Judgment:
* % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
5. h July, 2017 CM(M) No.1282/2012 SATBIR SINGH & ORS. Through: Mr. N.M. Popli, Adv. ........ Petitioner
s Versus MEHTAB SINGH & ORS. ........ RESPONDENTS
Through: Mr. B.D. Sharma, Mr. Pramod Kumar & Ms. Shalu Jain, Advs. for R-1. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW1 This petition under Article 227 of the Constitution of India impugns the order [dated 9th September, 2011 in Suit No.703/2002 of the Court of Civil Judge (West)-III, Tis Hazari Courts, Delhi]. allowing the application of the respondent no.1 / defendant and holding, that dismissal of the applications of the petitioners / plaintiffs for substitution of legal representatives of the deceased plaintiff Ishwar Singh and defendant No.2 Sh. Dhare and resultant abatement of the suit qua/against them, had also resulted in abatement of the suit against the respondent no.1 / defendant and resultantly dismissing the suit.
2. 3. The petition was entertained and notice thereof issued. The petitioner no.3 / plaintiff Kartar Singh died during the pendency of this petition and vide order dated 30th November, 2016 his legal heir was substituted in his place. The respondent no.7 Shakuntala also died during the pendency of this petition and the CM(M) No.1282/2012 Page 1 of 12 applications filed for substitution of her legal representative were dismissed on 30th November, 2016 recording that she was only a proforma respondent and no relief was claimed against her. The order dated 30th November, 2016 also records that service of the notice of the petition was complete.
4. 5. The counsels have been heard. The suit from which this petition arises was instituted in April, 1991 seeking i) declaration to the effect that the compromise dated 25th February, 1991 entered into between the defendant no.1 and defendants no.2 to 4 in the suit and the consequent order dated 9th May, 1991 of the Court of Smt. Aruna Suresh, Additional Senior Sub Judge, Delhi in three appeals titled a) Dhare Vs. Kehar Singh, b) Pritam Singh Vs. Kehar Singh and c) Mehtab Singh Vs. Kehar Singh, filed by the defendants no.2 to 4 in the suit against the defendant no.1 were all procured malafidedly, dishonestly, collusively, fraudulently and were illegal, void and without jurisdiction and not binding on the plaintiffs and did not affect the rights, title and interest of the plaintiffs as successors in interest of one Smt. Risalo in the land detailed in para no.24 of the plaint; and, ii) a decree of permanent injunction restraining the defendants from interfering with the possession of the plaintiffs of the said land and from transferring the land to anyone else.
6. It is not in dispute that during the pendency of the suit, i) defendant no.2 Dhare died on 6th December, 1997 and the application belatedly filed for substitution of his legal representatives was dismissed on 30th March, 2011; ii) the CM(M) No.1282/2012 Page 2 of 12 defendant no.1 also died; iii) the defendant no.3 also died and the application belatedly filed for substitution of his legal representative was also dismissed; iv) the plaintiff no.1 Ishwar Singh also died and the application for substitution of his legal representatives was also dismissed on 30th March, 2011.
7. The sole surviving defendant Mehtab Singh, in the circumstances, moved the application contending that with the abatement of the suit qua defendants whose heirs had not been brought on record and qua one of the plaintiffs whose heirs had also not been brought on record, the suit against him also stood abated and which application has, vide the impugned order, been allowed by the learned Civil Judge.
8. The learned Civil Judge, in the impugned order, has recorded i) that it was the contention of the defendant / applicant Mehtab Singh that if the suit was permitted to continue against him, the same will lead to passing of conflicting decrees not permissible in law; and, ii) that it was the contention of the counsel for the surviving plaintiffs that they were the lawful owner of the property and there would be no conflicting decrees.
9. The learned Civil Judge, in the impugned order, has reasoned i) that the claim of the plaintiffs against the defendants was joint, composite and not independent; ii) that the relief of permanent injunction was consequential to the relief of declaration; iii) that the declaration sought by the plaintiffs was not of their ownership on the basis of sale deeds in their favour but of compromise inter se the defendants being null and void; iv) that thus there was no CM(M) No.1282/2012 Page 3 of 12 independent and divisible claim against each of the defendants; v) that all the defendants except one had expired and the suit already stood abated against the deceased defendants; vi) that it is settled law that where the claim against each of the defendants is not independent or divisible, then on abatement of the suit against one of the defendants, the suit as well abates; and, vii) that if it was held otherwise, it would result in conflicting decrees between the defendants.
