice, fairness and reason that a
decision one way or the other is recorded affecting a party without giving that
party an opportunity of being heard. This rule embraces the whole notion of
fair procedure and the rule requiring a hearing is of almost universal
validity. It has made a serious inroad in administrative decisions. It should
enjoy a top place in a judicial proceeding.
The first limb of this rule audi altrem
partem is that a person must be given an opportunity of being heard before a
decision one way or the other affecting him is recorded.
As a corollary to this rule it is provided in
the Code of Civil Procedure that where a party to the proceeding dies pending
the proceeding and the cause of action survives, the legal representatives of
the deceased party should be brought on record which only means that such legal
representatives must be afforded an opportunity of being heard before any
liability is fastened upon them. It may be that the legal representatives in a
given situation may be personally liable or the estate of the deceased in their
hands would be liable and in either case a decision one way or the other,
adverse or favourable to them, cannot be recorded unless they are given an
opportunity of being heard. Order 22, rules 3 and 4 codify these procedural
safeguards translating into statutory requirement one of the principles of
natural justice.
615 If this is the discernible principle
underlying order 22, rules 3 and 4 it has been demonstrably established by
interpretation put on these two rules. Original view was that all legal
representatives of a deceased plaintiff or defendant must be substituted on the
pain of the action abating. With utmost diligence from a multitude someone may
escape notice and the consequent hardship in abatement of action led this Court
to assert the principle that where some legal representatives are brought on
record permitting an inference that the estate is adequately represented, the
action would not abate though it would be the duty of the other side to bring
those legal representatives on record who are overlooked or missed even at a
later date. When the aforementioned two provisions speak of legal
representatives it only means that if after diligent and bona fide enquiry the
party liable to bring the legal representatives on record ascertains who are
the legal representatives of a deceased party and brings them on record within
the time limited by law, there is no abatement of the suit or appeal on the
ground that some other legal representatives have not been brought on record,
because the impleaded legal representatives sufficiently represent the estate
of the deceased and the decision would bind not only those impleaded but the
entire estate including the interest of those not brought on record. This view
has been consistently adopted by this Court in Daya Ram & Ors. v. Shyam
Sundari (1) N. K. Mohammad Sulaiman v. N. C. Mohammad Ismail & Ors.;(2) and
Harihar Prasad Singh & Ors. v. Balmiki Prasad Singh & Ors.(3) The
principle deducible from these decisions is that not only the interest of the
deceased was adequately taken care of by those who were on record but they had
the opportunity to put forth their case within permissible limits. Neither the
case of the deceased nor of his successors in-interest has gone by default. In
other words, the principle is that if thd deceased had as a party a right to
put forth his case, those likely to be affected by the decision on death of the
deceased had the same opportunity to put forth their case and even if from a
large number having identical interest some are not brought on record those who
are brought on record would adequately take care of their interest and the
cause in the absence of some such would not abate. In legal parlance this
procedure affords an opportunity of being heard in all its ramification before
a decision on the pending list is taken.
Another principle in this behalf which has
found recognition of the Courts is that if the legal representatives of the
deceased party are before the Court in the same action even if in another
capacity, failure to 616 bring them on record in a specific legal position
would not result in abatement of the action. In Mahabir Prasad v. Jage Ram
& Ors.,(1) this Court was called upon to consider whether where a legal
representative of a deceased party is on record in another capacity, failure to
implead him as legal representative of the deceased party would result in
abatement of the action ? In that case Mahabir Prasad, his wife Saroj Devi and
his mother Gunwanti Devi filed a suit against Jaga Ram and two others for
recovering rent then due in the aggregate amount of Rs. 61,750/-. The suit
ended in a decree. The execution of the decree was resisted by the defendants
on the plea inter alia that the decree was inexecutable because of the provisions
of Delhi Land Reforms Act, 1954. This contention found favour with the
executing court and the application for execution was dismissed.
