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1986 Supreme(Raj) 160
High Court Of Rajasthan
Judgename : G.N.BHARGAVA
BHONRI - Appellant
Versus
SHAMBHU NATH - Respondent
Second Appeal 100 Of 1974
Decided On : 07/09/1986
M.M.RAJAN, R.S.KEJARIWAL, V.B.SHARMA
The death of a party during the pendency of litigation triggers the application of O. 22, C. P. C., which governs the impleading of legal representatives. However, if the death occurs when no proceedings are pending, O. 22, C. P. C. does not apply, and the impleading of legal representatives is governed by other provisions such as S. 153, C. P. C. and O. 1, R. 10, C. P. C. These provisions allow for the impleading of legal representatives after the expiry of the limitation period, but only if sufficient cause is shown for the delay.
Headnote:
ABATEMENT OF APPEAL - LEGAL REPRESENTATIVES - IMPLEADING - NECESSARY PARTIES - INDIVISIBLE DECREE - O. 22, C. P. C. - APPLICABILITY - S. 153, C. P. C. - AMENDMENT OF DEFECTS - O. 1, R. 10, C. P. C. - SUBSTITUTION OR ADDITION OF PLAINTIFF - LIMITATION - O. 1, R. 9, C. P. C. - MISJOINDER OR NON-JOINDER OF PARTIES - PROVISO - NON-JOINDER OF NECESSARY PARTY - PROCEDURAL LAWS - PURPOSE AND OBJECT - JUSTICE AND FAIRNESS - BALANCE BETWEEN SUBSTANTIAL JUSTICE AND PROCEDURAL IRREGULARITIES - DELAY IN IMPLEADING LEGAL REPRESENTATIVES - SUFFICIENT CAUSE - CONDONATION OF DELAY - S. 5, LIMITATION ACT - APPLICATION - O. 41, R. 20, C. P. C. - APPLICATION UNDER - O. 22, RR. 3 AND 4, C. P. C. - APPLICABILITY - COMPETENCY OF APPEAL - INDIVISIBLE DECREE - REMAINING HEIRS NOT IMPLEADED - FINAL DECISION - APPEAL DISMISSED.
Fact of the Case:
Plaintiff Bholanath obtained a decree for possession, demolition, and perpetual injunction against the defendant Pooranmal. Bholanath passed away on October 5, 1971. Pooranmal filed an appeal impleading Shambhunath, Laxmidevi, and Poonadevi, the son, widow, and daughter of Bholanath, as respondents. Shambhunath filed an application stating that all legal representatives of Bholanath had not been brought on record within 90 days of his death, causing the appeal to abate. Pooranmal filed an application under O. 41, R. 20, C. P. C. to implead the remaining legal representatives, which was dismissed by the first appellate court.
Finding of the Court:
The court held that O. 22, C. P. C. was not applicable as Bholanath died when no proceedings were pending. The court also held that S. 153, C. P. C. and O. 1, R. 10, C. P. C. were not applicable as the appellant did not file an application under these provisions and did not show sufficient cause for the delay in impleading the remaining legal representatives. The court further held that the appeal was incompetent as the decree was indivisible and the remaining legal representatives were necessary parties.
Issues: 1. Whether O. 22, C. P. C. applies to a case where the death of a party occurred when no proceedings were pending? 2. Whether S. 153, C. P. C. and O. 1, R. 10, C. P. C. can be invoked to implead legal representatives after the expiry of the limitation period without showing sufficient cause? 3. Whether an appeal is competent when the decree is indivisible and some necessary parties have not been impleaded?
Ratio Decidendi: 1. O. 22, C. P. C. applies only when a party dies during the pendency of litigation. 2. S. 153, C. P. C. and O. 1, R. 10, C. P. C. can be invoked to implead legal representatives after the expiry of the limitation period only if sufficient cause is shown for the delay. 3. An appeal is not competent when the decree is indivisible and some necessary parties have not been impleaded.
Final Decision: The appeal was dismissed.
G. N. BHARGAVA, J.
( 1 ) JUDGEMENT :- This is a defendants second appeal against the judgement and decree passed by the Additional District Judge No. 2, Jaipur City, dismissing the appeal and confirming the judgement and decree passed by the Munsif Jaipur City (East ).
( 2 ) IT is not necessary to deal with the facts of the case except saying that the trial Court by its judgement dated 24-9-71 decreed the suit of the plaintiff Bholanath, for possession, demolition and perpetual injunction.
( 3 ) BHOLANATH expired on 5-10-71. The defendant, Pooranmal feeling himself aggrieved from the judgement of the trial court, preferred an appeal before the District Judge, Jaipur City, Jaipur, impleading Shambhunath, Laxmidevi, and Poonadevi; son, widow, and daughter, respectively of Bholanath (plaintiff) as respondents. The appeal was filed on 3-12-71. On 10-5-72, one of the respondents, Sambhunath, filed an application stating that all the legal representatives of Bholanath have not been brought on record, and Sitadevi, Deviprasad, Dhruvprasad and Tikku (sons and daughters) of pre-deceased daughter of Bholanath have not been brought on record within 90 days of death of Bholanath and, therefore, the appeal has abated as a whole, since the decree is for possession and is not indivisible. Copy of this application was received by the learned counsel far the defendant on 10-5-72 and the case was being adjourned for service on the other respondents.
( 4 ) IT was only on 3-9-73 that the appellant filed an application under O. 41, R. 20, C. P. C. read with O. 22, R. 3 and R. 4, and S. 151, C. P. C. , stating that the legal representatives of Bholanath who, have been brought on record and impleaded as respondents, are entitled to continue, and the appeal does not abate merely because, other legal representatives have not been impleaded as party and the appellant was not aware that there were some other legal representatives of Bholanath also, and, therefore, they were not impleaded; Another reason given in the application for not impleading other legal representatives was that Sambhunath, himself, in another case, pending in the Court of Additional Munsif No. 1, has submitted an application that the whole of the property of Bholanath has devolved on Shambhunath, being Karta of Hindu undivided family. But, to avoid any controversy he pleaded that Deviprasad, Sitadevi, Dhruvprasad and Tikku may be impleaded as party.
( 5 ) THE learned Additional District Judge No. 2, Jaipur City, by his judgement dated 5-9-73 dismissed the appeal as being not competent and not able to proceed in the absence of remaining heirs as he found that, the remaining heirs were necessary parties and not impleading them in appeal was fatal, and since the decree was indivisible, the appeal must abate as a whole.
( 6 ) IT is against this judgement and decree that the present second appeal has been filed.
( 7 ) SHRI R. S. Kejriwal, the learned counsel for the appellants, has very vehemently argued that the judgement of the first appellate court is erroneous; the appeal was filed within time; wherein some of the legal representatives have been impleaded. Merely because some legal representatives were not impleaded in appeal. the appeal does not abate as a whole.
( 8 ) SHRI Kejriwal has not disputed before me that the decree being of possession was indivisible; the remaining legal representatives were necessary parties; and they should have been impleaded in appeal being legal representatives of the plaintiff- Bholanath.
( 9 ) THE main contention of Shri Kejriwal is that since Bholanaths some legal representatives were impleaded it was sufficient representation and the appeal does not abate; and the first appellate Court should not have dismissed the appeal on this ground and should have allowed to bring other legal representatives on record. In support of this contention, Shri Kejriwal has placed reliance upon, the following decisions : 1. Shop of Battur Ramiah Lacha
