Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 8109 OF 2010
GOLI VIJAYALAKSHMI & ORS. ….Appellant(s)
VERSUS
YENDRU SATHIRAJU(DEAD) BY LRS. & ORS. ….Respondent(s)
WITH
CIVIL APPEAL NO(s). 8110 OF 2010
J U D G M E N T
Rastogi, J.
1. The aforesaid civil appeals arise from the impugned
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judgment dated 22 November, 2005 passed by the High Court
of Andhra Pradesh at Hyderabad in Appeal No. 1146 of 1996(and
cross objections) confirming the judgment and decree passed by
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the learned trial Court dated 12 October, 1995 in Original Suit
Signature Not Verified
No. 175 of 1987 whereby the Courts below have inter alia decreed
Digitally signed by
NEETU KHAJURIA
Date: 2019.04.26
18:24:38 IST
Reason:
the suit schedule ‘A’ and ‘B’ properties and have dismissed the
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suit qua schedule ‘C’ property filed by the
respondent(s)/plaintiff(s).
2. When the aforesaid civil appeals were taken up for
adjudication, the respondents/plaintiffs raised a preliminary
objection to the prosecution of the appeals on the ground that the
civil appeals have abated in toto. It is to be further noticed that
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the defendant no. 2 Goli Sathiraju died on 21 February, 2006
and his legal heirs have not chosen to come on record and when
the matter was listed before the Chamber Judge, it was observed
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vide Order dated 24 July, 2009 as follows:
“IA No. 2 in SLP(C ) No. 9401/2006 is for deletion of
petitioner no. 2 who is stated to have died on
21/2/2006 and his LRs have not chosen to come on
record. Hence, the matter abates insofar as petitioner
no. 2 is concerned. I.A. No. 2 is allowed.
Petitioner no. 2 in SLP(C ) No. 9401/2006 is the
respondent no. 2 in the connected SLP(C ) No.
19919/2006. SLP(C ) No. 9401/2006 insofar as
petitioner no. 2 is concerned stands abated. In view
thereof, petitioner is permitted to delete respondent no.
2 from the array of parties. I.A. No. 3 is allowed.”
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3. When the matter came before the Court on 10 May, 2018,
taking note of the view expressed by the Chamber Judge dated
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24 July, 2009, it was observed that in view of the appeal stood
abated qua the appellant no. 2, therefore, the appeal in entirety
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stands abated. Learned counsel for the appellants sought time to
examine the issue regarding the abatement of the
proceedings in view of the fact that the appeal stood abated qua
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appellant no. 2 in terms of order dated 24 July, 2009.
4. The seminal facts which are relevant for the present
purpose are that the original plaintiff Yendru Sathiraju filed O.S.
No. 175 of 1987 before the learned trial Court praying inter alia
declaration of title in respect of schedule ‘A’,’B’ & ‘C’ properties
and for recovery of possession from the defendants/appellants.
The prayer is as follows:
“18. Plaintiff therefore prays that the Hon’ble Court
may be pleased to pass a decree in his favour:
a) Declaring his absolute title to the plaint A,
B and C schedule properties and for
recovery of possession thereof after evicting
the defendants there from;
b) Granting a mandatory injunction directing
the defendants to restore opening in the
northern compound wall in between plaint
B and C schedule properties and put up
the doorway in its former position;
c) for costs of the suit; and
d) for such other relief’s as may deem fit and
proper under the circumstances of the
case.”
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5. Written statement came to be filed by the defendant no. 1
which was adopted by the defendant nos. 2 and 3 before the trial
Court. Although an averment was made in the written
statement that the suit schedule ‘A’ property fell to the share of
defendant no. 1 and the Suit schedule ‘B’ property fell to the
share of defendant no. 2. The trial Court after adjudicating the
matter was pleased to pass a partial decree declaring the title and
ownership of the plaintiff/respondent to Suit schedule ‘A’ and ‘B’
properties and directing the defendants/appellants to deliver
possession of the same to the plaintiff/respondent. Against
schedule ‘C’ property, the claim of the plaintiff/respondent was
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rejected vide judgment and decree dated 12 October, 1995. The
decree passed by the trial Court is as under:
“In the result, the suit is decreed in part with
proportionate costs (1) declaring the title and
ownership of the plaintiff to plaint ‘A’ and ‘B’ schedule
properties (2) directing the defendants to deliver
possession of the plaint ‘A’ and ‘B’ schedule properties
to the plaintiff (3) granting a mandatory injunction
directing the defendants to restore the doorway in the
compound wall situated to between plaint ‘A’ and ‘B’
schedule properties; and (4) directing the defendants to
pay future profits from the date of filing of the suit till
the date of delivering possession of the plaint ‘A’ and
‘B’ schedule properties to the Plaintiff, the quantum of
which has to be ascertained in separate proceedings on
an application by the plaintiff. Rest of the suit claim is
dismissed.”
