Rengathan v. Santhanapakiammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 18.02.2008CORAM:THE HON'BLE MR. JUSTICE K.MOHAN RAMSecond Appeal No.1511 of 1993and C.M.P.No.4214 of 20061.Rengathan2.Rajangam3.Govindarasu4.Elayaperumal.. Appellants (Defendants)-Vs-Santhanapakiammal.. Respondent (Plaintiff)APPEAL against the judgment and decree of the learned SubordinateJudge, Virudhachalam, dated 08.07.1993 and made in A.S.No.55 of 1991 onthe file of the District Munsif Court, Virudhachalam (OS No.922/84,DMC, Vridhachalam).For Appellants: Mr.J.Ramakrishnan, for Mr. Sarvabhauman AssociatesFor Respondent: Mrs. Hema Sampath, Seniolr Advocate, for, Mr. R.Subramanian - - -J U D G M E N TThe first respondent herein filed a suit in O.S.No.922/1984against the petitioners 2 to 4 (appellants 2 to 4) and one Elayaperumal(4th Appellant) for declaration and recovery of possession of theproperty measuring to an extent of 1.08 Acre in Survey No.127-B/10,Chinnaparur Village, Vridhachalam Taluk. The said suit was decreed bythe trial Court and the first appeal in A.S.No.55 of 1991 was dismissedby the Sub Court, Vridachalam and as against that, the present secondappeal has been filed and the same was admitted on 06.12.1993. Pendingthe second appeal, the fourth appellant Elayaperumal died on 02.10.1998leaving behind the respondents 2 and 3 herein as his legal heirs andaccording to the petitioners, the respondents 2 and 3 are the onlylegal representatives of the deceased fourth appellant. Since therespondents 2 and 3 were not brought on record in time, the appealabatted as far as the deceased Elayaperumal (4th appellant) isconcerned. After a delay of 2261 days, the above petition has beenfiled by the first petitioner claiming to have purchased the suitproperty under three sale deeds dated 30.01.1984, 08.06.1994 and09.07.1997 from the second petitioner, 4th petitioner and the https://hcservices.ecourts.gov.in/hcservices/ respondents 2 and 3 respectively and as such, claims to have steppedinto the shoes of the petitioners 2 to 4. According to the petitioner,the right to continue the proceedings has devolved on him and on thatground seeks to get himself impleaded as the 5th appellant in the abovesecond appeal. The said petition is opposed by the 1st respondent.2.In the counter affidavit filed by the first respondent it iscontended as follows:i)The fourth appellant Elayaperumal died on 02.10.1998 but nopetition was filed in time to bring on record his legal representativesand hence the second appeal has abated on the expiry of 90 days from02.10.1998. The decree passed in the suit is a joint decree againstall the appellants and hence there is no second appeal pending as ontoday. Therefore, the above petition to implead the first petitioner isnot maintainable.ii)It is further stated that the first petitioner has not filedthe copy of the sale deeds and even otherwise the said sale deeds donot convey the right of all the owners and as such he cannot seek tocome on record as a matter of right as the right to sue does notsurvive to him.iii)The legal representatives of the fourth appellant as well asthe other appellants have lost interest in the litigation and they havenot taken care to file any petition to set aside the abatement causedby the fourth appellant's death. When the originaldefendants/appellants are not interested, the first petitioner claimingto be an alienee from the fourth appellant cannot be permitted to gethimself impleaded. It is further stated that the long delay has notbeen properly explained.3.Heard both sides.4.The learned counsel for the petitioner submitted that the firstpetitioner as the purchaser of the suit property during the pendency ofthe suit is entitled to be impleaded as a party to the second appeal.5.In support of the said contention, he relied upon variousdecisions of the Apex Court. In a decision reported in AIR 1975 SC2159 (Rikhu Dev Vs. Som Dass), the apex Court has observed that Order22 Rule 10 is based on the principle that trial of a suit cannot bebrought to an end merely because the interest of a party in the subjectmatter of the suit has devolved upon another during the pendency of thesuit but that suit may be continued against the person acquiring theinterest with the leave of the court. When a suit is brought by oragainst a person in a representative capacity and there is a devolutionof the interest of the representative, the rule that has to be appliedis Order 22, Rule 10 and not Rule 3 or 4, whether the devolution takesplace as a consequence of death or for any other reason. https://hcservices.ecourts.gov.in/hcservices/

6.Further, he placed reliance on the decision reported in 2001(6)SCC 534 (Howrah Daw Mangla hat Vs. Pronab Kumar Daw) wherein it hasbeen held that the person upon whom the interest has devolved may alsoapply for such a leave so that his interest may be properly representedas the original party, if it ceased to have an interest in the subject-matter of dispute by virtue of devolution of interest upon anotherperson, may not take interest therein, in ordinary course, which is butnatural, or by colluding with the other side. A prayer for leave can bemade not only by the person upon whom interest has devolved, but alsoby the plaintiff or any other party or person interested. Further, heplaced reliance on the decision reported in 2004 (7) SCC 354 (ShahazadaBi and others Vs. Halimabi), and in that decision the Apex Court hasheld that the question as to whether the decree is joint andinseverable or joint and severable has to be decided, for the purposesof abatement, with reference to the fact as to whether the decreepassed in the proceedings vis-a-vis the remaining parties would sufferthe vice of inconsistent decrees or conflicting decrees. A decree canbe said to be inconsistent or contradictory with another decree onlywhen two decrees are incapable of enforcement and enforcement of onewould negate the enforcement of the other. 