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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6850-6851 ............ of 2008
@
SPECIAL LEAVE PETITION (C) NOs.7099-7100 of 2008
Om Prakash Marwaha (D) Thr. LRS. & Ors. Appellants
Vs.
Jagdish Lal Marwaha (D) Thr. LRS ...Respondents
With
Civil Appeal No...6852.. of 2008
(Arising out of SLP(C) No. 3856 of 2007)
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted in both the Special Leave
Petitions wherein the parties are the same and
both arise out of orders passed by the Delhi
High Court in RSA No.126 of 1989.
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2. The appellants herein are the legal
representatives of the original defendant,
Nanak Chand in a suit brought against him by
Jagdish Lal Marwaha, the predecessor-in-
interest of the respondents, to makeover vacant
and peaceful possession of quarter No. 37-38,
Block No.C-I, Malkaganj, Delhi, and,
thereafter, not to interfere with the
plaintiff’s possession therein. On the suit
being dismissed, the plaintiff, Jagdish Lal
Marwaha, filed a First Appeal in the Court of
Additional District Judge. While the First
Appeal was pending, Nanak Chand died on 3rd
January, 1985, and apparently an application
for substitution of his legal heirs was made in
the pending appeal. The said application,
however, remained pending and undisposed of,
though the appeal was finally decided.
Consequently, although, an application had been
made for substitution, the heirs of deceased,
Nanak Chand, were not brought on record in the
first appeal and as a result when the decree
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was drawn up it was drawn up against Nanak
Chand, who, as mentioned hereinabove had died
during the pendency of the appeal.
3. Although, no formal order of substitution had
been made, the legal representatives of Nanak
Chand filed a second appeal before the High
Court, which was ultimately dismissed on 12th
December, 1991, with the judgment and decree of
the First Appellate Court being affirmed.
However, since the legal heirs of deceased
Nanak Chand had not been brought on the records
of the first appeal, a decree in terms of the
judgment passed by the High Court in the
Regular Second Appeal could not be drawn up and
as a result, the decree passed by the First
Appellate Court and affirmed by the High Court
in second appeal could not be executed. An
application, being CM 2873 of 1998, was
thereupon filed by the legal heirs of the
plaintiff decree-holder in the second appeal
praying for rectification of the judgment and
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decree drawn up by the First Appellate Court or
in the alternative to draw-up a fresh decree in
the second appeal in terms of the order dated
12th December, 1991, dismissing the appeal.
4. The aforesaid application was strongly opposed
on behalf of the respondents on the ground of
maintainability. It was alleged that the
applicants had no locus standi to file an
application, as they were not the legal
representatives of the plaintiff, Jagdish Lal
Marwaha.
5. The aforesaid submission did not find favour
with the High Court since by an order dated
23rd January, 2004, they had been substituted
in place of the original plaintiff, Jagdish Lal
Marwaha as his legal representatives.
Furthermore, when the appeal was dismissed on
12th December, 1991, they were parties to the
appeal. The application was, therefore,
allowed with a direction upon the Registry of
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the High Court to draw up the decree in the
second appeal mentioning the names of the
parties of the appeal at the time the same was
finally disposed of. The said order is the
subject matter of challenge in SLP(C) No.3856
of 2007, which is being heard along with SLP(C)
No. 7099-7100 of 2008.
6. At this juncture, it may be stated that two
applications, being CM Nos. 584 and 585 of
2003, were filed by the legal representatives
of Jagdish Lal Marwaha, the plaintiff in the
suit, for bringing them on record as the legal
representatives of the deceased plaintiff and
for condonation of delay in making the
application. It was sought to be explained
that since an application had already been made
under Order 22 Rule 3 read with Section 151 of
the Code of Civil Procedure, on which no order
had been passed, the applicants had been
advised that they were not required to file a
separate application for the same purpose.
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Accepting the explanation, the Delhi High Court
allowed both the applications and directed the
Memo of Parties to be amended accordingly. SLP
(C) Nos. 7099-7100 of 2008 was filed against
the said order of the High Court.
