* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO.No.374/2010
% Reserved on:15.02.2011
Decided on: 23.02.2011
ASHA SEHGAL & ORS .... Appellant
Through: Mr. A P S Ahluwalia, Sr.Advocate with
Mr.S.S.Ahluwalia, Advocate
Versus
RAJINDER KUMAR SEHGAL .... Respondent
Through: Mr.Maninder Jeet Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be Yes
allowed to see the judgment?
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in Yes
the Digest?
: MOOL CHAND GARG, J.
*
1. The appellant is aggrieved of the order passed by the Additional
District Judge dated 2.5.2009, whereby the ld.Judge has allowed the
appeal filed by the respondent against the order passed by the ld.Civil
Judge, Delhi dated13.04.2007 in Suit No. 13/06/03, whereby the
application filed by the respondent under Order 1 Rule 10 and Order 22
Rule 3 CPC was dismissed and it was further ordered that in the
absence of any legal heir of the deceased Smt.Agyawati Sehgal, who is
the plaintiff in the suit, the suit also stands abated.
2. Briefly stating, the facts giving rise to filing of this appeal are that
Smt.Agyawati Sehgal had filed a suit for possession and damages for
use and occupation being mesne profits and for permanent injunction
against the appellant claiming to be the absolute owner in possession of
the entire property bearing No. B-10/19, Rajouri Garden, New Delhi,
having inherited the same from her husband late Sh. Maya Ram Sehgal.
Reliance was placed upon the will and testament dated 15.04.1968
executed by her husband Maya Ram Sehgal.
FAO No. 374/2010 Page 1 of 9
3. Appellants, who are the defendants in the suit, contested the
alleged claim of Smt.Agyawati Sehgal. According to them they had been
living in the first floor as co-owners since 1961 because late Sh. Maya
Ram Sehgal and Sh.Ram Rakha Mal were real brothers and was a joint
family before partition of the country in 1947. Sh. Ram Rakha Mal died
before the partition of the country. Subsequently, the whole family
migrated to Delhi from Lahore. Late Sh.Maya Ram Sehgal was the
karta of the family which consisted of Sh.Maya Ram Sehgal,
Sh.TirathRam, son of late Sh.Ram Rakha Mal and his two sons
Sh.Surinder Kumar Sehgal and Sh.Rajinder Kumar Sehgal at Delhi.
The family occupies house No. 9048 and 9049 in Gali No.1, Multani
Dhanda, Paharganj, New Delhi. Then the family purchased the plot
bearing No. B-10.19, Rajouri Garden, New Delhi in the name of
Sh.Maya Ram Sehgal and a two storeyed house was built, the
construction of which was completed in 1961. Family of both Sh.Maya
Ram Sehgal and Sh.Tirath Ram Sehgal including Sh.Surinder Kumar
Sehgal started living in the new house in Rajouri Garden in the year
1961. The late plaintiff, Smt.Agywati Sehgal and her husband Sh.Maya
Ram Sehgal had no issue, but treated Sh.Surinder Kumar Sehgal as
their son. Smt.Agyawati Sehgal had arranged the marriage of appellant
no.1 with Sh.Surinder Kumar Sehgal in the same demised house and
therefore, they have continued to live since 1961 on the first floor. The
allegations of late plaintiff in the plaint were specifically denied that the
appellants and their late father Sh.Surinder Kumar Sehgal were living
on licence basis in the premises. It is also the case of the appellants
that Sh.Maya Ram Sehgal, before his death on 11.10.1968 had left his
final will dated 15.4.1968 under which he had bequeathed the demised
house in favour of both Smt.Agyawati Sehgal and Sh.Surinder Kumar
Sehgal. Hence under the said will they became co-owners.
4. Unfortunately, Smt.Agyawati Sehgal died on 22.02.2011. The
present respondent filed an application alleging himself as the legal
representative under the will left by Smt.Agyawati Sehgal and applied
for his substitution under Order XXII Rule 3 CPC r/w Order X Rule 1
CPC.
FAO No. 374/2010 Page 2 of 9
5. The learned Civil Judge held a summary enquiry by recording
evidence within the meaning of Order XXII Rule 5 CPC after framing an
issue and returned a finding that neither the respondent was the legal
representative nor he had any right to sue against the appellants and
hence the application was rejected vide order dated 13.04.2007
declaring the suit to have abated by making a passing reference.
6. The respondent then preferred an appeal against the aforesaid
order of the ld. Civil Judge. The appellants took a preliminary objection
as to the maintainability of the appeal. It was their submission that no
appeal was maintainable under law against the order of rejection of
application dated 13.04.2007 filed under Order XXII Rule 3 and 5 CPC.
The appeal was also belated. However, the delay was condoned and
after hearing arguments the ld. ADJ has allowed the appeal and
remanded the matter before the ld. Civil Judge for disposal of the suit
on merits vide order dated 02.05.2009.
7. It is this order which has been appealed against by the appellant,
who contends that in the absence of any provisions available in CPC
entitling the respondent to file an appeal against the order of the ld.
