Ramasamy Udayar v. Karuppayee Ammal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On 18.07.2019 Pronounced On 30.07.2019

CORAM

THE HONOURABLE MR.JUSTICE C.SARAVANAN C.R.P.(NPD).No.25 of 2015 and M.P.No.1 of 2015 1.Ramasamy Udayar 2.Govindasamy Udayar .. Petitioners vs Karuppayee Ammal (died) 1.Rayappa Udayar 2.Ponnammal 3.Rajeswari .. Respondents Prayer: Civil Revision Petitions filed under Section 115 of C.P.C., to set aside the fair and decreetal order dated 09.10.2014 passed by the District Munsif cum Judicial Magistrate, Tittakudi made in E.A.No.24 of 2014 in E.P.No.22 of 2013 in O.S.No.58 of 1996. For Petitioners : Mr.S.V.Jayaraman Senior Counsel for Mr.R.Agilesh For Respondents : Ms.Hema Sampath Senior Counsel for Ms.R.Meenal

O R D E R

The petitioners are aggrieved by the impugned fair and decreetal order dated 09.10.2014 passed by the District Munsif Cum Judicial Magistrate Court at Tittakudi in E.A.No.24 of 2012 in E.P.No.22 of 2013 in O.S.No.58 of 1996.

2. By the impugned order, the court has dismissed the above application filed under Section 47 of the CPC by the petitioners.

3. O.S.No.58 of 1996 was filed by the sole plaintiff Karuppayee Ammal (since deceased during the pendency of second appeal in S.A.No.398 of 2003 before this court) against the petitioners before the said court. The said suit was filed for a declaration and for recovery of possession of the suit schedule property from the petitioners.

4. The suit was decreed on 16.07.2001. Aggrieved by the same, the petitioners had filed first appeal before the Principal Sub- Court, Virudhachalam in A.S.No.46 of 2001. The said appeal was allowed in favour of the petitioners by an order dated 04.07.2002.

5. Aggrieved by the decision of the court in A.S.No.46 of 2001, the said Karuppayee Ammal (sole plaintiff) filed S.A.No.398 of 2003 before this court. During the pendency of S.A.No.398 of 2003 before this court, the said Karuppayee Ammal (the appellant/sole plaintiff) died on 23.10.2007.

6. The respondents who are the legal representatives of the said Karuppayee Ammal failed to inform the counsel about the death of the said Karuppayee Ammal. The respondents also did not bring the same to the notice of the court though they are also related to the late Karuppayee Ammal. Under these circumstances, the second appeal was taken up for hearing and disposed on merits on 17.02.2010.

7. S.A.No.398 of 2003 was allowed. The order passed by the Principal Sub- Court Virudhachalam in A.S.No.46 of 2001 was set aside by this Court in S.A.No.398 of 2003. Thus, the decree passed by the Trial Court stood re-affirmed.

8. Under these circumstances, the petitioners herein filed Review Application No.48 of 2010 before the learned Judge who passed the order dated 17.02.2010 in S.A.No.398 of 2003. The

Review Application was filed on the ground that the appellant/plaintiff Karuppayee Ammal had died on 23.10.2007 and therefore the appeal had abated in terms of Order 22 Rule 3 (2) of CPC read with Order 22 Rule 11 of CPC.

9. While disposing the above Review Application, the court observed that the review application was filed against only the deceased Karuppayee Ammal. After referring to the available case laws on the subject, the court has concluded that review of the judgment can be permitted only under Order 47 read with Section 114 of C.P.C and merely because the appellant/plaintiff Karuppayee has died before the order was passed on 17.02.2010, it cannot be said that there was an error apparent on the face of record to review the judgement. Accordingly, the Review Application was dismissed.

10. After the disposal of the review application, the legal representatives of the said Karuppayee Ammal, the respondents herein filed E.P.No.22 of 2013 to execute the judgment and decree passed by the District Munsif Court in O.S.No.58 of 1996. Earlier, the respondents also filed E.A.No.6 of 2011 to substitute themselves in place of the deceased decree holder/ plaintiff Karuppayee.