Mahabir Prasad, one of the decree holders
alone appealed against that order and impleaded Gunwati Devi and Saroj Devi as
party respondents along with the original judgment- debtors. Saroj Devi died in
November 1962 and Mahabir Prasad applied that the name of Saroj Devi be struck
of from the array of respondents. The High Court made an order granting the
application "subject to all just exceptions".
Subsequently the High Court dismissed the
appeal holding that because the heirs and legal representatives of Saroj Devi
were not brought on record within the period of limitation, the appeal abated
in its entirety. This Court, while setting aside the order made by the High
Court holding that the appeal abated, observed as under:
"Even on the alternative ground that
Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement
merely because no formal application for showing Mahabir Prasad as an heir and
legal representative of Saroj Devi was made. Where in a proceeding a party dies
and one of the legal representatives is already on the record in another
capacity, it is only necessary that he should be described by an appropriate
application made in that behalf that he is also on record, as an heir and legal
representative. Even if there are other heirs and legal representatives and no
application for impleading them is made within the period of limitation prescribed
by the Limitation Act the proceeding will not abate".
The principle deducible from this decision of
their Court is that where one of the legal representatives of the deceased
party is before the Court at the time when the proceeding is heard but in
another capacity, it is immaterial whether he is described as such or not and
even if there are other legal representatives, the cause will not abate.
617 Now, when a proceeding such as a suit
ends in a decree it may be that decree may partly satisfy both the parties with
the result that with regard to that part of decree by which each party is
dissatisfied that party may prefer an appeal challenging only that part of the
decree by which it is dissatisfied. When one such party to the decree appeals
and a notice of the appeal is served on the other side the respondent receiving
the notice may prefer cross-objections under Order 41, Rule 22, but what is
important to note is that such respondent though he may not have appealed from
any part of the decree, may take any cross-objections to the decree which he
could have taken by way of appeal. In other words, the respondent could have as
well filed an appeal against that part of the decree by which he is
dissatisfied but if he has not filed an appeal he can as well put forth
cross-objections as contemplated by Order 41, rule 22.
Parameters of cross-objections by the
language of Order 41, rule 22, are limited to the contentions which could
appropriately be taken in an appeal against a decree or a part of a decree. For
all practical purposes cross- objections and cross-appeals have the same
purpose to achieve and cover the same ground. Would they stand on a different
footing in respect of death of a party either in cross-appeals or in cross-objections?
There is a conflict of judicial opinion on the effect of substitution of legal
representatives of a deceased party in cross-objections and in cross appeals.
Mulla has noted this cleavage of opinion in his Code of Civil Procedure, 13th
Edition, Volume II, P. 1237, as under:
"Where both the parties to a suit file
independent appeals against the decree passed therein, and one of them dies
pending the appeal, the substitution of his legal representatives in one appeal
does not enure for the benefit of the other appeal which consequently abates.
But where one party to a suit prefers an appeal against the decree passed
therein and the other files a memorandum of cross-objections under O. 41, r.
22, What is the effect of the legal representatives of a deceased party to the
proceedings being substituted in the memorandum of cross-objections, and not in
the appeal ? There is a conflict of judicial opinion on this question. Where
the respondent died and his legal representative was brought on record on his
own application in the cross-objections and the appellant had not applied to
bring him on record, it was held that the substitution of the legal
representative in the cross-objection enured for the benefit of the appeal also
as both the appeal and the cross appeal (sic) were part of the same
proceedings. And where 618 the appellant died, and his legal representatives
were brought on record in the cross-objection but not in the appeal, it was
held that the substitution in the cross- appeal (sic) did not enure for the
benefit of the appeal and that the latter abated".
Decisions on which the commentary is based
may now be examined in depth to sort out principle, if any, to which the
cleavage of opinion is referable.
