Sunday, 11 December 2016

Whether doctrine of abatement is applicable to appeals?

It is clear from the combined reading of Order
XXII Rules 3, 4 and 11 CPC that the doctrine of abatement is
applicable equally to a suit as well as to an appeal. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6567 OF 2015
(Arising out of SLP (C) No. 22468/2013)
BANWARI LAL (D) BY LRS. & ANR. 
V
BALBIR SINGH .
Citation: 2016(6) MHLJ 1

2. This appeal arises out of the order dated
15.03.2013 passed by the High Court of Delhi dismissing the
second appeal being RSA No.100 of 2008 as abated and also
the interlocutory applications being CM Nos.6342/2008,
11811-11813/2009 and 1998/2012 to bring on record the
legal representatives of the appellants herein.
13. Respondent-Balbir Singh filed a suit bearing
No.369/1986 against one Banwari Lal and Swaraj for
declaration and permanent injunction. Case of
respondent-plaintiff is that he is the owner of parcel of land
measuring 600 sq. yards, bearing plot Nos. 5, 6 and 7 out of
Rect. No.42, Kila No.5/1 situated in the area of village Karawal
Nagar, Delhi in the abadi of Prem Nagar Extn. Illaqua
Shahara, Delhi. The aforesaid parcel of land is also claimed
by late Banwari Lal contending that the land was purchased
by him on 25.09.1985 from one Premlata and her husband
Chander Prakash. The trial court initially dismissed the suit
vide judgment dated 13.02.1997. In the appeal, the first
appellate court set aside the judgment and decree passed by
the trial court and the matter was remanded back to the trial
court to decide the matter afresh. Trial court considered the
entire matter afresh and again dismissed the suit bearing
No.276/2004 of the respondent/Balbir Singh vide judgment
dated 23.09.2005. Respondent/Balbir Singh again feeling
aggrieved, preferred a fresh appeal bearing RCA No.226/2005
against the said judgment and the decree. First appellate court
2by judgment dated 04.02.2008 set aside the judgment and
decree passed by the trial court and allowed the appeal of
Balbir Singh. During the pendency of the first appeal,
defendant-Banwari Lal died on 30.01.2006 that is almost two
years prior to the date of judgment of the first appellate court.
Even though Banwari Lal has expired on 30.01.2006, no steps
were taken to bring on record the legal representatives of late
Banwari Lal.
4. Being aggrieved by the judgment of the first
appellate court, Banwari Lal represented by his legal
representatives and the second appellant-Swaraj filed second
appeal before the High Court of Delhi. During the pendency of
the second appeal, appellant No.2-Swaraj also died on
02.12.2008.
5. Second Appeal itself was dismissed for non
prosecution on 02.08.2010. Two applications were filed
bearing CM Nos.17569-17570/2010 for restoration and
condonation of delay. On the basis of the said applications,
the High Court had passed an order on 02.02.2012 restoring
the second appeal to its original number. After restoration,
3the second appeal was dismissed by the High Court on the
following grounds:-
(i). The appellants have not taken steps to bring on
record the legal representatives of Banwari Lal either
in the first appeal or at the time when the second
appeal was filed. Second appeal was purportedly filed
on behalf of the legal heirs of late Banwari Lal without
there being any affidavit or Vakalatnama signed by
any of them or no application under Order XXII Rule 3
CPC has been filed along with the appeal. The
proceedings against Banwari Lal had abated even
during the pendency of the first appeal itself and it
was improper on the part of the appellants to have
mentioned the names of legal heirs of Banwari Lal in
the memo of second appeal.
(ii). Second appellant-Swaraj also died on 02.12.2008
and an order was passed on 06.08.2009 that the
second appeal abated qua the second appellant as no
steps were taken to bring on record his legal
representatives.
6. Second appellant-Swaraj died on 02.12.2008. CM
Nos.7034 of 2009 (under Order XXII Rule 9 CPC) and 7035 of
2009 (under Order XXII Rule 3 CPC) in RSA No.100/2008
were filed to set aside the abatement against appellant No.2
4and also to bring on record the legal representatives of the
second appellant. Since application for condonation of delay
in filing the applications was not filed, those applications were
withdrawn with liberty to file a fresh application. Since fresh