7.The learned counsel for the petitioner further relied on adecision reported in 2005(1) SCC 787 (Bhanu Kumar Jain Vs. ArchanaKumar and another) wherein while considering the locus standi of anassignee to continue the proceedings, the Apex Court has observed thatthe appellant could have been substituted in place of plaintiff interms of Order 22 Rule 10 and even if not substituted in terms of thesame, an application under Order 1 Rule 10 would have been maintainableas the appellant became the legal representative of the originalplaintiff. Further in a decision reported in 2005 (3) Law Weekly 728(Amit Kumar Shaw and another Vs. Farida Khatoon and another) whileconsidering the right of an alienee to get himself impleaded in apending second appeal, the Apex Court has observed that the appellantswho are transferees pendente lite should be made as parties to thepending Second Appeals as prayed for by them as the presence of theappellants are absolutely necessary in order to decide the appeals onmerits.8.Countering the said submissions made by the learned counsel forthe petitioner, Mrs.Hema Sampath, learned Senior Counsel submitted thatsince the appeal as against the 4th appellant had abated and the decreebeing a joint decree, the entire appeal had abated. The learned SeniorCounsel further submitted that as on date as no suit is pending, thepresent petition to implead the first petitioner as 5th appellant isnot maintainable. In support of her contentions, the learned Seniorcounsel placed reliance on the following decisions:9. In AIR 1977 Kerala 83 (Full Bench) (Goutami Devi Vs. MadhavanSivarajan), it is observed as under:"7.It seems to us to be plain from the scheme of Order https://hcservices.ecourts.gov.in/hcservices/ XXII that an assignee can make an application for leave tocontinue the suit so long as there is a suit, so far itconcerns the assignee, on the file of the court. In a suitwhich is not subsisting there is no scope for seekingcontinuance. It is only logical that in a case where thesuit has abated the assignee cannot thereafter seek to beadded as a party to the action. That this is the scheme isevident from an examination of the Order XXII of the Code ofCivil Procedure. If the assignee seeks to be impleaded inthe proceedings before the suit abates and the legalrepresentatives also seek to be impleaded whether the courtwould allow the assignee to come on record is a differentquestion. That will depend upon consideration of manymatters. But the assignee cannot claim to come on record as amatter of right since leave is not to be granted as a matterof course. We are not concerned with such a situation hereand we need not got into this question further for thepurpose of this appeal.26.But the assignee can obtain leave only to continue asuit. If the suit has already abated, there is no suit whichmay be continued. The abatement terminates the suit anddisposes of the plaintiff's claim as if the suit has beendismissed without a hearing. Leave to continue a suit cannotbe given after the suit has terminated. It cannot be given ifthe suit has already been decreed or dismissed for default ofappearance of the plaintiff. Similarly, leave cannot begiven if the suit has already abated. The suit abatesautomatically in the absence of any application under OrderXXII, Rule 3 within ninety days and a further order declaringthat the suit has abated is not necessary. The assignee isbound by the abatement and by proceedings had in the suitbefore his intervention."10. In AIR 1959 Calcutta 368 (V 46 C 102) (Kedarnath Kanoria andothers Vs. Khaitan Sons and Co.,) the Apex Court has observed asfollows:"25.It is true that the death of the assignor plaintiffsimpliciter does not take away the right of the assignee toapply under Order XXII, rule 10 of the Code of CivilProcedure. By order XXII, rule 1 the death of the plaintiffof itself does not cause the suit to abate. Before the suithas abated the assignee may apply for and obtain leave tocontinue the suit. He may also, if he chooses, apply forsubstitution of the legal representative of the deceasedplaintiff. In a proper case, the order for leave to continuethe suit may be dated nune pro tune as of the date when theapplication was made. If necessary, the application for leaveto continue the suit may be treated as being in substance a https://hcservices.ecourts.gov.in/hcservices/ composite application for substitution of the legalrepresentatives of the deceased plaintiff and thereafter ofthe applicant. On obtaining the necessary leave the assigneebecomes the new plaintiff and the suit cannot thereafter abateon account of the death of the original plaintiff.26.But the assignee can obtain leave only to continue asuit. If the suit has already abated, there is no suit whichmay be continued. The abatement terminates the suit anddisposes of the plaintiff's claim as if the suit has beendismissed without a hearing. Leave to continue a suit cannotbe given after the suit has terminated. It cannot be given ifthe suit has already been decreed or dismissed for default ofappearance of the