Civil Judge, the ld. ADJ had no jurisdiction to entertain the appeal filed
by the respondent and thereby, remanding the matter to the ld.Civil
Judge as has been done by the impugned order.
8. According to the appellant no appeal lies against an order
dismissing an application under Order 1 Rule 10 and Order 22 Rule 3
CPC. It is submitted that such an order is not a decree within the
meaning of Section 2(2) CPC and, therefore, no appeal lies under
Section 96 r/w Order XLI Rule 1 CPC. It is also submitted that such an
order does not adjudicate upon any right of the parties on merits and
therefore, Section 11 CPC is not attracted. It is further submitted that
there is a specific provision under Order XXII Rule 9(1) CPC that no
fresh suit could be brought on the same cause of action. The only
course open to a party is to seek the remedy for setting aside
abatement. Of course, an order refusing to set aside abatement is
appealable under Order XLIII Rule 1(k) CPC. Even such an order
passed cannot be styled as decree within the meaning of Section 2(2)
CPC.
FAO No. 374/2010 Page 3 of 9
9. The appellant has relied upon the following judgments:-
(i) Madan Naik (dead by LRs) & Ors. Vs. Hansubala
Devi & Ors., AIR 1983 SC 676;
(ii) Amakka Shiva Narandekar Vs. Dedubhau
Narandekar, (2005) 5 Bom CR 350: 2005 (1) Mh.L..J.
1129;
(iii) Anupama Vs. Bhagwan Dass & Ors., 111(2004) DLT
143;
(iv) Venkatakrishna Reddi & Ors. Vs. Krishna Reddi,
AIR 1926 Madras 586;
(v) Gautam Bhawan Nirman Sahkari Samiti, Ltd.,
Jodhpur Vs. Ramnik Kumari & Ors., AIR 2005
Rajasthan 161;
(vi) Anang Pal Vs. Pearey Lal & Ors., AIR 1986 Punjab
and Haryana 87;
(vii) Ram Charan Das Vs. Hira Nand, AIR (32)
1945 Lahore 296;
(viii) Babulal Vs. Jugalkishor & Ors., AIR 1954
Nagpur 254;
(ix) K.Venkata Seshamma Vs. K Guneswara Rao, 1924
Madras 622;
(x) Baij Nath & Anr. Vs. Munna Lal, AIR 1963
Allahabad 389;
(xi) Srinivasa Mudaliar Vs. Abraham Pillai, AIR (37)
1950 Madras 824;
10. It is the submissions of the appellant that the respondent even
otherwise had no right to file an appeal without the leave of the court.
More so, when the order passed on the application under Order XXII
Rule 3 CPC dismissing the same was neither a decree nor a judgment.
11. It is submitted that in view of the aforesaid, the first appellate
court had no jurisdiction to entertain the appeal filed by the respondent
against the order of the ld. Civil Judge and, therefore, any direction
given by the first appellant court is not sustainable in law. Reference
has also been made to the following judgments:-
(i) Banarsi & Ors. Vs. Ram Phal, AIR 2003 SC 1989;
FAO No. 374/2010 Page 4 of 9
(ii) Shivaraya Vs. Siddamma & Anr., AIR 1963 Mysore
127;
(iii) State of Kerala Vs. Madhavkurup Ramchandran
Pillai, AIR 1999 Kerala 359; and,
(iv) (Gopisetti)Veeraswami & Ors. Vs. Sagiraju
Seetharama Kantayya, AIR 1926 Madras 1089.
12. It is also submitted that once an objection was taken by the
appellant with regard to the maintainability of the appeal, the appellate
court could not have assumed jurisdiction to hear an appeal without
deciding the preliminary objection.
13. On the other hand, the learned counsel appearing for the
respondent has submitted that in addition to dismissing an application
under Order I Rule 10 CPC and Order XXII Rule 3 CPC, the ld. Civil
Judge has simultaneously dismissed the suit of the appellant as
abated. It is thus submitted that the order comes within the definition
of a decree as per the provisions of Section 2(2) CPC, which defines the
decree as,
(2) “decree” means the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary
or final. It shall be deemed to include the rejection of a
plaint and the determination of any question within
[3]* * * section 144, but shall not include-
(a) any adjudication from which an appeal lies as an
appeal from an order, or
(b) any order of dismissal for default.
Explanation-A decree is preliminary when further
proceedings have to be taken before the suit can be
completely disposed of. It is final when such
adjudication completely disposes of the suit, it may be
partly preliminary and partly final;
14. It is thus submitted that in view of the observations made by the
ld. Civil Judge while disposing of the entire suit, the decree passed by
the ld. Civil Judge became appealable as a regular appeal under Section
96 CPC. Reference has been made to Suppu Nayakan Vs. Perumal
FAO No. 374/2010 Page 5 of 9
Chetty, AIR 1917 Madras 285, Silla Jagannadha Prasad Vs. Silla Lalitha
Kumari, AIR 1989 AP 8 and 1978 WLN(UC) 52(53).