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6. The defendants/appellants preferred Appeal no. 1146 of
1996 before the High Court (and cross objections were filed by
the plaintiffs/respondents herein), both came to be dismissed
and a judgment and decree of the trial Court came to be
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confirmed by the High Court vide judgment dated 22 November,
2005.
7. It reveals from the record that the defendants/appellants
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jointly filed SLP(C ) No. 9401 of 2006 before this Court on 30
March, 2006. At the same time, plaintiffs/respondents also
preferred SLP (C ) No. 19919 of 2006 against the rejection of suit
schedule ‘C’ properties. The factum of the death of appellant
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no. 2 was brought to the notice of this Court on 7 May, 2007
and learned counsel sought time to bring on record his legal
representatives but on failure to bring on record the legal
representatives of the appellant no. 2, the Chamber Judge vide
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order dated 24 July, 2009 pleased to treat the special leave
petition/appeal as abated so far as appellant no. 2 is concerned
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and this Court vide order dated 6 September, 2010 rejected the
application filed to implead the legal representatives of appellant
no. 2 as proforma respondents. Further, it was specifically
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observed that the consequence of the abatement of the appeal
qua the appellant no. 2 was left open for consideration at the
time of final hearing of the appeal.
8. This Court granted leave and accordingly the special leave
petitions were converted into Civil Appeal Nos. 8109 and 8110 of
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2010 vide order dated 6 September, 2010. This Court vide
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order dated 14 August, 2018 was pleased to dismiss the
application for condonation of delay in bringing on record the
legal representatives of the appellant no. 2 as also the application
for bringing the legal representatives on record on account of the
inordinate delay with liberty to raise the issue of abatement of
appeal at the time of hearing of the appeal.
9. To examine the question of abatement of appeals, it may be
relevant to take note of the fact that initially the suit was filed by
the plaintiffs/respondents for declaration of title in respect of 3
schedule properties ‘A’, ‘B’ and ‘C’ and the trial Court as well as
the High Court have partly decreed the suit holding the
entitlement of the title of the plaintiffs/respondents in reference
to suit schedule ‘A’ and ‘B’ properties. All the three
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defendants/appellants to the suit are real brothers and written
statement was filed by the first defendant/appellant and adopted
by other two defendants/appellants set up a rival title to the suit
schedule properties by claiming to have succeeded to them from
one common ancestor Smt. Gole Sattemma(foster daughter of
Yendru Kannayyafather of the plaintiff).
10. Taking note of the pleadings of the parties and the claims
set up by the defendants that they are coowners of the suit
schedule properties(each being entitled to an equal and
undivided share), having derived their title from one common
ancestor and are similarly placed and identically situated.
11. From the factual backdrop of matter, what has emerged is
that the judgment and decree passed by the trial Court has
become final qua the appellant no. 2(defendant no. 2) on the
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appeal stood abated qua him vide order dated 24 July, 2009
passed by this Court.
12. The submission of the learned counsel for the
respondents/plaintiffs is to permit the remaining appellants to
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prosecute the civil appeals and, in the event, they were to
succeed, there would be two mutually inconsistent/contradictory
decrees inasmuch as the suit has already been decreed qua the
appellant no. 2(defendant no. 2) on the one hand and the suit
would stand dismissed qua appellant nos. 1 & 3(defendant nos. 1
& 3) on the other and without clear demarcation and delineation
of the properties(which has not yet happened), it would be
impossible for the plaintiffs/respondents to enforce decree qua
the defendant no. 2 without impinging on the rights of the
defendant nos. 1 and 3(appellant nos. 1 & 3).
13. To counter the submission, learned counsel for the
appellants submit that the appellant nos. 1 & 3(defendant nos. 1
& 3) are the real brothers of appellant no. 2 and they have their
distinct shares and rights regarding title in the suit properties
which they had inter se divided and settled amongst themselves
and was the subject matter of the suit which was decreed by the
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trial Court dated 12 October, 1995. Learned counsel further
submits that the judgment of the trial Court recognises separate
and distinct rights of the appellant nos. 1, 2 & 3(defendant nos.
1, 2 & 3) and the High Court while dismissing the appeal filed by
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the appellants and the plaintiffs/respondents having preferred
cross objections with regard to nongrant of reliefs prayed for
declaration of title of schedule ‘C’ properties itself makes it
evident that the defendants had their own distinct and
substantive rights in the schedule ‘A’, ‘B’ and ‘C’ properties as
claimed in the plaint especially in view of the fact that both the
appellants and the respondents herein having preferred their
respective appeals before the High Court and also before this
Court and in support of his submission placed reliance on the
judgment of this Court in
Sardar Amarjit Singh Kalra(Dead)
by LRs and Others Vs. Pramod Gupta(Smt)(Dead) by LRs and
reported in 2003(3) SCC 272.