In a very early decision in Brij Indar Singh
v. Lala Kanshi Ram & Ors.,(1) the Judicial Committee held that substitution
of a deceased party's legal representatives in an interlocutory appeal arising
from an order made in a suit would enure for the benefit of the suit and no
separate application for substitution in the suit need be made. It was in terms
held that the introduction of a plaintiff or a defendant at one stage of the
suit is an introduction for all stages, and that though it was done in the
course of an interlocutory application as to the production of books the same
would enure for the benefit of the suit. While affirming the ratio of this
decision this Court in Rangubai Kom Shankar Jagtap v. Sunderabai Bharatar
Sakharam Jedhe & Ors.,(2) analysed the principle underlying Order 22, rules
3, 4 and 11 as under:
"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 recognised 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 filed a suit against B for the recovery of possession
and mesne profits. After the issues were framed, B 619 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 brought 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 filed 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 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, 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 and
the orders made therein were made in the suit itself. Therefore, that order
enures 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 therefrom; 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." 620 In Sankaranaraina
Saralaya v. Laxmi Hengsu & Ors.,(1) two independent appeals were filed
against the decree of the trial court in the suit, one appeal being by the
plaintiff and the other appeal by defendant 2. In the appeal filed by defendant
2 the legal representatives of the respondent, viz., the plaintiff not having
been brought on record within the time prescribed by law, the appeal abated,
and when that abatement was sought to be set aside, the Court found that there
was no ground for allowing the application. It was then contended that because
the legal representatives of the appellant in other appeal (who was undoubtedly
the plaintiff in the suit) have been added within the time allowed, it should
be taken that those legal representatives have also been added in place of the
deceased respondent by defendant
2. Negativing this contention a learned
single Judge of the Madras High Court held that there is no interdependence
between the two appeals and the analogy of an appeal and a memorandum of
cross-objection in the same appeal does not hold good in case of two
independent appeals where the Court has to deal with two separate and
independent appeals though arising from the same suit and the parties adopt
rival positions. The Court distinguished the decision in Brij Indar Singh's
case (supra) by posing a question to itself:
'Can it be said in the present case that 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' and answered
it in the negative observing that it is not possible to extend the principle
laid down by Judicial Committee in Brij Indar Singh's case (supra) In Dasondha
Singh v. Shadi Ram Sardha Ram & Ors.(2) there were cross appeals arising
from the same decree before the Court and the plaintiff Shadi Ram was an
appellant in the appeal preferred by him and when he died his legal
representatives were impleaded within the prescribed time.
In the appeal preferred by the defendant the
application for impleading Shadi Ram's legal representatives which was made
beyond the prescribed period of limitation and the Court having declined to
condone the delay, the appeal abated. It was contended that as the legal
representatives of Shadi Ram were impleaded in his appeal and as both these
appeals arose out of the same judgment, the legal representatives of Shadi Ram
being before the Court it is a mere formality to make necessary endorsement on
record and, therefore, the appeal preferred by defendant 2 would not abate. The
Court negatived the argument relying upon a Division Bench decision in Punjab
State v. Atma Singh.(2).
621 In State of Rajasthan & Ors. v.
Raghuraj Singh,(1) two cross-appeals came to be filed against the decision of
the trial court to the Rajasthan High Court. During the pendency of these
appeals the plaintiff who was appellant in his appeal died and his legal
representatives were impleaded within time. It appears that the legal
representatives of the plaintiff who was respondent in defendant's appeal were
not substituted and a preliminary objection was taken that the defendant's
appeal abates or has abated. The defendant countered this submission by saying
that as plaintiff's legal representatives were before the Court as brought on
record and substituted in the plaintiff's appeal, it would be permitting a
technicality to hold that the defendant's appeal has abated. The Court examined
two separate limbs of the submission: (1) what is the effect of substitution of
deceased party's legal representatives in cross-objections though no such
substitution was made in the main appeal; and (2) would the effect be different
if instead of cross- objections there were cross-appeals. A Division Bench of
the Rajasthan High Court held that cross-objections being part of the same
proceedings and form part of the same record, substitution of legal
representatives in the cross- objections would enure for the benefit of the
main appeal.