applications were not filed to bring on record the legal
representatives of the second appellant, the second appeal was
dismissed qua the second appellant by order dated
06.08.2009. It is clear from the combined reading of Order
XXII Rules 3, 4 and 11 CPC that the doctrine of abatement is
applicable equally to a suit as well as to an appeal. It is seen
from the records that fresh applications viz. 11811/2009 (for
condonation of delay), 11812/2009 (under Order XXII Rule 9
CPC) and 11813/2009 (under Order XXII Rule 3 CPC) were
filed to set aside the abatement caused due to the death of the
second appellant-Swaraj. As noticed earlier, second appeal
being RSA No.100/2008 was dismissed for non prosecution on
02.08.2010. By order dated 02.02.2012, the second appeal
was restored to file on payment of cost of Rs.5,000/-. The
relevant portion of the order reads as under:-
“….In view of the reasoning given, the order dated
02.08.2010 is recalled subject to costs of Rs.5000/-.
The application stands disposed of.
5…..
RSA 100/2008 and CM 6342/2008 (for stay),
11811/2009 (for delay), 11812/2009 (u/o 22 R 9 CPC)
and 11813/2009 (u/o 22 R 3 CPC)
…..
Since the appeal has been revived, the interim order
dated 01.05.2008 also stands revived.”
It appears, even though second appeal was restored, no
specific order was passed to restore the applications CM
No.11811/2009, 11812/2009 and 11813/2009.
7. But the facts remain that three fresh applications
No.11811/2009, 11812/2009 (under Order XXII Rule 9 CPC)
and 11813/2009 (under Order XXII Rule 3 CPC) were filed for
condonation of delay and to set aside the abatement and to
bring on record the legal representatives of appellant
No.2-Swaraj. When the second appeal was restored to file,
specific order ought to have been passed restoring the above
three applications and setting aside the abatement and the
legal representatives of the appellant No.2 ought to have been
brought on record. Without passing specific order on those
three applications, High Court was not right in dismissing the
second appeal as abated qua the second appellant.
8. In so far as the first appellant late Banwari Lal, he
died on 30.01.2006 during the pendency of the first appeal
6and in the first appellate court no steps were taken to bring on
record the legal representatives of late Banwari Lal. In the
first appeal, respondent-Balbir Singh was the appellant and it
was his responsibility to bring on record the legal
representatives of late Banwari Lal. When the second appeal
was filed, memo of appeal contained the names of legal
representatives of late Banwari Lal. It may be that legal
representatives have not signed memo of appeal. In the first
appeal, if the legal representatives of Banwari Lal were
brought on record, the cause title in the decree of the first
appellate court would have carried the names of legal heirs of
late Banwari Lal. There would have been discrepancy between
the decree of the first appellate court and the memo of the
second appeal. When the second appeal was filed, the High
Court Registry should have checked up the names of the
parties as occurred in the decree of the courts below and the
memo of second appeal and the defects should have been
pointed out at that time. But that was not to be so.
9. Since no steps were taken to bring on record the
legal representatives of late Banwari Lal either in the first
7appeal or in the second appeal, the appellants have filed CM
No. 1998/2012 (under Order I Rule 10 CPC read with Section
151 CPC) to implead (i) Shakuntala (ii) Gaurav (iii) Rachna and
(iv) Manju. Civil Procedure Code Order XXII stipulates the
manner in which the legal representatives of plaintiffs or
defendants ought to be brought on record. The prescribed
procedure cannot be circumvented by filing application under
Order I Rule 10 CPC read with Section 151 CPC. However, in
our view, it would be unjust to non-suit the appellants on the
ground of technicalities.
10 Provisions of Order XXII CPC are not penal in
nature. It is a rule of procedure and substantial rights of the
parties cannot be defeated by pedantic approach by observing
strict adherence to the procedural aspects of law. In Sardar
Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272, a Five
Judge Bench of this Court held as under:-
“26. Laws of procedure are meant to regulate effectively, assist