plaintiff. Similarly, leave cannot be givenif the suit has already abated. The suit abates automaticallyin the absence of any application under Order XXII, rule 3within ninety days and a further order declaring that the suithas abated is not necessary. The assignee is bound by theabatement and by proceedings had in the suit before thisintervention..."11. In AIR 1936 Patna 123 (Gobardhan Muhkharji Vs. SaligramMarwari and others) it is observed as follows:"Now comes the question as to whether the appellant canget leave to continue the suit under Order 22, Rule 10. Thelearned Subordinate Judge relying upon certain observationsof the Privy Council in 1 Pat 581(1) and on the decision in1925 Mad 1166(2) has held that that rule applies to cases inwhich there has been an assignment by a party who is alreadyon the record. The observations of the Privy Council do notapply very much to the facts of the present case, but theMadras decision which is of a Single Judge, is exactly inpoint and if I may say so, I entirely agree with the viewtaken there and in my opinion the learned Subordinate Judgehas rightly rejected the application. R.10 empowers the Courtto give leave to a person who has taken an assignment from aparty to continue the suit. The "party" there obviouslyrefers to a party already on the record. Now in thisparticular case there has been no substitution of the legalrepresentative of the deceased plaintiff Matangini. Herdaughter Priyasakhi seems, as I have said, to be unwilling tocome up and prosecute the suit for reasons of her own. Itwill be defeating the object of the law if the legalrepresentative of a deceased party, instead of coming forwardand himself taking up the responsibility of the suittransfers his interest to another man and that man bepermitted to continue the suit. This disadvantage will beobvious if we refer to the facts of this particular case.The appellant is admittedly a beggar by profession.Priyasakhi is unwilling to come forward, and if the appellant https://hcservices.ecourts.gov.in/hcservices/ be allowed to prosecute the suit,the defendants will bedeprived of their costs. Assuming however that it was opento the learned Subordinate Judge to allow the appellant toprosecute the suit, the circumstances of this case were suchin which the discretion ought not to have been exercised."12. The learned Senior counsel further contended that whenadmittedly the respondents 2 and 3 who are said to be the legalrepresentatives of the deceased 4th appellant are unwilling to come upand prosecute the appeal for reasons best known to them, it will bedefeating the object of the law if the legal representatives of thedeceased party, instead of coming forward and themselves taking up theresponsibility of the suit transfer their interest to another man andthat man can be permitted to continue the suit.13. I have carefully considered the submissions made by thelearned counsel on either side.14. A careful reading of the various decisions relied upon by thelearned counsel for the appellants makes it abundantly clear that atransferee pendente lite is entitled to be made as party to the pendingSecond Appeal as the presence of the transferee is absolutely necessaryin order to decide the above second appeal on merits. It is alsosettled proposition of law that an assignee can make an application forleave to continue the suit so long as there is a suit, so far itconcerns the assignee, on the file of the court. In a suit which isnot subsisting there is no scope for seeking continuance. As observedby the Full Bench of the Kerala High Court in AIR 1977 Kerala 83 (FullBench) (referred to supra) in a case where the suit has abated theassignee cannot thereafter seek to be added as a party to the action.If the assignee seeks to be impleaded in the proceedings before thesuit abates and the legal representatives also seek to be impleaded,the court would allow the assignee to come on record depending upon thefacts and circumstances of the particular case. The assignee cannotclaim to come on record as a matter of right since leave is not to begranted as a matter of course. But if the suit has already abated,there is no suit which may be continued. The suit abates automaticallyin the absence of any application under Order 22 Rule 3 within 90 daysand further order declaring that the suit has abated is not necessary.The assignee is bound by the abatement. In this case, the mainquestion to be considered is whether the appeal has abated only asagainst the fourth appellant or the appeal in its entirety has abated.After deciding that question, the further vital question to be decidedis as to whether the decree that is passed in the suit is a joint andinseverable or joint and severable or separable.15. In the decision reported in (2003) 3 SCC 272 (Sardar AmarjitSingh Kalra v. Pramod Gupta) a Constitution Bench of the Apex Court,after considering various decisions held, at p.305 SCC, that whether anappeal partially abates on account of the death of one or the otherparty on either side has to be considered depending upon the fact as to https://hcservices.ecourts.gov.in/hcservices/ whether the decree obtained is a joint decree or a severable one. Itwas further held that in case of a joint and inseverable decree if theappeal abated against one or the other, the same cannot be proceededwith further for or against the remaining parties as well. Ifotherwise, the decree is a joint and several or separable one, being insubstance and reality a combination of many decrees, there can