10. I have at the outset enquired from the counsel for the petitioners as to how this petition invoking Article 227 of the Constitution of India has been preferred and the suit having been dismissed, whether not the remedy of the petitioners / plaintiffs against the order of dismissal of the suit was of preferring an appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC). The order impugned, of dismissal of suit as abated so far as against the surviving defendant / respondent no.1 Mehtab Singh, is on the finding of the claim of petitioners / plaintiffs in the suit against defendants no.1 to 4 being not divisible and the suit, on having stood abated against defendants no.1 to 3, abating against surviving defendant / respondent no.1 Mehtab Singh also. This is an adjudication on merits and would qualify as a ‘decree’ within the meaning of Section 2(2) of the CPC, being an adjudication conclusively determining the rights of the petitioners / plaintiffs and defendant / respondent no.1 Mehtab Singh with regard to the matter in controversy in the suit. Order XXII Rule 9(2) provides for an application for setting aside of abatement only where no application CM(M) No.1282/2012 Page 4 of 12 is filed and Order XLIII Rule 1(k) provides for appeal against an order under Rule 9 of Order XXII refusing to set aside abatement or dismissal only. Thus Order XXII Rule 9 is in the nature of a default procedure and whereagainst appeal is provided. However holding a proceeding as abated, on merits, would fall under Section 2(2) of CPC as aforesaid.
11. The counsel for the petitioners / plaintiffs states that no decree sheet has been prepared. Attention in this regard is drawn to the impugned order not even directing preparation of a decree.
12. I am unable to agree. The remedies against judgments, orders and decrees are governed by the CPC and other statutes and are not dependent upon preparation of a decree. Even if decree has not been prepared, it was incumbent upon the petitioners / plaintiffs to apply to the Court for preparation of a decree and / or to prefer an appeal seeking exemption from filing copy of the decree, stating reasons therefor.
13. As far back as in Rampal Singh Vs. Abdul Hamid AIR1928Oudh 362 (FB), it was held that an order directing abatement of the suit is appealable. The same is the view in K.R. Subramania Iyer Vs. Venkataramier AIR1916Mad. 1068 (FB) and Anna Tatoba Jadhav Vs. Anna Bhau Chougule AIR1982Bom 174. Similarly, it was held in Niranjan Nath Vs. Afzal Hussain AIR1916Lahore 245 (FB), Gurdial Singh Vs. Rattan Singh 1980 Punjab Law Journal 89 (DB), Brij Jivan Lal Vs. Shiam Lal AIR1950All 57 and Achhar Vs. Koondi AIR1958J&K53(DB) that if the order of abatement is the result of the adjudication upon the rights of the CM(M) No.1282/2012 Page 5 of 12 parties with respect to a matter in controversy, it amounts to a decree and is appealable as such. Reference may also be made to Thadikonda Gopalaratnam Vs. Thadikonda Lakshmikantam AIR1943Mad 569 and Purushottamdas Sakalchand Vs. Devkaran Kesheoji AIR1939Nagpur 39 (DB) holding that a order dismissing the suit as having abated will be appealable.
14. In Ganpat Ram Vs. Vishnu Dutt 1978 Current Law Journal (Civil) 158 Punjab and Suppu Nayakan Vs. Perumal Chetty AIR1917Madras 285 (DB), it was held that when the suit is dismissed as having abated and the propriety of dismissal on that ground is questioned, an appeal will lie as if from a decree. Similarly in Bhanwar Singh Vs. Man Singh AIR1954Ajm 43, it was held that where on abatement of a suit so far as the deceased concerned, the Court dismissed the whole suit against all parties, an appeal would lie.
