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GUJARAT HIGH COURT
J.B. Pardiwala, J.
Atulbhai Magnaji Dudhrejia —Petitioner
versus
Ghanshyambhai Hirjibhai —Respondent
Misc. Civil Application (For Review) No.1 of 2019 in R/First Appeal No.124 of 2014
Decided on 7.2.2020
For the Petitioner:Mr. Shashwat Shukla with Mr. S.P. Majmudar, Advocates
For the Respondent:Mr. Kirtidev R. Dave and Mr. MIG Mansuri, Advocates
IMPORTANT POINT
Substitution and abatement—Whether non-substitution of L.Rs. of defendants/respondents would abate appeal in toto or only qua deceased defendants/respondents, would depend upon facts and circumstances of an individual case.
Headnote:
Civil Procedure Code, 1908—Order XII Rules 2 and 4—Substitution and abatement— Whether non-substitution of L.Rs. of defendants/respondents would abate appeal in toto or only qua deceased defendants/respondents, would depend upon facts and circumstances of an individual case—Where each one of parties has an independent and distinct right of his own, not interdependent upon one or other, nor parties have conflicting interests inter se, appeal may abate only qua deceased respondent—However, in case, there is a possibility that Court may pass a decree contradictory to decree in favour of deceased party, appeal would abate in toto for simple reason that appeal is a continuity of suit and law does not permit two contradictory decrees on same subject-matter in same suit—Whether judgment/decree passed in proceedings vis-à-vis remaining parties would suffer vice of being a contradictory or inconsistent decree is relevant test.
Held: Therefore, the law on the issue stands crystallised to the effect that whether the non-substitution of L.Rs. of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, would depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-a-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.
Thus, the tests to be applied in a case of the present nature may be summarised as under:
“(i) when the success of the appeal may lead to the Court’s coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court’s passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent
(ii) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the Court; and
(iii) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed.” (Paras 17 and 18)
Result: Application rejected.
JUDGMENT (IA CAV)
J.B. Pardiwala, J.—By this application, the applicants have prayed for the following reliefs:
“[A] Your Lordships may be pleased to allow the present application.
[B] Your Lordships may be pleased to recall judgment and order dated 10.05.2019 passed by this Hon’ble Court in First Appeal NO.10.05.2019 of 2019 (at Annexure-I hereto)
[C] During the pendency and final disposal of the present application Your Lordships may be pleased to stay the implementation, operation and execution of the judgment dated 10.05.2019 passed by this Hon’ble Court in First Appeal No.124 of 2014 (at Annexure-I hereto), and may further be pleased to stay the proceedings of Special Suit No.30 of 2011 pending before the Ld. Senior Civil Judge, Surendranagar.
[D] Such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted.”
2. The subject matter of challenge in the First Appeal No.124 of 2014 was the judgement and order passed by the Principal Senior Civil Judge, Surendranagar dated 30th November 2013 below Exhibit : 45 in the Special Civil Suit No.30 of 2011, by which the Civil Judge rejected the plaint under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure, 1908 [for short, ‘the CPC’] on the ground that the suit instituted by the plaintiffs was time barred. By judgement and order dated 10th May 2019 passed by this Court, the First Appeal No.124 of 2014 came to be allowed. The operative part of the order reads thus:
“23. In the result, this First Appeal succeeds and is hereby allowed. The impugned judgment, order and decree passed by the Principal Senior Civil Judge, Surendranagar dated 30th November, 2013 below Exh.44 in the Special Civil Suit No.30 of 2011 is hereby quashed and set aside.
The Special Civil Suit No.30 of 2011 is revived and is restored to its original file in the Court of the Principal Senior Civil Judge, Surendranagar. The Principal Senior Civil Judge, Surendranagar, shall now proceed with the suit expeditiously in accordance with law.”
3. It is the case of the applicants that during the pendency of the First Appeal No.124 of 2014, three of the legal heirs of Sadhu Magniramji Kashiramji had passed away. The three heirs are : (1) Atul Magniramji Dudhrejia (2) Anil Magniramji Dudhrejia and (3) Mrudulaben Magjiramji Dudhrejia. It is the case of the applicants that this Court proceeded to hear the First Appeal and disposed it of without the legal heirs of the aforesaid three persons being on record.
4 In the aforesaid context, I may reproduce the following averments made in the memorandum of the Miscellaneous Civil Application:
“5. It is respectfully stated and submitted that, thus the respondent nos.1.1 to 1.4 herein preferred a suit being Special Civil Suit No.30 of 2011 before the Ld. Principle Senior Civil Judge, Surendranagar, seeking declaration that they are the owners of the suit property, as well as seeking permanent injunction against the original defendants. It is further submitted that, the respondent nos.1.1 to 1.4 herein also sought cancellation of registered sale deeds dated 20.04.1985, 21.01.2000, and 30.01.2010. It is further’ submitted. That, of deceased Sadhu Magniramji legal heirs Kashiramji (since deceased applicant nos.1.1, 1.3 and 1.4 and applicant no.1.2 herein) preferred an application below Exh.44 of rejection of the plaint as per the provisions of Order VII Rule 11(d) of the Code of Civil Procedure, 1908, primarily on the ground that the suit is barred by the law of limitation. It is further submitted that, the Ld. Trial Court vide order dated 30.11.2013 allowed the aforesaid application, and rejected the plaint on the ground that the suit preferred by the plaintiffs was time barred.”
“7. It is respectfully stated and submitted that, during the pendency of the aforesaid First Appeal, Atulbhai Magniramji Dudhrejia i.e. respondent no.1.1 in the captioned First Appeal, passed away on 15
