Hemareddi (D) through Lrs. vs Ramachandra Yallappa Hosmani and Ors.

Practice & Procedure – Procedural requirement vis-a-vis principle of substantive law – Discussed.

Dismissing the appeal, the Court

HELD: 1.1 Procedure is the hand maiden of justice, the technicalities of law should not be allowed to prevail over the demands of justice and obstacles in the path of the Court considering a case on merit should not ordinarily become insuperable. On the other hand, if the so called procedural requirement is drawn from a wholesome principle of substantive law to advance the cause of justice, the same may not be overlooked. There can be no doubt that Order XXII, Rule 3, CPC is applicable also to appeals filed under Order 41. Order XXII, Rule 3 declares that where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone inter alia the Court on an application can substitute the legal representatives of the deceased plaintiff and proceed with the suit. Sub-rule (2) provides that if it is not so done, the suit shall abate as far as the deceased plaintiff is concerned. Order XXII, Rule (3) therefore is applicable when either a suit or an appeal is filed by more than one plaintiffs or appellants as the case may be. This is apart from it applying when there is a sole plaintiff or sole appellant. In such a situation, on the death of one of the plaintiffs or appellants and the right to sue does not survive to the remaining plaintiff/plaintiffs or appellant/appellants alone, then the LRs of the deceased party can come on record. Should he not do so, ordinarily, the proceeding will abate as far as the deceased party is concerned. There were legal representatives available for the second appellant. This is not a case where the estate of the second appellant would pass to the appellant herein by survivorship or otherwise. Therefore, the first requirement is fulfilled for allowing Order XXII, Rule 3 to operate. Admittedly, steps were not taken for substitution in regard to the second appellant. The appeal, therefore, abated qua him as is declared by Order XXII, Rule 3(2). Though this is all that the Order XXII, Rule 2 declares, the principle has evolved that in certain kinds of litigation, the consequences of abatement qua a party is not limited to the deceased party alone but it affects all the other parties and the litigation itself. In other words, a suit or an appeal as the case may be, would suffer an untimely demise by the proceeding abating as a whole.[Paras 7-9] [270-A-B; F-H; 271-A-C]

1.2 The appeal having abated in regard to the late brother, the decree of the trial Court has become final qua the deceased brother of the appellant. The effect of the same is that the adoption is found legal. The result of the appellant being allowed to proceed further and succeed in the appeal would be the passing of a decree by the High Court. The said decree would be to the effect that the adoption is invalid. The suit which was jointly filed by the appellant and his late brother would have to be decreed whereas the suit filed by the appellant and his late brother stands dismissed by the trial Court. Both the decrees cannot stand together. There would be irreconcilable conflict. The defendants are common. They would be faced with two decrees regarding the same subject matter which are irrevocably conflicting. Order XXII, Rule 3 provides for the converse of Order XXII, Rule 4. That is to say Order XXII, Rule 3 deals with a case where one or more plaintiffs or appellants or the sole plaintiff or sole appellant dies during the pendency of the suit or appeal. Order XXII, Rule 4 on the other hand deals with a case where one or more of the defendants in the suits or sole defendant or the respondents or sole defendant in the appeal dies. In both these cases it must be noticed that it is a condition precedent for the provisions to apply that the right to sue does not survive to the remaining plaintiffs/appellants (Order XXII, Rule 3) or the remaining one or two appellants and right to sue does not survive against the defendant or defendants in the suit or respondents in the appeal alone or the sole defendant or surviving defendants dies and the right to sue survives. Order XXII, Rule 2 deals with a situation where there are more than one plaintiffs and defendants and any of them dies and the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the suit or the appeal shall be proceeded against at the instance of the surviving plaintiff or plaintiffs/appellant or appellants or against surviving defendant or defendants in the suit/respondents in the appeal. [Paras 11, 13] [271-H-; 272-A-B; 276-C-F]

1.3 The appellant and his late brother sued as plaintiffs for a declaration that the first defendant was not the adopted son and he has no rights. They also sought a prohibitory injunction. The suit stood dismissed by trial court. Taking the converse position and assuming that the suit was decreed by the trial court and appeal was carried by the defendants, and pending the appeal by the defendants, if the late brother of the appellant had died and if the defendants had not impleaded the legal representatives of late brother and the appeal abated as against him, would it then not open to the appellant as respondent in the appeal to contend that if the appeal was to be allowed to proceed in the absence of the legal representatives of his late brother and succeed, there would be an inconsistent decree. On the one hand, there will be a decree by the trial Court declaring that the first defendant was not the adopted son and had no interest in the property qua the late brother of the appellant. On the other hand, the appellate court could be invited to pass a decree which should be to the effect that the first defendant was found to be the adopted son and had right and interest over the property and a declaration to that effect would have to be granted. Would not the appellate court then have to necessarily hold though the decree in favour of the deceased brother of the appellant has become final, and under it, a declaration is granted that the defendant No.1 is not the adopted son and he has no right to claim the property and there is an injunction against him that he is the adopted son opposed to the decree which has been passed by the trial court which has attained finality. The appellate court would indeed have to refuse to proceed with the appeal on the basis that allowing the appeal by the defendants would lead to an appellate decree which is inconsistent with the decree which has become final as against the deceased brother of the appellant. The situation cannot be any other different, when the converse of the aforesaid scenario is contemplated which happens to be the factual matrix obtaining in this case. The right which was set up by the appellant alongwith his late brother was joint. They were members of the joint Hindu family consisting of their late father and which consisted of late ‘G’, their father ‘SR’ and ‘B’. This is not a case where their claims were distinct claims. [Paras 18, 19] [284-D-H; 285-A-C]

1.4 It may be true that if a separate suit had been filed by the late brother and it had abated on his death, there will be no decree on merits and the suit would have abated. No doubt, it could be argued that even though the appellant and his late brother set up the case of joint right, it would only mean that they are co-owners of the property, and therefore, they had independent rights as co-owners which could be canvassed in two different proceedings, and therefore, the decree of the trial court dismissing the suit be treated as two different decrees - one decree against the appellant and the other against his late brother. Even then, the decree, which the High court would be invited to pass, would be contradictory and inconsistent with the decree as against late brother of the appellant which may not be permissible in law. The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed. The argument that in view of the order passed on 10/09/2001 by which despite the death of late brother of the appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the appellant qua the proceeding is one arising out of the incompatibility of a decree which has become final with the decree which the appellant invites the appellate court to pass. In such circumstances, the mere fact that the appellant was permitted to prosecute the appeal by an interlocutory order would not be sufficient to tide over the legal obstacle posed by the inconsistent decree which emerges as a result of the failure to substitute legal representative of the late brother and the abating of the appeal filed by his late brother. [Paras 20-22] [285-D-H; 286-A-C]

Sardar Amarjit Singh Kalra (Dead) by LRS. and Others v. Pramod Gupta (Smt) (D) by LRS. And Others ; 2003

(3) SCC 272 : [2002] 5 Suppl. SCR 350 ; State of Punjab v. Nathu Ram AIR 1962 SC 89 : [1962] SCR

636 ; Ram Sarup v. Munshi & Ors. [1963] 3 SCR 858 – relied on.

Harihar Prasad Singh and Others v. Balmiki Prasad Singh and Others 1975 (1) SCC 212 : [1975] 2 SCR

932 – referred to.