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Rangubai Kom Shankar Jagtap Vs. Sunderabai Bhratar Sakharam Jedhe and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1965SC1794; 1965MhLJ769(SC); [1965]3SCR211
ActsCode of Civil Procedure (CPC), 1908 - Order 26, Rule 14 - Order 22, Rule 3
AppellantRangubai Kom Shankar Jagtap
RespondentSunderabai Bhratar Sakharam Jedhe and ors.
Cases ReferredShankaranaraina Saralaya v. LaxmiHengsu A.I.R.
Excerpt:
.....the said petition the petitioner gave two reasons for condoningthe delay, namely, (i) the petitioner is a poor widow living in poona with herdaughters and there is no male member in the family of the petitioner to lookafter the proceedings, and (ii) after the preliminary decree in the proceedingsfor the determination of the mesne profits, the plaintiffs brought the heirsand legal representatives of the deceased 7th respondent on record within thetime prescribed and as the legal representatives were brought on record at onestage of the suit, no question of abatement would arise in respect of theappeal. 4. the next question raised is an interesting one of law. a combined reading oforder xxii, rules 3, 4 and 11, of the code of civil procedure shows that thedoctrine of abatement applies.....ordersubba rao, j. 1. these are two applications, one for the substitution of the legalrepresentatives of respondent no. 7 in civil appeal no. 430 of 1963 on the fileof this court and the other for the condonation of delay in filing the firstapplication. 2. the first question is whether there is sufficient ground for excusing thedelay in filing the application for bringing the legal representatives of the7th respondent on record. the facts are as follows : sakharam maruti jedhe andothers filed special suit no. 10 of 1964 in the court of the civil judge,senior division, poona, against rangubai kom shanker jagtap for possession ofthe plaint-schedule property and for mesne profits and obtained a decreetherein. against the said decree defendant preferred an appeal to the highcourt of bombay......
Judgment:
ORDER

Subba Rao, J.

1. These are two applications, one for the substitution of the legalrepresentatives of respondent No. 7 in Civil Appeal No. 430 of 1963 on the fileof this Court and the other for the condonation of delay in filing the firstapplication.

2. The first question is whether there is sufficient ground for excusing thedelay in filing the application for bringing the legal representatives of the7th respondent on record. The facts are as follows : Sakharam Maruti Jedhe andothers filed Special Suit No. 10 of 1964 in the Court of the Civil Judge,Senior Division, Poona, against Rangubai Kom Shanker Jagtap for possession ofthe plaint-schedule property and for mesne profits and obtained a decreetherein. Against the said decree defendant preferred an appeal to the HighCourt of Bombay. The High Court by its judgment dated April 8, 1959, dismissedthe appeal. The defendant filed an application for special leave to prefer anappeal to this Court and the same was granted on June 16, 1959. The appeal wasadmitted on July 27, 1961. Between these two dates, on November 12, 1959, the7th respondent, Keshavarao Marutirao Jedhe died. Thereafter, on March 7, 1964,the defendant filed Civil Application No. 1118 of 1964 in the High Court ofBombay for bringing on record the legal representatives of the 7th respondentand for necessary certificate to that effect. On August 11, 1964, a DivisionBench of the High Court granted the certificate. On February 19, 1964, thedefendant filed in this Court Civil Miscellaneous Petition No. 2401 of 1964 forbringing on record the legal representatives of the 7th respondent and onOctober 8, 1964, filed Civil Miscellaneous Petition No. 2402 of 1964 forcondoning the delay of 4 years and 19 days in filing the aforesaid firstpetition. In the said petition the petitioner gave two reasons for condoningthe delay, namely, (i) the petitioner is a poor widow living in Poona with herdaughters and there is no male member in the family of the petitioner to lookafter the proceedings, and (ii) after the preliminary decree in the proceedingsfor the determination of the mesne profits, the plaintiffs brought the heirsand legal representatives of the deceased 7th respondent on record within thetime prescribed and as the legal representatives were brought on record at onestage of the suit, no question of abatement would arise in respect of theappeal. The respondent filed a counter-affidavit pointing out that there wereno grounds for excusing the inordinate delay, that the appellant had beenconducting this long drawn litigation from the year 1946, that she had ason-in-law who was helping her, that the deceased was a prominent man of Poonawhose death was published in all the newspapers and that the appellant wasliving in the same locality and she must have had knowledge of his death soonafter it occurred. It was further pleaded that the fact that the legalrepresentatives of the 7th respondent were brought on record in the finaldecree proceedings could not in law prevent the abatement of the appeal, ifthey were not brought on record in the appeal in time.