But in the case of cross-appeals, after
referring to Sankaranaraina Saralaya's case, (supra) the High Court held that
substitution of legal representatives of a deceased party in one appeal cannot
enure for the benefit of the cross-appeal and, therefore, defendant's appeal
was held to have abated.
An analysis of the aforementioned decisions
in search of a common thread or a deducible principle has not proved helpful.
The following conclusions emerge from these
decisions:
(1) If all legal representatives are not
impleaded after diligent search and some are brought on record and if the Court
is satisfied that the estate is adequately represented meaning thereby that the
interests of the deceased party are properly represented before the Court, an
action would not abate.
(2) If the legal representative is on record
in a different capacity, the failure to describe him also in his other capacity
as legal representative of the deceased party would not abate the proceeding.
(3) If an appeal and cross-objections in the
appeal arising from a decree are before the appellate court and the respondent
dies, substitution of his legal representatives in the cross-objections being
part of the same record, would enure for the benefit of the appeal and the
failure of the appellant to implead the legal representatives of the 622
deceased respondent would not have the effect of abating the appeal but not
vice versa.
(4) A substitution of legal representatives
of the deceased party in an appeal or revision even against an interlocutory
order would enure for the subsequent stages of the suit on the footing that
appeal is a continuation of a suit and introduction of a party at one stage of
a suit would enure for all subsequent stages of the suit.
(5) In cross-appeals arising from the same
decree where parties to a suit adopt rival positions, on the death of a party
if his legal representatives are impleaded in one appeal it will not enure for
the benefit of cross-appeal and the same would abate.
Is it possible to ratiocinate these decisions?
Apparently the task is difficult. Now, if the object and purpose behind
enacting Order 22, rules 3 and 4 are kept in forefront conclusions Nos. 1 to 4
would more or less fall in line with the object and purpose, namely, no
decision can be recorded in a judicial proceeding concerning the interests of a
party to a proceeding without giving such party or his legal representatives an
opportunity of putting forth its/their case. To translate this principle into
action denuding it of its ultra technical or harsh application, the Courts held
that if some legal representatives are before the Court, or they are before the
Court in another, capacity or are brought on record at some stage of the suit,
the action will not abate even if there is no strict compliance with the
requirements of rules 3 and 4. The distinction in the process drawn between the
substitution of legal representatives in cross-objections and cross-appeal
defies ratiocination. Cross-appeal and cross-objections provide two different
remedies for the same purpose and that is why under Order 41, rule 22,
cross-objections can be preferred in respect of such points on which that party
could have preferred an appeal. If such be the position of cross- objections
and cross-appeal a differentiation in the matter of their treatment under rules
3 and 4 cannot be justified merely on the ground that in case of
cross-objections they form part of the same record while cross-appeals are two independent
proceedings.
Now, if the discernible principle underlying
rules 3 and 4 of Order 22 is that the legal representatives of the deceased
likely to be affected one way or the other by the decision in appeal must be
before the Court and must be heard before a decision affecting their interests
is recorded it would stand fully vindicated when in cross- appeals a party
occupying the position of an appellant in one appeal and respondent in the
other appeal dies and his legal representatives are brought on record in the
appeal in which he is the appellant and not in the other appeal wherein he is a
respondent because the subject-matter of both the 623 appeals being the decree
under attack, they have an opportunity to support the decree in their favour and
question the correctness of the decree adverse to them. Even if they were
brought on record as legal representatives of the deceased in his capacity as
respondent in the cross- appeal, they could not have further advanced their
case nor could they have done anything more than what they would do in their
capacity as legal representatives of the deceased appellant unless they were
precluded from contending that they being not on record cannot support or
controvert the decree. They have thus the fullest opportunity of putting forth
their grievance against and in support of the decree.