be noimpediment for the proceedings being carried with among or againstthose remaining parties other than the deceased. Finally, this Courtheld in para 34, at SCC pp. 307-08 as under: “34 . In the light of the above discussion, we hold: (1) Wherever the plaintiffs or appellants or petitionersare found to have distinct, separate and independentrights of their own and for the purpose of convenience orotherwise, joined together in a single litigation tovindicate their rights, the decree passed by the courtthereon is to be viewed in substance as the combination ofseveral decrees in favour of one or the other parties andnot as a joint and inseverable decree. The same would bethe position in the case of the defendants or respondentshaving similar rights contesting the claims against them. (2) Whenever different and distinct claims of more thanone are sought to be vindicated in one single proceedingas the one now before us, under the Land Acquisition Actor in similar nature of proceedings and/or claims inassertion of individual rights of parties are clubbed,consolidated and dealt with together by the courtsconcerned and a single judgment or decree has been passed,it should be treated as a mere combination of severaldecrees in favour of or against one or more of the partiesand not as joint and inseparable decrees. (3) The mere fact that the claims or rights asserted orsought to be vindicated by more than one are similar oridentical in nature or by joining together of more thanone of such claimants of a particular nature, by itselfwould not be sufficient in law to treat them as jointclaims, so as to render the judgment or decree passedthereon a joint and inseverable one. (4) The question as to whether in a given case the decreeis joint and inseverable or joint and severable orseparable has to be decided, for the purposes of abatementor dismissal of the entire appeal as not being properlyand duly constituted or rendered incompetent for beingfurther proceeded with, requires to be determined onlywith reference to the fact as to whether thejudgment/decree passed in the proceedings vis-?vis theremaining parties would suffer the vice of contradictoryor inconsistent decrees. For that reason, a decree can besaid to be contradictory or inconsistent with anotherdecree only when the two decrees are incapable ofenforcement or would be mutually self-destructive and that https://hcservices.ecourts.gov.in/hcservices/ the enforcement of one would negate or render impossiblethe enforcement of the other.”16. Admittedly the suit has been filed by the first respondentherein for declaration of title and for recovery of possession of thesuit property. The defence taken by the defendants/appellants is thatthe plaintiff/first respondent is not entitled to get a declaration asshe is not the wife of the original owner and the defendants/appellantshave perfected their title by adverse possession. Though a feabledefence has been taken that the defendants have partitioned the suitproperty no details of the same have been furnished and it is not thespecific case of the defendants that they are in possession andenjoyment of identifiable and separate properties and in the partitionclaimed by them the suit property was divided by metes and bounds.Therefore the abatement caused by the death of the fourth appellant hasrendered the entire appeal as abated since the judgment/ decree passedin the proceedings vis-a-vis the remaining appellants would suffer thevice of contradictory or inconsistent decrees. Because if the appealis allowed as far as the remaining appellants are concerned, it wouldbe contradictory or inconsistent with a decree that is passed againstthe deceased/fourth appellant as both the decrees could not be enforcedand both the decrees would be mutually self-destructive and theenforcement of one would negate or render impossible the enforcement ofthe other. Therefore the contention of the learned senior counsel forthe first respondent that the decree passed in these proceedings isjoint and inseparable has to be accepted.17. When this Court has come to the conclusion that the decreepassed in the suit is joint and inseverable and since as against thefourth appellant the appeal has abated it has rendered the entireappeal incompetent for being further proceeded with. Therefore aspointed out above, leave to continue the proceedings cannot be givenafter the proceedings has terminated. The assignee is bound by theabatement. Further as rightly contended by the learned senior counselneither appellants 1 to 3 nor the legal representatives of thedeceased-the fourth appellant namely respondents 2 and 3 have evincedany interest to take steps to implead the legal representatives andset-aside the abatement caused by the death of the fourth appellant,but the assignee seeks leave to continue the proceedings which hasadmittedly abated long back. Therefore this Court is not inclined to https://hcservices.ecourts.gov.in/hcservices/ entertain the above petition filed by the first petitioner claiming tobe an assignee. In such view of the matter the above petition failsand the same is dismissed. For the above said reasons the secondappeal itself is liable to be dismissed and accordingly dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.Registrarsms / srkTo1.The Subordinate Judge,Vridhachalam.2.The District Munsif, Virudhachalam.3.The Section Officer,VR Section, High Court, Madras.+1cc to Mr.R.Subramanian,Advocate SR 8724RL (CO)km/25.2.S.A.No.1511 of 1993 & C.M.P.No.4214 of 2006