3. Under O. XVI, r. 14, of the Supreme Court Rules, 1950, an application tobring on record the legal representatives of a deceased appellant or respondentshall be made within 90 days of the death of the said appellant or respondent.Under the proviso thereto, in computing the said period the time taken inobtaining a certificate from the High Court shall be excluded. Even if the saidtime is excluded, there will be a delay of about 3 1/2 years in filing theapplication to bring the legal representatives of the deceased 7th respondenton record. From the counter-affidavit filed by the respondents it is clear thatthe 7th respondent was a prominent citizen of Poona and the fact of his deathwas published in all newspapers; and the petitioner resides very near the placewhere the 7th respondent was living. She has been conducting this litigationfrom the year 1946 and was in contact with her Advocates from time to time inconnection with the appeal. She has also a son-in-law who is helping her in thelitigation. She had also the knowledge of the fact that the legalrepresentatives of the 7th respondent were brought on record in the finaldecree proceedings. In the circumstances the fact that she is an illiteratewoman cannot possibly be a ground for excusing this inordinate delay inbringing the legal representatives of the 7th respondent on record in theappeal. We, therefore, hold that there is no sufficient ground for excusing thedelay in bringing the legal representatives of the 7th respondent on record.

4. The next question raised is an interesting one of law. From the aforesaidnarration of facts it will be seen that the legal representatives of the 7threspondent were brought on record within the prescribed time in the finaldecree proceedings. The question is whether it would enure for the benefit ofthe appeal; that is to say whether by reason of that fact there is no abatementof the appeal.

5. The relevant provisions of the Supreme Court Rules, 1950, reads thus : Wehave already given the gist of O. XVI, r. 14 of the said Rules. Rule 14-Athereof reads :

'The provisions of Order XXII of the Code relatingto abatement and of Article 171 in the First Schedule to the Indian LimitationAct, 1908 (IX of 1908), shall, so far as may be applicable, apply to appealsand proceedings under rule 12 and rule 13 in the High Court and in the SupremeCourt.'

6. Rule 14-A by reference incorporates the rules of abatement in the Code ofCivil Procedure and also Art. 171 in the First Schedule to the IndianLimitation Act in the Supreme Court Rules. Under O. XXII, Rules 3 and 4 of theCode of Civil Procedure, if the plaintiff or the defendant dies and the rightto sue does not survive to the surviving plaintiff or against the survivingdefendant, as the case may be, his legal representatives shall be brought onrecord within the prescribed time; and where within the time limited by law noapplication is made the suit shall abate so far as the deceased plaintiff is concernedor against the deceased defendant, as the case may be. Under r. 11 thereof,'in the application of this Order to appeals, so far as may be, the word'plaintiff' shall be held to include the appellant, the word'defendant' a respondent, and the word 'suit' an'appeal'. The result is that for the purpose of abatement a suit andan appeal are treated as different proceedings and the suit or the appeal, asthe case may be, abates if the legal representatives of the deceased plaintiffor defendant are not brought on record within the time prescribed. Under Art.171 of the First Schedule to the Limitation Act, an application to set aside anorder of abatement shall be made within 60 days from the date of abatement. Theresult of these provisions is that if an application to bring on record thelegal representatives of a respondent is not made within 90 days from the dateof death of the said respondent, the appeal abates; but an application to setaside that abatement can be made within 60 days from the date of abatement.

7. But, if by reason of the fact that the legal representatives of thedeceased 7th respondent were brought on record in the final decree proceedings,there was no abatement, this Court no doubt will exercise its discretionliberally in condoning the delay in not formally getting the legalrepresentatives of a deceased party recorded in appeal in time.

8. The main contention therefore, is that by reason of the fact that theywere brought on record in the final decree proceedings, there was no abatementof the appeal.

9. It is said that the final decree proceeding is a stage in the suit andthe appeal is another stage in the suit and, therefore, the bringing on recordof the legal representatives in one stage of the suit will enure for all stagesof the suit including the appeal. This conclusion, the argument proceeds, flowsfrom the reasoning of the judgment of the Judicial Committee in Brij InderSingh v. Kanshi Ram . The relevant facts of thatcase were these : Pending a suit an application was made for directing a partyto produce certain books and that was ordered by the District Judge. Thereafteran application was made to the Chief Court to revise the order of the DistrictJudge. Pending the revision the plaintiff and the 2nd defendant died. Withinthe prescribed time their legal representatives were brought on record in therevision. Subsequently that revision was dismissed as withdrawn. The legalrepresentatives of the plaintiff and the 2nd defendant were not brought onrecord in the suit within the time prescribed. The question was whether thesuit had abated. The Judicial Committee held that the suit did not abate andthe following reasons were given for that view :

'The plaintiff as representative of the originalplaintiff, and the defendant's representatives of Joti Lal, had been introducedin the Chief Court. No doubt that was only done in the course of aninterlocutory application as to the production of books. But the introductionof a plaintiff or a defendant for one stage of a suit is an introduction forall stages, and the prayer, which seems to have been made ab majorem cautelam,by the plaintiff, in his application to the District Judge Prenter under s.365, was superfluous and of no effect. Coates, the judgment debtor, was onlyformally called, and the non-presence of his representatives would afford noground for the abatement of the suit.'