and aid the object of doing substantial and real justice and not
to foreclose even an adjudication on merits of substantial rights
of citizen under personal, property and other laws. Procedure
has always been viewed as the handmaid of justice and not
meant to hamper the cause of justice or sanctify miscarriage of
justice. A careful reading of the provisions contained in Order
22 CPC as well as the subsequent amendments thereto would
lend credit and support to the view that they were devised to
ensure their continuation and culmination in an effective
8adjudication and not to retard the further progress of the
proceedings and thereby non-suit the others similarly placed as
long as their distinct and independent rights to property or any
claim remain intact and not lost forever due to the death of one
or the other in the proceedings. The provisions contained in
Order 22 are not to be construed as a rigid matter of principle
but must ever be viewed as a flexible tool of convenience in the
administration of justice. The fact that the khata was said to be
joint is of no relevance, as long as each one of them had their
own independent, distinct and separate shares in the property
as found separately indicated in the jamabandi itself of the
shares of each of them distinctly. We are also of the view that
the High Court should have, on the very perception it had on
the question of abatement, allowed the applications for
impleadment even dehors the cause for the delay in filing the
applications keeping in view the serious manner in which it
would otherwise jeopardize an effective adjudication on merits,
the rights of the other remaining appellants for no fault of
theirs. Interests of justice would have been better served had
the High Court adopted a positive and constructive approach
than merely scuttled the whole process to foreclose an
adjudication of the claims of others on merits. The rejection by
the High Court of the applications to set aside abatement,
condonation and bringing on record the legal representatives
does not appear, on the peculiar nature of the case, to be a just
or reasonable exercise of the Court’s power or in conformity
with the avowed object of the Court to do real, effective and
substantial justice…” (Underlining added)
11. In Sital Prasad Saxena (D) by Lrs. v. Union of India
and Ors., (1985) 1 SCC 163, it was observed that the rules of
procedure under Order XXII CPC are designed to advance
justice and should be so interpreted as not to make them
penal statutes for punishing erring parties. On sufficient
cause, delay in bringing the legal representatives of the
deceased party on record should be condoned. Procedure is
9meant only to facilitate the administration of justice and not to
defeat the same. The dismissal of the second appeal by the
High Court does not constitute a sound and reasonable
exercise of its powers and the impugned order cannot be
sustained.
12. In the result, the impugned order is set aside and
this appeal is allowed and the following directions are issued:-
(i). Necessary applications were filed to bring on
record the legal representatives of appellant
No.2-Swaraj. Since the suit is of the year 1986 and
the second appeal is of the year 2008 and in the
interest of justice, the applications No. 6342/2008 (for
stay), 11811/2009 (for condonation of delay),
11812/2009 (under Order XXII Rule 9 CPC) and
11813/2009 (under Order XXII Rule 3 CPC) are
allowed and legal representatives of appellant
No.2-Swaraj are ordered to be brought on record.
(ii). CM No.1998/2012 filed under Order 1 Rule 10
CPC is treated as an application under Order XXII
Rule 3 CPC. The legal representatives of late Banwari
Lal viz., (i) Shakuntala (ii) Gaurav (iii) Rachna and (iv)
Manju are ordered to be brought on record and the
application is allowed.
1(iii). RSA No.100/2008 on the file of the High Court is
ordered to be restored. Memorandum of second appeal
be suitably amended and amended memo of appeal
shall be filed before the High Court within four weeks.
The High Court shall afford sufficient opportunity of
hearing to both parties and shall dispose of the second
appeal in accordance with law as expeditiously as
possible.
In the facts and circumstances of the case, we make no order
as to costs.
………………………J.
 (T.S. THAKUR)
 ………………………J.
 (R. BANUMATHI)
New Delhi;
August 25, 2015
11
Print Page

No comments:

Post a Comment