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2008 Supreme(Raj) 252
[Citation : RLW 2008(2) RJ 910 (SC)]
(Supreme Court)
Md. Hussain (D) by LRs. Vs. Gopibai & Ors. (Chatterjee, J.)
HONBLE TARUN CHATTERJEE, J.;
HONBLE A.K. MATHUR, J.
Mohd. Hussain (dead) by LRs & Ors.
Versus
Gopibai & Ors.
Civil Appeal No. 912 of 1999, decided on 19th February, 2008
S.K. Gambhir, Sr. Adv., Anil Sharma, B.K. Sharma, H.K. Puri, for Appellants
Alok Bachawat, Sameena Ahmed, Harinder Mohan Singh, for Respondents
Headnote:(a) C.P.C., Order 22 Rule 4 read with Sec. 100 — Abatement of appeal — One of the respondents died during the pendency of appeal — Judgment delivered after the death of one of the respondents — Some of the heirs and legal representatives of respondent were already on record — The only requirement was to take note of death of the respondent and delete his name from the array of respondents — Held — Setting aside the entire judgment for not bringing entire body of heirs and legal representatives of deceased on record would be too technical. (Para 3)
It is an admitted position that some of the heirs and legal representatives of Mohd. Hussain were already on record in the file of the second appeal. Such being the position, in our view, the question of abatement of the second appeal on the death of Mohd. Hussain could not arise at all as some of his heirs and legal representatives were admittedly on record. Only the question of noting the death of Mohd. Hussain could arise and his name could be deleted from the array of respondents in the second appeal.
Therefore, in our view, it would be considered too technical to set aside the entire judgment of the High Court on the ground of not bringing the entire body of heirs and legal representatives of Mohd. Hussain because some of his heirs and legal representatives were on record and the left out heirs and legal representatives were sufficiently represented by the other heirs on record. Accordingly, the first question, as posed hereinabove, is decided in favour of the present respondents. (Para 3)
¼d½ fl-iz-la-] vknsk 22 fu;e 4 lifBr /kkjk 100 & vihy dk mikeu & izR;FkhZx.k esa ls ,d dh vihy yfEcr jgus ds nkSjku e`R;q gqbZ & izR;FkhZx.k esa ls ,d dh e`R;q ds ipkr~ fu.kZ; fn;k & dqN mÙkjkf/kdkjh ,oa izR;FkhZ ds fof/kd izfrfuf/k igys ls gh vfHkys[k ij Fks & ,d ek= vko;drk Fkh izR;FkhZ dh e`R;q ntZ djuk vkSj izR;FkhZx.k ds i{kdkjksa ls mldk uke gVkuk & vfHkfu/kkZfjr & okfjlksa ds lEiw.kZ fudk; vkSj e`rd ds fof/kd izfrfuf/k;ksa dks vfHkys[k ij ugha ysus dh otg ls lEiw.kZ fu.kZ; dks vikLr djuk vR;f/kd rdfudh ckr gksxhA ¼in la- 3½
(b) C.P.C., Order 1 Rule 10 — Suit for redemption — Second appeal — Necessary parties — Impleadment of two married daughters of deceased mortagagee — Two sons of mortgagee already on record and representing interest in estate — One of the daughters already dead and another was neither in occupation of suit premises nor residing with mortgagee at the time of his death — Suit cannot be dismissed at second appellate stage for non-joinder of parties. (Paras 9 to 12)
Appeal allowed.
[k½ fl-iz-la-] vknsk 1 fu;e 10 & ekspukFkZ okn & f}rh; vihy & vko;d i{kdkj & e`rd cU/kdnkj dh nks fookfgr iqf=;ksa dks i{kdkj cukuk & cU/kdnkj ds nks iq= igys ls gh vfHkys[k ij vkSj lEink esa fgr dk izfrfuf/kRo dj jgs Fks & iqf=;ksa esa ls ,d dh iwoZ esa gh e`R;q gks pqdh Fkh vkSj nwljh okn ifjlj dh u rks vf/kHkksxh Fkh vksj u gh cU/kdnkj ds lkFk jgrh Fkh tc mldh e`R;q gqbZ & i{kdkj u cukus ds dkj.k f}rh; vihyh; voLFkk esa okn dks [kkfjt ugha fd;k tk ldrkA ¼in la- 9 ls 12½
vihy Lohdkj dhA
.
2. Before we narrate the facts leading to the filing of this appeal, we may note the two questions which were posed by the learned counsel for the parties and need to be decided in this appeal, which are as follows: -
i) Whether the second appeal of the respondents 1 to 4 herein, who were the appellants in the High Court, had abated as they had failed to make an application to bring the legal heirs and representatives of Mohd. Hussian, one of the respondents in the High Court who had died during the pendency of that second appeal?
ii) Whether in the absence of the two married daughters of one of the mortgagees, it could be held that the suit for redemption of mortgage was not maintainable in law, that is to say the suit for redemption could be dismissed on account of their non-impleadment?
3. Let us, therefore, take up the first question for our decision. The question is whether the second appeal, which was filed by the respondents 1 to 4, had abated in its entirety on the death of Mohd. Hussain. Mr. Gambhir, the learned senior counsel appearing for the appellants contended that in view of the finding that one of the respondents in the second appeal viz., Mohd. Hussain had died, and no application for substitution of his heirs and legal representatives was made even till the signing of the judgment, the second appeal had abated in its entirety and therefore, until and unless the abatement caused on the death of Mohd. Hussain was set aside, the judgment in the second appeal is liable to be set aside without going into the merits of the same. From the record, it appears that Mohd. Hussain had died on 19th of November, 1991. It is true that the application for substitution after setting aside abatement was filed by the appellants in the second appeal to bring on record the heirs and legal representatives of the deceased Mohd. Hussain on 3rd of March, 1992 after the judgment was already signed by the learned judge. It is an admitted position that some of the heirs and legal representatives of Mohd. Hussain were already on record in the file of the second appeal. Such being the position, in our view, the question of abatement of the second appeal on the death of Mohd. Hussain could not arise at all as some of his heirs and legal representatives were admittedly on record. Only the question of noting the death of Mohd. Hussain could arise and his name could be deleted from the array of respondents in the second appeal. That being the position, even if the judgment was delivered after the death of Mohd. Hussain whose entire body of heirs and legal representatives were not brought on record, even then the only requirement under the law was to take note of the death of Mohd. Hussain and delete his name from the array of respondents in the second appeal and the rest of the heirs and legal representatives who were not brought on record could be added in the cause title of the memorandum of appeal. Therefore, in our view, it would be considered too technical to set aside the entire judgment of the High Court on the ground of not bringing the entire body of heirs and legal representatives of Mohd. Hussain because some of his heirs and legal representatives were on record and the left out heirs and legal representatives were sufficiently represented by the other heirs on record. Accordingly, the first question, as posed hereinabove, is decided in favour of the present respondents.
4. We may n