11. In the said application, the petitioners remained absent and therefore, an exparte order came to be passed on 15.07.2013. Thereafter, they filed E.P.No.22 of 2013 to execute the judgement and decree passed by the District Munsif Court in O.S No.58 of 1996.

12. In the said execution proceedings, the petitioners herein filed E.A.No.24 of 2014 under section 47 of the Civil Procedure Code to declare that the order dated 17.02.2010 passed in S.A.No.398 of 2003 passed by this Court was a nullity.

13. It was contended that the order passed by the High Court in Second Appeal No.398 of 2003 on 17.02.2010 was a nullity in the eye of law inasmuch as the appeal filed by late Karuppayee Ammal had abated in terms of order 22 Rule 3 (2) of CPC as the respondents did not get themselves impleaded her legal representatives.

14. The Execution Court by the impugned order dismissed the above application filed by the petitioners under section 47 of the Civil Procedure Code on the ground that the Review Application No.48 of 2010 filed by them was dismissed and therefore this Court had not accepted that the order passed by it was a nullity.

15. Aggrieved by the impugned order, the petitioners has been filed the present Civil Revision Petition before this Court.

16. Heard the Learned Senior Counsel Mr.S.V.Jayaraman for the petitioners and the Learned Senior Counsel Mrs. Hema Sampath for respondents.

17. The Learned Senior Counsel for the petitioners brought to my attention to the latest decision of the Honourable Supreme Court rendered in Gurnam Singh Vs Gurbachan Kaur, AIR 2017 SC 2419 and therefore submits that in the light of the above decision, the present Civil Revision Petition deserves to be allowed. In paragraph 22, the court held that an appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly they had applied for setting aside of the abatement under Order 22 Rule 9 of Code of Civil Procedure and made out a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking the condonation of delay in filing the substitution Application under Order 22 Rule 3 and 4 of the said code beyond the statutory period of 90 days.

18. The Learned Senior Counsel for the petitioners therefore submits that in this case the respondents had not taken any steps to get impleaded in S.A.No.398 of 2003 and therefore the order passed by the court on 17.10.2010 in S.A.No.398 of 2003 was a nullity.

19. It was further submitted that merely because the Review Application was dismissed does not ipso facto mean that the order passed in S.A.No.396 of 2003 was not a nullity as it was passed without bringing in legal representatives of the deceased Appellant/plaintiff Karuppayee Ammal under Order 22 Rule 3 of CPC.

20. The Learned Senior Counsel for the petitioners fairly submitted that prior to the above decision, the courts have taken a liberal view that only a decree/order passed against a deceased person alone would be a nullity and not a decree/order passed in favour of a deceased person. He submits that in view of the above decision of the Hon'ble Supreme Court, the impugned order was liable to be set aside.

21. Per contra, the Learned Senior Counsel for the respondents sought to defend the impugned order. It was submitted that the petitioners were also equally guilty of not bringing to the notice of the court regarding the death of the sole appellant Karuppayee Ammal in S.A.No.398 of 2003.

22. The learned Senior Counsel for the respondents further submitted that the petitioners also remained exparte in E.A.No.6 of 2013 for bringing the respondents as legal representatives of the deceased decree holder Karuppayee Ammal in the execution proceeding. The Learned Senior Counsel also submitted that the order passed on 13.04.2010 in Review Application No.48 of 2010 and subsequent order passed in E.A.No.6 of 2013 crystallised the issue on facts and therefore it was not open for petitioners to file a petition under Section 47 of the Civil Procedure Code.

23. The Learned Senior Counsel referred to the few decisions of the courts in support of the respondents. Learned Senior Counsel sought to distinguish the decision of the Hon'ble Supreme Court in Gurnam Singh vs Gurbachan Kaur, AIR 2017 SC 2419 by stating that in the aforesaid case during the pendency of the second appeal both the appellant/Plaintiff and the 2 respondents (D2 and D4) had expired and no application was filed to bring their legal

representatives on record despite same being brought to the notice of the High Court about the death of the appellants and the respondents.

