Full Judgment Text
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8104 OF 2022
(Arising out of SLP (C) No. 6065 of 2021)
MARINGMEI ACHAM Appellant (s)
VERSUS
M MARINGMEI KHURIPOU Respondent(s)
J U D G M E N T
K. M. JOSEPH, J.
Leave granted.
(1) The impugned order is an order passed in a Civil
Revision Petition. The High Court has found that in view of
the fact that the suit, filed by the appellant’s late
father(Maringmei Thaitoungam) who had died and as no steps
had been taken to implead his legal representatives, had
abated, the result of the abatement of the suit filed by the
appellant’s father, it was held, was that the civil
miscellaneous appeal filed under Order XLIII Rule 1 of the
Code of the Civil Procedure against an order refusing
temporary injunction would no longer have to be proceeded
Signature Not Verified
with.
Digitally signed by
Nidhi Ahuja
Date: 2022.11.14
15:58:43 IST
Reason:
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F A C T S
(2) It is the case of the appellant that his father
(Maringmei Thaitoungam) became the headman of a village by
name Lamdan Kabui in the year 1972. It is his further case
that the post of Chief(Khullakpa) of the village Lamdan
Kabui is hereditary as per the Rongmei Kabui Customary Law
and as per which on the death of the chief of the village,
the eldest clan member /son becomes the chief. The custom
has been in existence since time immemorial and even
notified in the Gazette. It is in terms of such custom that
the appellant’s father became the chief in the year 1972.
(3) The appellant’s father filed Original (Declaratory)
Suit No.3 of 2014 on 10.03.2014 contending that he was the
chief of village since 1972. His wife had passed away in
the year 2013. The respondent herein claiming that a
widower cannot become the chief, had forged certain
proceedings declaring himself to be the chief. It was his
further contention that even if the original plaintiff could
not act as a chief, his son can become the chief. The
appellant’s father sought a relief of declaration of his
right as chief (Khullakpa). He further sought a declaration
that the order passed by the Deputy Commissioner,
Churachndpur dated 20.01.2014 by which the respondent was
recognised as chief was null and void and a permanent
injunction was also sought for against the felling of trees.
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(4) The original plaintiff filed an application seeking
injunction under Order XXXIX Rule 1 again seeking to
restrain the respondent from acting as chief, felling of
trees and collecting of house tax. The respondent filed his
written objections. Suffice it to notice that the
application seeking interim injunction was declined by the
trial Court which resulted in Civil Miscellaneous
Application No. 2 of 2014 being filed before the District
Judge by the original plaintiff. Records came to be called
for. The next circumstance to be noticed is crucial as it
consists of the death of the original plaintiff-the
appellant’s father(Maringmei Thaitoungam) which took place
on 07.09.2014. This event took place during the pendency of
the appeal against the refusal to grant interim order. In
September, 2014, the appellant filed application before the
appellate Court seeking to come on record as his legal
representative. This application came to be allowed by
order dated 18.09.2014.
(5) On 23.12.2014, the respondent filed a suit(Original
(Injunction) Suit No. 39 of 2014) seeking to restrain the
appellant from acting as village chief. The respondent also
filed an application seeking temporary injunction. The said
application came to be allowed. Civil Miscellaneous Appeal
No. 2 of 2015 was filed again by the appellant challenging
the order granting injunction against the appellant. The
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High Court by order dated 12.01.2016 directed verification
as to whether after the death of the original plaintiff (the
appellant’s father), any substitution had taken place in the
suit.
(6) On the application filed by the appellant seeking
amalmagation of the two civil miscellaneous appeals, by
order dated 27.11.2018, amalmagation as prayed for was
allowed. A challenge to the same by the respondent resulted
in order dated 15.04.2019 affirming the amalmagation.
However, it was observed by the High Court that it was open
to the respondent to contest the maintainability of the
appeals. It is this order which led to the passing of order
dated 13.05.2019. By the said order, the District Judge
found apparently that the appeals are maintainable. This
led to the filing of the revision petition and culminated in
the impugned order dated 11.03.2021.
We have heard learned counsel for the appellant and
the learned counsel for the respondent.
(7) The findings of the High Court at paragraph No. 11 are
as follows:
“[11] It is however significant to note that the suit
prayer of Maringmei Thaitoungam was not only to
declare him as the existing or continuing Chief of
Lamdan Kabui Village but also to declare the order
dated 20.01.2014 passed by the Deputy Commissioner,
Churachandpur, to be null and void. By the said
order, the Deputy Commissioner had approved and
validated the claim of Maringmei Khuripou that he was
the new Khullakpa/Chief of Lamdan Kabui village. In
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effect, the claim of Maringmei Thaitoungam to the said
post stood rejected by this order. Unless the said
order is set aside, the question of Maringmei Acham
seeking any hereditary rights under his deceased
father in relation to the Chiefship of the village
would not arise. To that extent, Maringmei Acham had
an interest in and the right to continue the suit
proceedings as the cause of action in relation to the
Deputy Commissioner’s order dated 20.01.2014 still
remained alive for him even after the death of
Maringmei Thaitoungam. Therefore, the plea of
Maringmei Khuripou that the cause of action in the
suit stood extinguished in its entirety upon the death
of Maringmei Thaitoungam, the sole plaintiff, cannot
be accepted.”
