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High Court Of Madhya Pradesh
S.D. Jha, J.
Doongarji s/o Ramji Deceased through L.R.Ramlal
Versus
Indira Bai w/o Ramchandra Rao
S.A. 265 of 1982 Of
Decided On : Dec 09,1989
ABATEMENT OF APPEAL - M. P. ACCOMMODATION CONTROL ACT, 1961 - APPLICABILITY TO RAJENDRA NAGAR - INTERMEDDLER - RIGHT TO PROSECUTE APPEAL - LEGAL REPRESENTATIVE - DEFINITION - O. XXII, R. 9 (1) AND 11 OF THE CODE OF CIVIL PROCEDURE, 1908.
Fact of the Case:
Appellant Dongarji died during the pendency of the appeal. Ramlal, claiming to be an adopted son of Dongarji, applied to be brought on record as his legal representative. The trial court found that Ramlal was not legally adopted by Dongarji. The respondent objected to Ramlal's application, arguing that the appeal had abated. The court directed the trial court to hold an enquiry about the allegations in Ramlal's application.
Finding of the Court:
The court held that Ramlal was not the adopted son of Dongarji and therefore, he was not his legal representative. The court also held that Ramlal, as an intermeddler, could not prosecute the appeal. The court further held that the appeal had abated.
Issues: 1. Whether Ramlal was the adopted son of Dongarji and therefore, his legal representative? 2. Whether Ramlal, as an intermeddler, could prosecute the appeal? 3. Whether the appeal had abated?
Ratio Decidendi: 1. The court held that Ramlal was not the adopted son of Dongarji based on the findings of the trial court. The court relied on the decision in Kalyanmal Mills Ltd. v. Wall Mohammad, where it was held that an intermeddler cannot be substituted as a legal representative merely on the strength of his unlawful trespass. He has to establish his right of suit independently of such unlawful possession. 2. The court held that Ramlal, as an intermeddler, could not prosecute the appeal. The court relied on the definition of legal representative in sub-section 11 of Section 2 of the Code of Civil Procedure, 1908, which includes a person who intermeddles with the estate of the deceased. However, the court also held that the definition cannot be read in isolation and it would have to be read with precedents on the point. The court cited the decision in Kalyanmal Mills Ltd. v. Wall Mohammad, where it was held that an intermeddler cannot be substituted as a legal representative merely on the strength of his unlawful trespass. He has to establish his right of suit independently of such unlawful possession. 3. The court held that the appeal had abated. The court relied on Rule 9 (1) of O. XXII of the Civil Procedure Code, which provides that where a suit abates under the order, no fresh suit shall be brought on the same cause of action. The court also relied on Rule 11 of O. XXII of the Civil Procedure Code, which provides that in the application of this order to appeals, so far as may be, the word plaintiff shall be held to include an appellant, the word defendant a respondent, and the word suit an appeal.
Final Decision: The court held that the appeal had abated and dismissed the appeal.
( 1. ) THE short question arising for determination in this appeal is, whether intermeddler Ramlal in no way related to deceased appellant-tenant Dongarji can avoid abatement of the appeal.
( 2. ) THIS second appeal by order dated 26-6-1982 was admitted for final hearing on the following substantial question of law:
"whether the Appellate Court committed an error of law in holding that the provisions of the M. P. Accommodation Control Act, 1961 are not applicable to Rajendra Nagar even after its inclusion in the Corporation of Indore ? "
( 3. ) ORIGINAL defendant/appellant Dongarji after presenting this Appeal died on 2-6-1987 survived by his son Shantilal s/o Dongarji aged 60 years residing at Bombay-9 (Maharashtra ). Shantilal did not make any application to be brought on record as Legal Representative of the deceased-appellant. Ramlal presented an application (IA No. 2060/87) dated 15-7-1987 claiming to be an adopted son of deceased Dongarji and also having performed his last rites. The application was opposed by the respondent by reply dated 7-8- 1987. In the reply it was submitted that Randal is not adopted son of deceased Dongarji and his natural son Shantilal has not applied to be brought on record as Legal Representative of deceased Dongarji. The appeal in the circumstances, was submitted to have abated. This Court by order dated 13-10-1988 directed the trial Court to hold an enquiry about allegations in the application under O. XXII, Rule 3 of the Code of Civil Procedure presented by Rarnlal and submit its report. The Trial Court has submitted its report on 13-12-1988. This report states that Ramlal could not be legally adopted by Dongarji, who had his son Shantilal alive and there were no ceremonies of adoption of Ramlal and there was also no giving or taking. Findings given by the trial Court in this report were not challenged by Shri Dave, learned counsel representing Ramlal before this Court.
( 4. ) SHRI Dave submitted that two Courts below had found against plaintiff respondent as regards grounds of. bona fide requirement but had decreed eviction from the suit accommodation only on the ground that protection Under Section 12 (1) of the M. P. Accommodation Control Act, 1961 was not available to deceased-defendant Dongarji as M. P. Accommodation Control Act, 1961 was not applicable to Rajendra Nagar, suburb of Indore, where suit accommodation is situated. In doing so, 1st Appellate Court had followed earlier decision of this Court in S. A. No. 258/80; Nathibai v. Premchand decided on 30-10-1981. The ground, however, has been set at rest by the judgment of the Supreme Court in C. A. No. 3393/81; Premchand v. Nathobai decided on 207-1989, in the same case. The Supreme Court held M. P. Acco. Control Act, 1961 as being applicable to Rajendra Nagar. Shri Dave, learned counsel submitted that though Ramlal was not adopted son of deceased-defendant Dongarji, he was living with him and the Trial Court found him to be a member of Dongarjis family. The two Courts had found against plaintiff-respondent on the ground of his bona fide need. He submitted that the suit must, therefore, fail and Ramlal allowed residence in the suit-accommodation. Shri Dave, learned counsel referred to definition of Legal Representative contained in sub-section 11 of Section 2 of the Code of Civil Procedure, 1908 and emphasized that it includes a person who intermeddles with the estate of the deceased. He also submitted that as Ramlal had been by order dated 6-1-1989 allowed to be brought on record as intermeddler, he had a right to present the appeal had not abated.
( 5. ) O. XXII of the Code of Civil Procedure deals with abatement of suits. Rule 9 (1) of O. XXII of the Civil Procedure Code inter alia provides that where a suit abates under the order, no fresh suit shall be brought on the same cause of action. Rule 11 of O. XXII of Civil Procedure Code that in the application of this order to appeals, so far as may be, the word plaintiff shall
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