24. There, the second appeal was allowed on 18.05.2010 though the court was aware of the fact that the parties therein had died during the pendency of the second appeal. The High Court however proceeded pass orders in the second appeal and set aside judgment and decree of the trial court which had earlier dismissed the suit for specific performance.

25. Aggrieved by the said order of the High Court, the legal representatives of the 2nd respondent/ 2nd defendant and the 4th respondent/ 4th defendant therein filed the appeal before the Hon'ble Supreme Court.

26. It was therefore submitted that in the above background, the Honourable Supreme Court interfered while passing the above order and therefore the ratio of the said decision cannot be applied universally contrary to the settled position of law.

27. The learned senior counsel for the respondents also referred to the following decisions:-

i) Raddulal Bhurmal and Others vs Mahabirprasad Bisesar Kalwar and Others, 1957 SCC OnLine Bom 152 : AIR 1959 Bom 384.

ii) Abdul Azeez Sahib vs Dhanabagaiammal and others, AIR 1983 MADRAS 5.

iii) Himangshu Bhusan Kar and Others vs Manindra Mohan San, AIR 1954 CALCUTTA 205.

iv) K.V.Gopalan vs Nandini and Others, 2015 SCC OnLine Ker 3409.

v) K.V.Gopalan vs Nandini and Others, 2014 SCC OnLine Ker 28693.

vi) B.K.Basha vs Mohamed Ali & Others, 20183-L.W.90. Vii) Sarwan Singh & Others vs Mohar Singh, dated 05.11.2018 in C.R.No.168 of 2016 passed by the High Court of Himachal Pradesh, Shimla. Viii) Kamlesh Ishwarbhai Patel vs UOI & ORS, 2012 SCC OnLine 3471.

ix) Sambhaji & Others vs Gangabai & Others, (2008) 17 SCC 117.

x) Ashok Transport Agency vs Awadhesh Kumar and Another, (1998) 5 SCC 567.

xi) N.Jayaram Reddy and Another vs Revenue Divisional Officer and Land Acquisition Officer, Kurnoor, (1979) 3 SCC 578.

28. The learned senior counsel for the respondents also refers to the following passages of Hon'ble Mr.Justice Krishna Iyer in Sushil Kumar Sen vs State of Bihar (1975) 3 SCR 942 from paragraph 5 and 6.

The mortality of justice at the hands of law

troubles a Judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. In the present case, almost every step a reasonable litigant could take was taken by the State to challenge the extraordinary increase in the rate of compensation awarded by the civil court. And, by hindsight, one finds that the very success, in the review application, and at the appellate stage has proved a disaster to the party. Maybe, Government might have successfully attacked the increase awarded in appeal, producing the additional evidence there.

But maybes have no place in the merciless consequence of vital procedural flaws. Parliament, I hope, will consider the wisdom of making the Judge the ultimate guardian of justice by a comprehensive, though guardedly worded, provision where the hindrance to rightful relief relates to infirmities, even serious, sounding in procedural law. Justice is the goal of jurisprudence - processual, as much as substantive. While this appeal has to be allowed, for reasons set out impeccably by my learned brother, I must sound a pessimistic note that it is too puritanical for a legal system to sacrifice the end product of equity and good conscience at the altar of processual punctiliousness and it is not too radical to avert a breakdown of obvious justice by bending sharply, if need be, the prescriptions of procedure.

29. I have considered the arguments advanced on behalf of the petitioners and the respondents. A plain reading of Order 22 Rule 3(2) of the Code of Civil Procedure makes it clear that a suit

will abate as against the deceased plaintiff unless legal representatives are brought on record before the expiry of the limitation. A cumulative reading of the above provisions when along with Rule 11 of Order 22 also makes it is clear that the principle contained therein will apply to appeals as well.

30. The facts are not in dispute. On a strict reading of order 22 Rule 3(2) of C.P.C., S.A.No.398 of 2003 had already abated when the order was passed on 17.2.2010 after the death of the sole appellant. However, the Courts have traditionally not treated the order passed in the proceedings as having abated under similar circumstances if favourable orders were passed in favour of the deceased decree holder/plaintiff or appellant as the case may be.