Others
14. For the sake of repetition, learned counsel for the appellants
further submits that appellant nos. 1 & 3(defendant nos. 1 & 3)
had a distinct and separate right which cannot be said to have
extinguished on account on nonsubstitution of the legal
representatives of appellant no. 2 and their right to substitution
could not be taken away by taking note of technicalities and this
Court has ample power under Order 41 Rule 4 of Code of Civil
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Procedure(hereinafter being referred to as “CPC”) to do
substantial justice.
15. In this factual background, it will be apposite to first take
note of the principles laid down in respect of abatement of
appeals. Order 22 Rule 4(3) CPC specifies that a suit/appeal
shall abate as against the deceased defendant where no
application is made to bring on record the legal representatives of
the deceased defendant within the time stipulated. Further,
Order 22 Rule 9 CPC specifies the effect of abatement inasmuch
as it is clarified that no fresh suit is maintainable in respect of
the same cause of action.
16. The primary role of the Court is to adjudicate the dispute
between the parties and to advance substantial justice.
Inasmuch as the abatement results in denial of hearing on the
merits of the case, the provision of abatement has to be
construed within the strict parameters of law. Abatement of suit
for failure to move an application for bringing the legal
representatives on record within the prescribed period of
limitation is by operation of law but once the suit has abated as a
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matter of law, though there may not have been passed on record
a specific order dismissing the suit as abated, yet the legal
representatives proposing to be brought on record or any other
applicant proposing to bring the legal representatives of the
deceased party on record would seek for the setting aside of an
abatement.
17. The question arises in reference to the effect of abatement
qua the appellants(plaintiffs or defendants), as the case may be,
where the decree is joint and indivisible, the appeal against the
other defendants will be proceeded with and in the event of
appeal to succeed, there will be two mutually
inconsistent/contradictory decrees and more particularly when
the suit has already been decreed qua one defendant and the suit
would stand dismissed qua the other defendants, in such a given
situation, tests have been laid down by this Court to determine
as to whether or not to proceed with the appeal.
18. This Court while adverting to Order 22 Rule 4 CPC against
the other respondent in State of Punjab Vs. Nathu Ram AIR
1962 SC 89 observed as under:
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“6. The question whether a Court can deal with
such matters or not, will depend on the facts of each
case and therefore no exhaustive statement can be
made about the circumstances when this is possible or
is not possible. It may, however, be stated that
ordinarily the considerations which weigh with the
Court in deciding upon this question are whether the
appeal between the appellants and the respondents
other than the deceased can be said to be properly
constituted or can be said to have all the necessary
parties for the decision of the controversy before the
Court. The test to determine this has been described in
diverse forms. Courts will not proceed with an appeal
(a) when the success of the appeal may lead to the
Court's coming to a decision which be in conflict with
the decision between the appellant and the deceased
respondent and therefore which would lead to the
Court's passing a decree which will be contradictory to
the decree which had become final with respect to the
same subject matter between the appellant and the
deceased respondent; (b) when the appellant could not
have brought the action for the necessary relief against
those respondents alone who are still before the Court
and when the decree against the surviving
(c)
respondents, if the appeal succeeds, be ineffective, that
is to say, it could not be successfully executed.”
19. The exposition of the Constitution Bench in
Sardar
Amarjit Singh Kalra (Dead) by LRs and others (supra) is as
under:
“34. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners
are found to have distinct, separate and independent
rights of their own and for the purpose of convenience
or otherwise, joined together in a single litigation to
vindicate their rights the decree passed by the Court
thereon is to be viewed in substance as the
combination of several decrees in favour of one or the
other parties and not as a joint and inseverable decree.
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The same would be the position in the case of
defendants or respondents having similar rights
contesting the claims against them.
(2) Whenever different and distinct claims of more than
one are sought to be vindicated in one single
proceedings as the one now before us, under the Land
Acquisition Act or in similar nature of proceedings
and/or claims in assertion of individual rights of
parties are clubbed, consolidated and dealt with
together by the Courts concerned and a single
judgment or decree has been passed, it should be
treated as a mere combination of several decrees in
favour of or against one or more of the parties and not
as joint and inseparable decrees.
(3) The mere fact that the claims or rights asserted or
sought to be vindicated by more than one are similar
or identical in nature or by joining together of more
than one of such claimants of a particular nature, by
itself would not be sufficient in law to treat them as
joint claims, so as to render the judgment or decree
passed thereon a joint and inseverable one.