15. It is settled principle in law that remedy under Article 227 cannot be invoked where alternative efficacious remedy is available. Reference can be made to Seth Chand Ratan Vs. Pandit Durga Prasad (D) by Lrs (2003) 5 SCC399 Sadhana Lodh Vs. National Insurance Co. Ltd. (2003) 3 SCC524 State Bank of India Vs. Allied Chemical Laboratories (2006) 9 SCC252 Bijoy Kumar Dugar Vs. Bidya Dhar Dutta (2006) 3 SCC242and Ajay Bansal Vs. Anup Mehta (2007) 2 SCC275 16. In the instant case, the order impugned being of the Civil Judge, the appeal would lie before the District Judge. CM(M) No.1282/2012 Page 6 of 12 17. I find that the defendant / respondent no.1 Mehtab Singh in his counter affidavit to this petition filed in September, 2014 has also taken the said plea and the petitioners in their rejoinder affidavit have merely denied the said plea. It is thus not as if the petitioners, prior to today, were not aware of the appropriate remedy which should have been invoked.
18. The petitioners thereafter also have remained quite for three years and have continued pursuing this petition. The said conduct of the petitioners does not entitle the petitioners to any indulgence and the petition is liable to be dismissed on this ground alone.
19. However for the sake of completeness, I proceed to consider the case on merits also.
20. The petitioners in their memorandum of petition and in the grounds of challenge to the impugned order taken therein, have not given any worthwhile reason why the impugned order is not in accordance with law. The counsel for the petitioners has however argued that against the order in the suit of dismissal of the application for substitution of legal representatives of the defendant no.2 Dhare, the petitioners had preferred CM(M) No.803/2011 to this Court and which was dismissed on 15th July, 2011. It is further stated that the petitioners preferred SLP (C) No.36176/2011 to the Supreme Court against the order dated 15th July, 2011 of this Court and which SLP was granted and registered as Civil Appeal No.6596/2016. Attention is drawn to the order dated 19th July, 2016 of the Supreme Court therein allowing the same and condoning the delay in applying for bringing on record the legal CM(M) No.1282/2012 Page 7 of 12 representative of the defendant no.2 Dhare and substituting the legal representative of the defendant no.2 Dhare in his place.
21. I have considered the effect of the said order of the Supreme Court in this petition.
22. The application of the defendant / respondent no.1 Mehtab Singh was allowed by the learned Civil Judge and the suit against him was also dismissed as abated for the reason that as on that date the suit against all the other defendants no.2 to 4 already stood abated.
23. The said factual scenario in which the learned Civil Judge made the impugned order has undergone a change with the order aforesaid of the Supreme Court. Now the legal representative of one of the deceased defendants viz. defendant no.2 is on record.
24. The question to be considered however still would be, whether the suit against the respondent no.1 and against the legal representative of the defendant no.2 Dhare can continue when it has abated against the defendants no.3&4. Instead of remanding the matter to the learned Civil Judge to consider the said aspect, it is deemed appropriate to consider the said aspect here and the counsels have also readily agreed, stating that this is the fifth round of litigation with respect to the subject properties. From a perusal of the plaint in the suit from which this petition arises also it transpires that the origin of the litigation was in the year 1968.
25. I have enquired from the counsel for the petitioners / plaintiffs, whether not the same reasons which prevailed with the learned Civil Judge for holding the suit against the defendant / CM(M) No.1282/2012 Page 8 of 12 respondent no.1 Mehtab Singh also to have abated i.e. owing to abatement of the suit against defendants no.2 to 4, would apply notwithstanding the abatement against the defendant no.2 having been set aside. The suit, even as on date, stands abated against the defendants no.3 and 4 and which orders of abatement have attained finality.
26. The counsel for the petitioners has referred to Balwant Singh (Dead) Vs. Jagdish Singh (2010) 8 SCC685 However, the reference to the said judgment is not understandable. The said judgment is on the proposition of, what is sufficient cause within the meaning of Order XXII Rule 9(2) of the CPC providing for an application for setting aside of the abatement. This petition is not concerned with the orders of abatment of suit against the defendants no.3 and 4 and which orders have attained finality. The challenge now in this petition is to dismissal of the suit as abated against the surviving defendants also, for the reason of abatement against other defendants.