After so finding, the High Court has proceeded to
notice that the Original (Declaratory) Suit No. 3 of 2014
filed by the appellant’s father had abated long back in
December, 2014, on account of the death of the sole
plaintiff. Since no application was filed within time under
Order XXII of the CPC, the suit stood abated. It was on
this basis essentially that the Court went on to find that
the appellate Court erred in not taking note of this vital
aspect while considering the maintainability of the Civil
Miscellaneous Appeal No. 2 of 2014 and limiting itself only
to the merits of the matter.
(8) The High Court observed that procedure while is only
handmaid of justice but it could not be ignored to the
extent of dealing with an appeal on merits when the basis of
the order under appeal stood demolished. Essentially this
meant that the High Court found that since the suit from
which the appeal arose itself stood abated, nothing further
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survived.
(9) Learned counsel for the appellant would contend that
the approach of the High Court is fallacious. He would
point out that paragrah 11 (supra) reflected the correct
approach of the High Court finding that the appellant has a
right to continue to prosecute the suit which was filed by
his father. But thereafter, the premise of the impugned
order is that the suit having been abated as a result of the
death of appellant’s father-the only plaintiff, and it was
not unsettled by bringing on record of the legal
representatives within time, nothing more survives for being
considered in an appeal from the grant or refusal of
injunction.
He would submit that this is a matter which is to be
decided in favour of the appellant having regard to the
position at law which has been clearly laid down by the
judgment of this Court in Rangubai Kom Shankar Jagtap v.
Sunderabai Bhratar Sakharam Jedhe & Others [AIR 1965 SC
1794]. Therein this Court inter alia laid down as follows:
“9. Let us now consider the question on principle. A
combined reading of Order XXII, Rules 3, 4 and 11, of
the Code of Civil Procedure shows that the doctrine of
abatement applies equally to a suit as well as to an
appeal. In the application 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 within the prescribed time, the appeal abates
as against the respondent under Rule 4, read with Rule
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11, of Order XXII of the Code of Civil Procedure. But
there is another principle recognized by the Judicial
Committee in the aforesaid decision which softens the
rigour of this rule. The said principle is that if the
legal representatives are brought on record within the
prescribed time at one stage of the suit, it will
enure for the benefit of all the subsequent stages of
the suit. The application of this principle to
different situations will help to answer the problem
presented in the present case. ( 1 ) A filed a suit
against B for the recovery of possession and mesne
profits. After the issues were framed, B died. At the
stage of an interlocutory application for production
of documents, the legal representatives of B were
brought on record within the time prescribed. The
order bringing them on record would enure for the
benefit of the entire suit. ( 2 ) The suit was decreed
and an appeal was filed in the High Court and was
pending therein. The defendant died and his legal
representatives were brought on record. The suit was
subsequently remanded to the trial court. The order
bringing the legal representatives on record in the
appeal would enure for the further stages of the suit.
( 3 ) An appeal was filed against an interlocutory order
made in a suit. Pending the appeal the defendant died
and his legal representatives were brought on record.
The appeal was dismissed. The appeal being a
continuation or a stage of the suit, the order
bringing the legal representatives on record would
enure for the subsequent stages of the suit. This
would be so whether in the appeal the trial court's
order was confirmed, modified or reversed. In the
above 3 illustrations one fact is common, namely, the
order bringing on record the legal representatives was
made at one stage of the suit, be it in the suit or in
an appeal against the interlocutory order or final
order made in the suit, for an appeal is only a
continuation of the suit. Whether the appellate order
confirms that of the first Court, modifies or reverses
it, it replaces or substitutes the order appealed
against. It takes its place in the suit and becomes a
part of it. It is as it were the suit was brought to
the appellate court at one stage and the orders made
therein were made in the suit itself. Therefore, that
order enures for the subsequent stages of the suit.”
(10) The learned Counsel for the respondent, on the other
hand, would submit that the position at law canvassed by the
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appellant is unexceptionable and the High Court may have
been in error in ignoring the effect of the order by which
the District Court had in the civil miscellaneous appeal
brought on record the appellant as legal representative of
the original plaintiff-appellant’s father. However, he
would point out that his complaint in the petition under
Article 227 has not been considered by the High Court. He
would point out that his contention was that on the death of
the original plaintiff, the relief which was purely personal
to him could not have been allowed to be pursued by the
appellant-son of the original plaintiff in the appeal.
He would therefore, pray that the matter should go
back to the High Court for consideration of his contention
which according to him has not been done by the High Court.
(11) In the suit as we have noticed, Suit No. 3 of 2014,
which was the suit filed by the father of the appellant, the
High Court has entered the finding as we have noticed in
paragraph 11 of the impugned order.
Learned counsel for the respondent, as we have
noticed, does not take objection to the said reasoning of
the High Court. This means that the suit can be continued
by the appellant despite the passing away of the only sole
plaintiff. As far as the effect of the death of the
original plaintiff during the pendency of the miscellaneous
appeal, is concerned, we have noticed the pronouncement of
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this Court. This case attracts illustration number three
which has been referred to in paragraph 9 of the judgment.