(4) The question as to whether in a given case the
decree is joint and inseverable or joint and severable or
separable has to be decided, for the purposes of
abatement or dismissal of the entire appeal as not
being properly and duly constituted or rendered
incompetent for being further proceeded with, requires
to be determined only with reference to the fact as to
whether the judgment/decree passed in the
proceedings visavis the remaining parties would
suffer the vice of contradictory or inconsistent decrees.
For that reason, a decree can be said to be
contradictory or inconsistent with another decree only
when the two decrees are incapable of enforcement or
would be mutually selfdestructive and that the
enforcement of one would negate or render impossible
the enforcement of the other.”
20. It was further considered in Budh Ram and Others Vs.
2010(11) SCC 476 and the principle,
Bansi and Others
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therefore, emerges is to test whether the judgment/decree passed
in the proceedings visàvis the remaining parties would suffer
from the vice of contradictory or inconsistent decrees inasmuch
as the two decrees are incapable of enforcement or would be
mutually selfdestructive and that the enforcement of one would
negate or render impossible the enforcement of the other.
21. Applying the aforesaid principles, the facts of the instant
cases on hand clearly manifest that the judgment and decree
passed by the trial Court became final qua appellant no.
2(defendant no. 2) upon abatement of the appeal qua him vide
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order dated 24 July, 2009. If this Court would permit the
remaining appellants to prosecute the appeals and, in the event
they were to succeed, indisputedly, there would be mutually
inconsistent/contradictory decrees inasmuch as the suit has
already been decreed qua appellant no. 2(defendant no. 2) on the
one hand and the suit would stand dismissed qua appellant nos.
1 & 3(defendant nos. 1 & 3) or decreed against them in reference
to schedule ‘C’ property and not against appellant no.
2(defendant no. 2) due to dint of cross appeal filed by the
plaintiff.
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22. If the instant appeals were to be allowed, the same would
result in a situation where the enforcement of the two decrees
would be in executable and the enforcement of one would negate
or render impossible the enforcement of the other and to further
simplify, the plaintiffs/respondents would be entitled to the share
of the appellant no. 2(defendant no. 2) in the suit schedule ‘A’
and ‘B’ properties and there is no way he could enforce the same
without negating the enforcement of the other decree viz.
dismissal of the suit qua appellant nos. 1 & 3(defendant nos. 1 &
3) since the suit schedule properties each constitute a single unit
and the same has not yet been demarcated and/or divided
amongst the defendants and without such clear demarcation and
delineation of the properties, indisputedly, which has not yet
happened, it would be impossible for the plaintiffs/respondents
to enforce decree qua the appellant no. 2(defendant no. 2)
without impinging on the rights of the appellant nos. 1 &
3(defendant nos. 1 & 3).
23. The submission of learned counsel for the appellants that
even if the appeal stood abated qua the appellant no. 2, the other
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appellants would be entitled to prosecute the appeals relying on
the principle of Order 41 Rule 4 & 33 CPC. Suffice it to say that
once the appeal stood abated against the appellant no.
2(defendant no. 2) and the decree which stands confirmed qua
the appellant no. 2(defendant no. 2) cannot indirectly be
reopened to challenge at the behest of persons claiming through
him by relying on provisions of Order 41 R 4 & 33 CPC as prayed
for.
24. Learned counsel for the appellants has made efforts to
persuade us that the plaintiff himself has acknowledged in the
plaint regarding the internal division/demarcation of the suit
schedule properties, the submission appears to be factually
incorrect as nowhere in the plaint, the plaintiff has acknowledged
any such internal division/demarcation of the suit schedule
properties. Although there was a statement made by the
appellants/defendants in para 11 of the written statement that
the schedule ‘A’ property has fallen to the share of the appellant
no. 1(defendant no. 1) and schedule ‘B’ property has fallen to the
share of appellant no. 2(defendant no. 2) but the assertion has no
foundation/basis and there was no issue framed by the trial
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Court and admittedly no finding has been rendered in this
regard. In the absence of such finding being rendered by the
trial Court, the selfserving assertion made by the
defendants/appellants cannot be an evidence of the fact that the
suit schedule properties have been divided and demarcated
among the defendants/appellants.
25. After going through the decree of the trial Court and
confirmed by the High Court in appeal, of which a reference has
been made by us in detail and taking note of the tests laid down
by this Court, in our considered view both the appeals stand
abated in toto.
26. We find substance in the preliminary objection raised by the
respondents and both the appeals stand abated and accordingly
dismissed.
27. Pending application(s), if any, stand disposed of.
…………………………..J.
(A.M. KHANWILKAR)
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…………………………..J.
(AJAY RASTOGI)
New Delhi
April 26, 2019
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