31. In N. Jayaram Reddy v. Revenue Divisional Office, (1979) 3 SCC 578, the Honourable Supreme Court in para 39 summarised position as follows:-

(1) If all legal representatives are not impleaded after diligent search and some are brought on record and if the Court is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the Court, an action would not abate.

(2) If the legal representative is on record in a different capacity, the failure to describe him also in his other capacity as legal representative of the deceased party would not abate the proceeding.

(3) If an appeal and cross-objections in the appeal arising from a decree are before the appellate court and

the respondent dies, substitution of his legal representatives in the cross-objections being part of the same record, would enure for the benefit of the appeal and the failure of the appellant to implead the legal representatives of the deceased respondent would not have the effect of abating the appeal but not vice versa.

(4) A substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order would enure for the subsequent stages of the suit on the footing that appeal is a continuation of a suit and introduction of a party at one stage of a suit would enure for all subsequent stages of the suit.

(5) In cross-appeals arising from the same decree where parties to a suit adopt rival positions, on the death of a party if his legal representatives are impleaded in one appeal it will not enure for the benefit of cross-appeal and the same would abate.

32. The Honourable Supreme Court further observed that " Now, if the object and purpose behind enacting Order 22 Rules 3 and 4 are kept in forefront conclusions 1 to 4 would more or less fall in line with the object and purpose, namely, no decision can be recorded in a judicial proceeding concerning the interests of a party to a proceeding without giving such party or his legal representatives an opportunity of putting forth its/their case.

33. The Hon'ble Supreme Court also observed as follows:-

27. The first limb of this rule audi alteram partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. As a corollary to this rule it is provided in the Code of Civil Procedure that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the deceased party should be brought on record which only means that

suchlegal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. It may be that the legal representatives in a given situation may be personally liable or the estate of the deceased in their hands would be liable and in either case a decision one way or the other, adverse or favourable to them, cannot be recorded unless they are given an opportunity of being heard. Order 22 Rules 3 and 4 codify these procedural safeguards translating into statutory requirement one of the principles of natural justice.

34.

Explaining the above principle, the Court further observed as follows:-

28. If this is the discernible principle underlying Order 22 Rules 3 and 4 it has been demonstrably established by interpretation put on these two rules. Original view was that all legal representatives of a deceased plaintiff or defendant must be substituted on the pain of the action abating. With utmost diligence from a multitude some one may escape notice and the consequent hardship in abatement of action led this Court to assert the principle that where some legal representatives are brought on record permitting an inference that the estate is adequately represented, the action would not abate though it would be the duty of the other side to bring those legal representatives on record who are overlooked or missed even at a later date.

been brought on record, because the impleaded legal representatives sufficiently represent the estate of the deceased and the decision would bind not only those impleaded but the entire state including the interest of those not brought on record. This view has been consistently adopted by this Court in Daya Ram v. Shyam Sundari [AIR 1965 SC 1049 : (1965) 1 SCR 231 : (1966) 1 SCJ 6] ; N.K. Mohammad Sulaiman v. N.C. Mohammad Ismail [AIR 1966 SC 792 : (1966) 1 SCR 937 :

(1967) 1 SCJ 24] ; and Harihar Prasad Singh v. Balmiki Prasad Singh [(1975) 1 SCC 212 : (1975) 2 SCR 932] . The principle deducible from these decisions is that not only the interest of the deceased was adequately taken care of by those who were on record but they had the opportunity to put forth their case within permissible limits. Neither the case of the deceased nor of his successors-in-interest has gone by default. In other words, the principle is that if the deceased had as a party a right to put forth his case, those likely to be affected by the decision on death of the deceased had the same opportunity to put forth their case and even if from a large number having identical interest some are not brought on record those who are brought on record would adequately take care of their interest and the cause in the absence of some such would not abate. In legal parlance this procedure affords an opportunity of being heard in all its ramifications before a decision on the pending lis is taken.