27. Order XXII Rule 9(1) dealing with effect of abatement provides that where a suit abates or is dismissed for the reason of death and the legal representatives having not been brought on record, no fresh suit shall be brought on the same cause of action. The question with which I am concerned in this petition is, whether on abatement of the suit against two of the four defendants, the suit against the remaining two defendants also abates.
28. Supreme Court in State of Punjab Vs. Nathu Ram AIR1962SC89held that an abatement under Order XXII Rule 4 in the first CM(M) No.1282/2012 Page 9 of 12 instance will be only so far as the deceased defendant is concerned; if the deceased was the sole defendant, the abatement puts an end to the suit; but if he was one of the many defendants, the effect of partial abatement on the whole suit will depend upon the nature of the suit; if on account of partial abatement it becomes for any reason impossible to proceed with the suit to its final conclusion, the entire suit will fail.
29. In Shahazada Bi Vs. Halimabi AIR2004SC3942 it was held that if interest of co-defendants are separate as in case of co- owners, suit will abate only as regards interest of the deceased.
30. Thus what has to be considered is, whether the suit against the defendant / respondent no.1 Mehtab Singh and the legal representative of the defendant no.2 Dhare can proceed to a final adjudication in the absence of legal representatives of the deceased defendants no.3 and 4.
31. A final adjudication is possible in cases where the interest of the deceased defendant can be separated from that of the others and in such cases a decree can be given against surviving defendant without effecting the rights of the legal representatives of the deceased defendant.
32. The best test to see, whether the suit abates as a whole or only in part is to find out if the suit in the first instance could have been instituted and prosecuted with the deceased defendant left out. The other tests often applied are, whether the decree which is to be passed in case the plaintiff succeeds in the suit will be rendered ineffective in the absence of legal representatives of the deceased CM(M) No.1282/2012 Page 10 of 12 defendant or whether there is likelihood of conflicting decrees coming into existence. The Courts do not proceed with a suit when the success of the suit may lead to the Court coming to a decision which may be in conflict between the plaintiff and the deceased defendant, as the same will lead to the Courts passing a decree which will be contradictory to the decree which had become final in respect of the same subject matter between the plaintiff and the deceased defendant. Reference in this regard can also be made to Ramagya Prasad Gupta v. Murli Prasad AIR1972SC1181 33. Seen in this light, the learned Civil Judge has correctly held that the relief in the suit being of declaration of a decree in a suit filed by defendants no.2 to 4 against the defendant no.1 as bad and void, the interest of the defendants in the suit was joint and indivisible and the interest of the deceased defendants no.3 & 4 could not be separated from that of the rest and proceeding with the said suit against the defendant / respondent no.1 Mehtab Singh and now also the legal heir of the defendant no.2 Dhare even if the plaintiffs succeed therein, no decree setting aside the decree in the suit by defendants no.2 to 4 against the defendant no.1 can be passed inasmuch as the dismissal of the suit by abatement against the defendants No.3 and 4 had attained finality.
34. The decree, qua which relief of declaration is claimed in the suit, cannot be set aside qua some of the parties to that decree while the others remain bound by the decree.
35. Supreme Court in Mukhtiar Singh Vs. Kishan Kaur (1996) 7 SCC299held that where the mutation is jointly in the name of all CM(M) No.1282/2012 Page 11 of 12 the defendants, mutation order cannot be split up and therefore on abatement of suit against one of the defendants, it cannot proceed against other defendants as well.
36. Applying the other test enunciated above also, the same result follows. A suit seeking declaration of a decree in an earlier suit as bad and void cannot be instituted without impleading all parties to the earlier decree.
37. Even a suit for partition against all the defendants was in Zilla Singh Vs. Chandgi 1991 Supp (2) SCC430held to have abated against surviving defendants also for failure to implead the legal heirs of one of the defendants.
38. Thus, on merits also, no error is found in the order impugned in this petition.
39. Taking note of the order aforesaid of the Supreme Court also, the same result would follow.
40. There is no merit in the petition. Dismissed. No costs. RAJIV SAHAI ENDLAW, J.
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