7. Appearing for the appellants, Mr. Hasnain,
learned advocate, urged that once the second
appeal had been disposed of, it was no longer
open to the High Court to entertain the several
applications filed on behalf of the
plaintiffs/respondents to allow the heirs of
the deceased-plaintiff to rectify the cause-
title of the said appeal. Mr. Hasnain
submitted that when the first appeal filed by
the plaintiff had been allowed and the judgment
of dismissal of the suit had been reversed,
and, thereafter, confirmed in second appeal and
the review therefrom had been dismissed, it was
no longer within the jurisdiction of the High
Court to allow the decree of the first appeal
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to be amended when the same had been drawn up
against a dead man.
8. Mr. Hasnain submitted that the procedure
adopted by the High Court was not in consonance
with law and legal procedures and the orders
impugned therein were, therefore, liable to be
set aside.
9. Appearing for the respondents, Mr. Iyer,
learned senior advocate, submitted that
undoubtedly the suit filed by the predecessor-
in-interest of the respondent was decreed in
the First Appeal. The said decree was also
confirmed by the High Court in Second Appeal.
Learned counsel submitted that apart form the
above, an application had been duly made by the
plaintiff for substitution of the deceased
defendant, but through inadvertence no order
had been passed thereupon and the decree came
to be drawn up against Nanak Chand, who had
died.
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10. Mr. Iyer submitted that since the default
leading to the passing of the decree against a
dead person was not wholly on account of any
negligence on the part of the plaintiff or his
legal heirs, they should not be made to suffer
on account of such technicality and there was,
therefore, no reason for this Court to
intervene in the matter under Article 136 of
the Constitution.
11. In support of his submission, Mr. Iyer firstly
referred to a decision of a Three-Judge Bench
of this Court in Jang Singh vs. Brij Lal, [AIR
1966 SC 1631] wherein this Court was called
upon to consider whether a litigant should
suffer on account of the lapse made by an
officer of the Court. Applying the well known
maxim, actus curiae neminem gravabit – that
an act of Court should do no harm to a
litigant, this Court held that the mistake
should be rectified by the Court and the
parties relegated to the position on the date
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when the mistake occurred. Mr. Iyer also
referred to the decision of this Court in N.
Suriyakala vs. A. Mohandoss, [2007 (9) SCC
1960] where, in considering the scope and
object of Article 136 of the Constitution, it
was explained that the same was a residual
provision which enabled this Court to interfere
with the judgment and order of any Court or
Tribunal in India in its discretion. Laying
emphasis on the phrase “in its discretion”,
this Court held that jurisdiction under Article
136 was meant to deal with important issues and
to deal with important questions relating to
the Constitution or the law or where grave
injustice had been done.
12. Mr. Iyer submitted that this was not a case
which called for any interference by this Court
under Article 136 of the Constitution.
13. Having carefully considered the submissions
made on behalf of the respective parties, we
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are also inclined to hold that the facts of
this case do not warrant any interference with
the orders impugned in these two appeals.
Admittedly, the original defendant, Nanak
Chand, had died during the pendency of the
First Appeal, but it is equally important that
an application for substitution of his legal
heirs had been made though no order has been
passed thereupon and a decree was consequently
drawn up against the original defendant who had
already expired. The legal heirs of the
plaintiff had brought the fact of the death of
the sole defendant to the notice of the Court,
but it is through sheer inadvertence that the
substitution was not effected. However, in the
Second Appeal, the legal representatives of the
original plaintiff, Jagdish Lal Marwaha, were
make parties by the heirs of the deceased
defendant, Nanak Chand, who are the appellants
herein. The heirs of both the plaintiffs and
the defendants were, therefore, duly
represented before the High Court in the Second
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Appeal and it is essentially a technicality
which has prevented the heirs of the plaintiff
from enjoying the benefits of the decree passed
in favour of the plaintiff.
14. We are convinced that this is a fit case where
applying the above-mentioned maxim, this Court
should not interfere with the orders passed by
the High Court.
15. We, accordingly, dismiss both the appeals but
without any orders as to costs.
_______________J.
(ALTAMAS KABIR)
_______________J.
(MARKANDEY KATJU)
New Delhi
Dated: 26.11.2008