35. All along Order 22 was interpreted in favour of the legal representatives of the deceased plaintiff or appellant even though they were not impleaded before judgment and decree was passed.

36. Judgment and decree passed after the death of the plaintiff without impleading his or her legal representative were held not to be a nullity. This was because audi alteram partem applied and no prejudice was caused to the opposite party in absence of impleading of the legal representatives of the Plaintiff or Appellant at whose instance the case was filed before the Court.

37. However, this position has been reversed by the Honourable Supreme Court in Gurnam Singh vs Gurbachan Kaur, AIR 2017 SC 2419 cited by the Learned Senior Counsel for the petitioner.

38. The plaintiff there had filed suit for specific performance. The trial court had dismissed the suit partly and had merely ordered refund of Rupees 7000/- to the plaintiff. Further appeal filed by the plaintiff was also dismissed. Therefore, the plaintiff filed R.S.A.No.1148 of 1985 before the High Court. During the pendency of the second appeal before the High Court in R.S.A.No.1148 of 1985, the plaintiff and the contesting defendants died.

39. The plaintiff died on 10.05.1994 while the contesting defendants who were respondents 2 and 4 in R.S.A.No.1148 of 1985 died on 06.12.2002 and 19.04.2002. It appears despite same

being brought to the notice of the High Court, no steps were taken to bring the legal representatives of these parties.

40. The High Court however proceeded to pass an order on 18.5.2010 and reversed the judgment of the trial court and that of the 1st appellate court and decreed the suit for specific performance in favour of the deceased appellant/plaintiff against the deceased respondents/defendants who were the contesting the respondents before the High Court in the said appeal. It is in this factual background, the Honourable Supreme Court has passed the above decision.

41.

While giving the relief to the appellants who were the legal representatives of the deceased defendants, the Court has held as follows:

19. In the case at hand, both the aforementioned provisions came in operation because the appellant and the two respondents* expired during the pendency of the second appeal and no application was filed to bring their legal representatives on record. As held above, the legal effect of the non-compliance with Rules 3(2) and 4(3) of Order 22 of the Code, therefore, came into operation resulting in dismissal of second appeal as abated on the expiry of 90 days from 10-5-1994 i.e. on 10-8-1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10-8-1994. Indeed, there was no pending appeal on and after 10-8-1994.

(* before the High Court)

42. When the above observation was made against the order of the Punjab and Haryana High Court in R.S.A.No.1148 of 1985, perhaps the attention of the Hon'ble Supreme Court was not brought to the Punjab and Haryana High Court Amendment to Order 22 of CPC. Sub-Rule 2 and 3 to Order 22 have been substituted vide GSR14/CA.5/1908/S.122/92 on 21.2.1992 with the following clause which reads as under:- "Where within the time-limited by law no application is made under sub-rule (1), the suit shall not abate as against the deceased plaintiff and the judgement may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before death took place, and the contract between the deceased and the pleader in that event shall continue to subsist."

43. If the above provision was brought to the notice of the Hon'ble Supreme Court, perhaps the Hon'ble Supreme Court may have held that the appeal had abated because the contesting respondents before Punjab and Haryana High Court had died and their legal representatives (appellant before the Supreme court) were not impleaded before the Punjab and Haryana High Court. Perhaps, the observation in para- 19 may not have been made.

44. Thus, the Hon'ble Supreme Court has not deviated from the long line of judicial pronouncements that the order passed in absence of the impleading of the legal representatives of the deceased respondents was a nullity. At the same time, the

Honourable Supreme Court has held that the appeal abated at the expiry of 90th day from the date of the death of the Appellant/Plaintiff in the High Court.

45. The said decision of the Honourable Supreme Court has placed reliance on the decision of the Honourable Supreme Court in the following cases particularly the one rendered in Kiran Singh versus Chama Paswan and others AIR 1954 340 wherein it was held that "it is a fundamental principle that a decree passed without the jurisdiction is a nullity and its invalidating could be set up whenever and wherever it is sought to be enforced relied upon, even at the state of execution and even in collateral proceeding. A defect of jurisdiction, whether pecuniary or territorial or whether it is in respect of the subject matter of action, strikes at the very authority of the court to pass any decree, and such a decree cannot be sure even by consent of both the parties".