Their position was not the least likely to be
affected one way or the other even if they were not formally impleaded as legal
representatives of the deceased in his capacity as respondent. To say that
cross-appeals are independent of each other is to overlook the obvious position
which parties adopt in cross-appeals. Interdependence of cross-appeals is the
same as interdependence of appeal and cross-objections because as in the case
of appeal and cross-objections a decision With regard to appeal would directly
impinge upon the decision in cross-objections and vice versa. Indubitably the
decision in one of the cross-appeals would directly impinge upon the decision
in the other because both ultimately arise from the same decree. This is really
the interdependence of cross-appeals and it is impossible to distinguish
cross-appeals from appeal and cross-objections.
Unfortunately this interdependence was
overlooked by the Madras High Court when the scope of cross-appeals arising
from the same decree and approach is cross-objections in respect of the same
decree were not examined in depth in Sankaranaraina Saralaya's case (supra).
This approach is merely an extension of the principle well recognised by Courts
that if legal representatives are before the Court in the given preceding in
one capacity it is immaterial and irrelevant if they are not formally impleaded
as legal representatives of the deceased party in another capacity.
Shorn of embellishment, when legal
representatives of a deceased appellant are substituted and those very legal
representatives as of the same person occupying the position of respondent in
cross-appeal are not substituted the indisputable outcome would be that they
were on record in the connected proceeding before the same Court hearing both
the matters, in one capacity though they were not described as such in their
other capacity, namely, as legal representatives of the deceased respondent. To
ignore this obvious position would be giving undue importance to form rather
than substance. The anxiety of the Court should be whether those likely to be
affected by the decision in the proceeding were before the Court having full
opportunity to canvass their case. Once that is satisfied it can be 624 safely
said that the provisions contained in rules 3 and 4 of Order 22 are satisfied
in a given case. To take another view would be to give an opportunity to the
legal representatives of a deceased party in an appeal having had the fullest
opportunity to canvass their case through the advocate of their choice
appearing in cross-appeals for them and having canvassed their case and lost,
to turn round and contend that they were not before the Court as legal
representatives of the same person in his other capacity, namely, respondent in
the cross appeal. In other words, those legal representatives were before the
Court all throughout the hearing of the appeal as parties to the appeal and
canvassed their case and were heard through their advocate and they had the
full opportunity to put forth whatever contentions were open to them in the
appeals and to contest the contentions advanced against them by the opposite
side and yet if the other view is taken that as they were not formally impleaded
as legal representatives of the deceased respondent in the cross-appeal that
appeal has abated, it would be wholly unjust. It is very difficult to
distinguish on principle the approach of the Court in appeals and
cross-objections and in cross appeals in this behalf. No principle of law can
distinguish this devigational approach. The cases which have taken the view
that in cross-appeals the position is different than the one in appeal and
cross objections do not proceed on any discernible legal principle. Nor can
they be explained by any demonstrable legal principle but in fact they run
counter to the established legal principle.
In the present case the legal representatives
of deceased Y. Prabrakar Reddy were brought on record in the claimants' appeal.
Through their advocate they were contending before the High Court that not only
the compensation should be enhanced but in reply to the submissions of the
counsel for the State in their appeal they contended that no case was made out
for reducing the compensation. Both the appeals were heard together and not one
after the other. Therefore, the legal representatives of the deceased Y.
Prakhakar Reddy were all throughout before the Court, of course in one
capacity, viz., as legal representatives of deceased appellant, but not so
described as legal representatives of the deceased respondent. That cannot make
any difference. Therefore, the appeal has not abated.
On merits, I agree with my learned brother
Shinghal, J.
that the compensation as awarded by the High
Court represents the market value of the land on the date of the Notification
under s. 4 of the Land Acquisition Act and no case is made out for interfering
with the same. Accordingly, I agree with the final order that the appeal be
dismissed with no order as to costs.
P.B.R. Appeal dismissed.
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