For the sake of clarity, we recapitulate the same:
“……………………………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………………………………..
( 3 ) An appeal was filed against an interlocutory order
made in a suit. Pending the appeal the defendant died
and his legal representatives were brought on record.
The appeal was dismissed. The appeal being a
continuation or a stage of the suit, the order
bringing the legal representatives on record would
enure for the subsequent stages of the suit. This
would be so whether in the appeal the trial court's
order was confirmed, modified or reversed. In the
above 3 illustrations one fact is common, namely, the
order bringing on record the legal representatives was
made at one stage of the suit, be it in the suit or in
an appeal against the interlocutory order or final
order made in the suit, for an appeal is only a
continuation of the suit. Whether the appellate order
confirms that of the first Court, modifies or reverses
it, it replaces or substitutes the order appealed
against. It takes its place in the suit and becomes a
part of it. It is as it were the suit was brought to
the appellate court at one stage and the orders made
therein were made in the suit itself. Therefore, that
order enures for the subsequent stages of the suit.”
(12) In this case itself, similarly in the suit, temporary
injunction sought by the original plaintiff was refused. An
appeal was filed against the refusal to grant interlocutory
order. The original plaintiff-appellant’s father having
passed away during the pendency of the appeal, the legal
representative that is the son of the original plaintiff
viz., the appellant, was brought on record by the order of
the Court dated 18.09.2014 in the appeal. The fact that in
the suit, the legal representative was not substituted would
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not result in the consequence which the High Court has found
in the impugned order having regard to the declaration of
the law made by this Court. In other words, in view of the
fact that the legal representative has been brought on
record in appeal though from an interlocutory order, such
impleadment will enure towards the proceedings in the suit
itself. To make it further clear, the failure to get the
appellant impleaded in the suit itself would not be fatal to
the continued prosecution of the suit. The suit, therefore,
must be proceeded with and it cannot be extinguished by
virtue of the abatement which the High Court attributes on
account of the death of the sole plaintiff and non
impleadment in the suit of his legal representative.
(13) Having so found, the question arises as to whether it
should go back to the District Judge for consideration of
the appeal or whether it should be remitted to the High
Court for considering the complaint of the respondent that
the appeal before the District Judge was not maintainable
having regard to the death of the original plaintiff in
Original (Declaratory) Suit No. 3 of 2014.
In this regard, we find that in the interest of
justice, since the suits are still pending and the issue
must be decided in the said suits, it would be more
appropriate if we direct that the suits filed by both the
appellant’s father and the respondent are taken up and
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decided within a reasonable time. In this regard and to
facilitate the same, we record the submission of the
appellant that the appellant will not press Civil
Miscellaneous appeals.
We record the submission and we allow the appeal and
set aside the order of the High Court and having regard to
the commonality of the issues which appear to arise and the
commonality of the parties to the suits, we further direct
that Original (Declaratory) Suit No. 3 of 2014 and Original
(Injunction) Suit No. 39 of 2014 shall be consolidated and
the cases be disposed of as early as possible and within a
period of eight months from the date of production of a copy
of this judgment before the Civil Judge (Senior Division),
Churachandpur.
We make it clear that we have not made any
pronouncement on the merits of the contentions of the
parties which we leave open.
The parties will bear their respective costs.
……………………………………………………, J.
[ K.M. JOSEPH ]
……………………………………………………, J.
[ HRISHIKESH ROY ]
New Delhi;
November 03, 2022.
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ITEM NO.22 COURT NO.5 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No. 6065/2021
(Arising out of impugned final judgment and order dated 11-03-2021
in CRP No. 29/2019 passed by the High Court of Manipur at Imphal)
MARINGMEI ACHAM Petitioner(s)
VERSUS
M MARINGMEI KHURIPOU Respondent(s)
[TO BE TAKEN UP IN THE TOP FIVE MATTERS.]
(IA No. 133159/2021 - APPLICATION FOR PERMISSION)
Date : 03-11-2022 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE K.M. JOSEPH
HON'BLE MR. JUSTICE HRISHIKESH ROY
For Petitioner(s) Mr. Amit Pawan, AOR
Mr. Anand Nandan, Adv.
Mr. Hassan Zubair Waris, Adv.
Ms. Shivangi, Adv.
Mr. Suchit Singh Rawat, Adv.
Mr. Aakarsh, Adv.
Mr. Bharat Singh, Adv.
Mr. Ashish Pandey, Adv.
Mr. Kshitiz Singh, Adv.
Mr. Kushagra Raghuvanshi, Adv.
Mr. Mahipal Khagnwal, Adv.
For Respondent(s) Mr. N. Umakanta Singh, Adv.
Mr. N G. Junior, Adv.
Mr. Neeraj Kumar Gupta, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed
reportable judgment.
Pending application stands disposed of.
(NIDHI AHUJA) (MATHEW ABRAHAM)
AR-cum-PS COURT MASTER (NSH)
[Signed reportable judgment is placed on the file.]
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