46. The Supreme Court referred to the following decisions in the last portion of the judgement:- i.

N. Jayaram Reddy v. LAO, (1979) 3 SCC 578 ii. Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567; and iii. Amba Bai v. Gopal [Amba Bai v. Gopal, (2001) 5 SCC 570] ).

iv. Amba Bai v. Gopal, (2001) 5 SCC 570.

47. In Amba Bai vs Gopal, (2001) 5 SCC 570, while dealing with a somewhat similar situation, the court held that "As the second appellant Radhu Lal died during the pendency of the appeal, and in the absence of his legal heirs having taken any steps to prosecute the second appeal, the decree passed by the first appellate court must be deemed to have become final. By virtue of the order passed by the first appellate court, the plaintiff's suit for specific performance was decreed. Failure on the part of the legal heirs of Radhu Lal to get themselves impleaded in the second appeal and pursue the matter further shall not adversely affect the plaintiff decree-holder as it would be against the mandate of Rule 9 Order 22 of the Code of Civil Procedure. The impugned order is, therefore, not sustainable in law and the same is set aside and the appeal is allowed. The executing court may proceed with the execution proceedings. Parties to bear their respective costs.

48. Though several decisions have been cited by the learned senior counsel for the respondents to the buttress the submissions that impleading of the legal representative of the deceased plaintiff/appellant Karupayee Ammal would have not have furthered the case of the petitioners in S.A.398 of 2003, I am constrained to interfere in this Civil Revision Petition with the impugned order in view of the recent decision of the Supreme Court in Gurnam Singh

Vs Gurbachan Kaur AIR 2017 SC 2419 cited by the Learned Senior Counsel for the petitioner settling the issue against the respondent even though on facts no prejudice was caused to the petitioners when S.A.398 of 2003 was disposed by this Court on 17.2.2010.

49. There is nothing that can be done at this stage to uphold the impugned order of the District Munsif Cum Magistrate Court at Tittakudi, in the light of the law laid down by the Honourable Supreme Court in Gurnam Singh Vs Gurbachan Kaur AIR 2017 SC 2419 cited by the Learned Senior Counsel for the petitioner.

50. Though impleading of the legal representative of the respondent would have not have furthered the case of the petitioners in S.A.398 of 2003, here demonstrably strict application of the procedural law in the Civil Procedure Code has acted harshly against the respondents.

51. Therefore, to mitigate the hardship caused to the respondents on account of the technicality and procedure, liberty is given to respondents to explore the possibility of filing appropriate applications before this court in S.A.398 of 2003 to set aside the

C.SARAVANAN.,J.

jen abatement of appeal along with necessary applications and have the appeal re heard .

52. This observation is being made in the light of the oft repeated maxim of the Honourable Supreme Court that procedures are hand maids of justice and not mistress of law. Procedures should always give way for substantive justice.

53. The Present Civil Revision Petition is therefore dismissed with the above observation. No cost.

30.07.2019 Index : Yes/No Internet : Yes/No jen To 1.The District Munsif cum Judicial Magistrate, Tittakudi.

2.The Section Officer, V.R.Section, High Court, Madras.

Pre-Delivery order in C.R.P.(NPD).No.25 of 2015 and M.P.No.1 of 2015

C.R.P.(NPD).No.25 of 2015 C.SARAVANAN.,J.

This case was listed today under the caption "for clarification" at the instance of the learned counsel for the petitioners.

2.This order was pronounced on 30.07.2019. In paragraph No.53 of the order instead of a word "allowed", it was wrongly typed as "dismissed".

3.Therefore, the Registry is directed to substitute the word dismissed with "allowed" in paragraph No.53 and issue fresh copy to the parties.

05.08.2019 jen

C.SARAVANAN.,J.

jen C.R.P.(NPD).No.25 of 2015 05.08.2019