IMPORTANT POINTS
Technicalities of law should not be allowed to prevail over the demands of justice. On the other hand, if the procedural requirement is drawn from a wholesome principle of substantive law to advance the cause of justice, the same may not be overlooked.
Order XXII Rule 3 is also applicable to appeals filed under Order XLI. It is applicable when either a suit or an appeal is filed by more than one plaintiffs or appellants.
When two brothers jointly challenged adoption of defendant and the suit is dismissed, adoption is upheld. When during the appeal second appellant dies appeal qua him abates. In absence of his LRs being brought on record if first appellant is permitted to prosecute the appeal and his succeeds, that will result in a decree in his favour which will be irreconcilable with the decree of trial court which has become final. Hence in such case the whole appeal will abate.

JUDGMENT :

K.M. JOSEPH, J.

1. This appeal by special leave is directed against the order of the High Court in Regular First appeal No.717 of 1998. By the impugned judgment, the High Court has taken the view that the appeal filed by the appellant does not survive for consideration. This is on the following reasoning:

The appeal was filed by the appellant and his late brother against the judgment by the trial court dismissing the suit filed by them. The relief in the suit was to declare that defendant No.1 was not the adopted son and he has no title or interest over the suit property and for prohibitory injunction against the defendant not to disturb the joint possession of the suit agricultural land of the plaintiff and defendant No.2.

2. It was the appellants case that one Govindareddi, the propositus died in 1946. He left behind him two sons and a daughter. The plaintiffs were the children of one of the sons. The second defendant was the wife of the other son Basavareddi. The suit properties were the properties of the joint family of Govindareddi and his sons it was claimed. The plaintiffs have filed another suit as O.S. No.66 of 1990 against the second defendant for declaration that she has no right in the property. Injunction was also sought. Injunction was ordered against her. On the ill advice of some advisors it was their case that she has created a false document of adoption dated 27.04.1991 adopting the first defendant. Defendants 3 and 4 are alleged to have given to the first defendant on adoption to the second defendant. The trial Court dismissed the suit and therefore upheld the adoption. Against the said judgment as noted, both the plaintiffs preferred first appeal before the High Court. It is while so that during the pendency of the appeal the second plaintiff/second appellant died. The LRs of the second appellant were not brought on record. The appeal, therefore, abated qua the second appellant. The High Court took the view that having regard to the decree which has been passed the appeal would abate not only qua the second appellant/ plaintiff but as a whole and accordingly it was so ordered.

3. We have heard learned counsel for the parties.

4. Learned counsel for the appellant drew our attention to the following orders passed by the High Court in the appeal and referred to in the impugned judgment:

“8. When the matter was listed on 20th July, 2001, this court observed thus:

It is stated by the learned counsel for the appellant that the second appellant (plaintiff No.2) is died and in view of the death of second appellant, the matter is adjourned by two weeks to enable the appellants’ counsel to take steps.”

9. The appeal was relisted on 10.09.2001. This court has observed thus:

Hence the appeal filed against the appellant No.2 abates. Memo filed by appellant No.1 submitting himself and appellant No.2 are brothers and co-owners of suit schedule property. Since the LRs of appellant No.2 have not evinced interest to prosecute the appeal, appellant No.1 prays permission to prosecute the appeal. Accordingly, permission is granted.”

5. Learned counsel for the appellant would contend that the appellant herein could have filed a separate suit seeking the same relief.

Learned counsel for the appellant relied upon the order passed on 10/09/2001 and contended that though the LRs of the appellant No.2 did not evince interest to prosecute the appeal, the petitioner who is appellant No.1 prayed for permission to prosecute the appeal. The permission was granted by the High Court. The respondents did not oppose the prosecution of the appeal filed by the appellant despite knowing that the second appellant did not choose to get themselves impleaded and the appeal would have abated qua him also. According to the appellant this would stand in the way of the court and the respondents from proceeding on the basis that the appeal has abated as a whole. In other words, he contended that estoppel will operate against the appeal being dismissed on