10. This judgment is an authority for the position that if the legalrepresentatives of a deceased plaintiff or defendant are brought on record inan appeal or revision from an order made in the suit, that would enure for allsubsequent stages of the suit. The same principle was sought to be extended ina Madras decision to a cross appeal : see Shankaranaraina Saralaya v. LaxmiHengsu A.I.R. 1931 Mad. 277. There, two appeals were independently filedagainst the decree in a suit - one was filed by the plaintiff and the other bythe defendant. The plaintiff-appellant died and in the appeal filed by him hislegal representatives were brought on record in time, whereas it was not sodone in the appeal filed by the defendant-respondent. It was argued that byreason of the fact that the legal representatives of the plaintiff were broughton record in the appeal filed by him there was no abatement in the appeal filedby the defendant. The Court negatived the contention and when the aforesaiddecision of the Privy Council was cited, it was distinguished on the followinggrounds :

'Their Lordships have held that the introduction ofa plaintiff or a defendant for one stage of a suit is an introduction for allstages. When the subject-matter of the interlocutory application was pending inthe appellate Court it was deemed to be one stage of the suit and therefore therewas no need to put in a fresh application at a further stage of the suit whenit came on for trial before the first Court. Can it be said in the present casethat what was done in one appeal could enure for the benefit of another appealunless the latter appeal can be deemed to be a continuation or a further stageof the appeal in which the legal representatives were brought on record I amconstrained to say that it is difficult to extend the principle of the decisionof the Privy Council to the facts of this case.'

11. This decision accepts the principle laid down by the Privy Council butdistinguishes the case before it on the ground that the interlocutory appeal isnot a continuation or a further stage of the appeal in which the legalrepresentatives were brought on record. Many other decisions were cited at theBar, but they only support the position that in bringing the legalrepresentatives of a deceased party on record in one appeal will not enure forthe benefit of a cross appeal.

12. Let us now consider the question on principle. A combined reading ofOrder XXII, Rules 3, 4 and 11, of the Code of Civil Procedure shows that thedoctrine of abatement applies equally to a suit as well as to an appeal. In theapplication of the said Rules 3 and 4 to an appeal, instead of'plaintiff' and 'defendant', 'appellant' and'respondent' have to be read in those rules. Prima facie, therefore,if a respondent dies and his legal representatives are not brought on record withinthe prescribed time, the appeal abates as against the respondent under r. 4,read with r. 11, of O. XXII of the Code of Civil Procedure. But there isanother principle recognized by the Judicial Committee in the aforesaiddecision which softens the rigour of this rule. The said principle is that ifthe legal representatives are brought on record within the prescribed time atone stage of the suit, it will enure for the benefit of all the subsequentstages of the suit. The application of this principle to different situationswill help to answer the problem presented in the present case. (1) A filed asuit against B for the recovery of possession and mesne profits. After theissues were framed, B died. At the stage of an interlocutory application forproduction of documents, the legal representatives of B were brought on recordwithin the time prescribed. The order bringing them on record would enure forthe benefit of the entire suit. (2) The suit was decreed and an appeal wasfiled in the High Court and was pending therein. The defendant died and hislegal representatives were brought on record. The suit was subsequentlyremanded to the trial Court. The order bringing the legal representatives onrecord in the appeal would enure for the further stages of the suit. (3) Anappeal was filed against an interlocutory order made in a suit. Pending theappeal the defendant died and his legal representatives were brought on record.The appeal was dismissed. The appeal being a continuation or a stage of thesuit, the order bringing the legal representatives on record would enure forthe subsequent stages of the suit. This would be so whether in the appeal thetrial Court's order was confirmed, modified or reversed. In the above 3illustrations one fact is common, namely, the order bringing on record the legalrepresentatives was made at one stage of the suit, be it in the suit or in anappeal against the interlocutory order or final order made in the suit, for anappeal is only a continuation of the suit. Whether the appellant order confirmsthat of the first Court, modifies or reverses it, it replaces or substitutesthe order appealed against. It takes its place in the suit and becomes a partof it. It is as it were the suit was brought to the appellate Court at onestage and the orders made therein were made in the suit itself. Therefore, thatorder enures for the subsequent stages of the suit.

13. But the same legal position cannot be invoked in the reverse or conversesituation. A suit is not a continuation of an appeal. An order made in a suitsubsequent to the filing of an appeal at an earlier stage will move forwardwith the subsequent stages of the suit or appeals taken therefrom; but itcannot be projected backwards into the appeal that has already been filed. Itcannot possibly become an order in the appeal. Therefore, the order bringingthe legal representatives of the 7th respondent on record in the final decreeproceedings cannot enure for the benefit of the appeal filed against thepreliminary decree. We, therefore, hold that the appeal abated so far as the7th respondent was concerned.

14. In the result, the petitions are dismissed.

15. Petitions dismissed.


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