15. To appreciate the controversies between the parties, it would be
appropriate to take note of the impugned order passed by the ld. Civil
Judge in this case on 13.04.2007 as also the judgments relied upon by
both sides which clarifies the legal position.
16. The appellant had relied upon a judgment of the Apex Court as
delivered in the case of Madan Naik (dead by LRs) & Ors. Vs. Hansubala
Devi & Ors. (supra), wherein while dealing with the definition of decree
as provided for under Section 2(2) CPC and the right to appeal, if any,
in case of dismissal of application for brining on record the legal heirs,
has been discussed. The relevant observations made by the Apex Court
are reproduced hereunder:-
5. Order 22, Rule 11 of the CPC read with Order 22
Rule 4 makes it obligatory to seek substitution of the
heirs and legal representatives of deceased respondent
if the right to sue survives. Such substitution has to
be sought within the time prescribed by law of
limitation. If no such substitution is sought, the
appeal will abate. Sub-rule (2) Rule 9 of Order 22
enables the party who is under an obligation to seek
substitution to apply for an order to set aside the
abatement and if it is proved that he was prevented by
any sufficient cause from continuing the suit which
would include an appeal, the Court shall set aside the
abatement. Now where an application for setting aside
an abatement is made, but the Court having not been
satisfied that the party seeking setting aside of
abatement was prevented by sufficient cause from
continuing the appeal, the Court may decline to set
aside the abatement. Then the net result would be that
the appeal would stand disposed of as having abated.
It may be mentioned that no specific order for
abatement of a proceeding under one or the other
provision of Order 22 is envisaged, the abatement
takes place on its own force by passage of time. In fact,
a specific order is necessary under Order 22 Rule 9, C.
P. C. for setting aside the abatement.
8. Section 2 Sub-section (2) of the CPC defines ‘decree’
to mean “the formal expression of an adjudication
which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with
regard to allow any of the matters in controversy in the
suit and may be either preliminary or final. It shall be
deemed to include the rejection of a plaint and the
FAO No. 374/2010 Page 6 of 9
determination of any question within Section 144 but
shall not include any adjudication from which an
appeal lies as an appeal from an order.” When an
appeal abates for want of substitution as envisaged by
Sub-rule 1 of Rule 9 of Order 22, it precludes a fresh
suit being brought on the same cause of action. It is a
specific provision. If abatement implied adjudication
on merits, Section 11 of C.P.C. would be attracted.
Abatement of an appeal does not imply adjudication
on merits and hence a specific provision had to be
made in Order 22 Rule 9(1) that no fresh suit could be
brought on the same cause of action. Therefore when
the appeal abated there was no decree, disposing of
the first appeal, only course open is to move the court
for setting aside abatement. An order under Order 22
Rule 9(2) C.P.C. refusing to set aside abatement is
specifically appealable under Order 43 Rule 1(k). Such
an adjudication if it can be so styled would not be a
decree as defined in Section 2(2) C.P.C. Section 100
provides for second appeal to the High Court from
every decree passed in appeal by any Court
subordinate to the High Court on the grounds therein
set out. What is worthy of notice is that a second
appeal lies against a decree passed in appeal. An order
under Order 22 Rule 9 appealable as an order would
not be a decree and therefore, no second appeal would
lie against that order. Such an appeal is liable to be
rejected as incompetent.
17. On the strength of the aforesaid judgment, it is submitted that in
this matter the order of the ld. Civil Judge in having dismissed the
application under Order XXII Rule 3 CPC r/w Order I Rule 10 CPC and
in having refused to allow the respondent to be impleaded as party to
the suit and thereafter, making a passing reference that the suit stands
abated not a decree which becomes appealable as it was not an order
refusing to set aside the abatement under Order XL Rule 1(k) CPC.
18. In the case of Amakka Shiva Narandekar (supra) in a similar
situation, the Bombay High Court has observed that appeal is
maintainable only against an order refusing to set aside the abatement
or dismissal of suit. Since against an order deciding that ‘J’ was not
legal representative of deceased and therefore the suit was abated no
application has been moved for setting aside the abatement, Order XXII
Rule 9 would not come into play. As there is no application for setting
aside abatement, there cannot be any refusal to do so. Order passed
FAO No. 374/2010 Page 7 of 9
would not be appealable under Order XLIII Rule 1(k) CPC. The relevant
paragraph is reproduced hereunder:-
6. Sub-rule (2), therefore, stipulates that a person who
claims to be the legal representative of the deceased
plaintiff or assignee, may apply to the Court to set
aside the abatement or dismissal. The Court may set
aside the abatement and dismissal of the suit on such
terms as it thinks fit if it is found that the party was
prevented by sufficient cause from continuing with the
suit. Under Order 43 Rule 1(k), it is only if an order
under Rule 9 of Order 22, refusing to set aside the
abatement or dismissal of the suit is passed that an
appeal is maintainable. A perusal of the impugned
order indicates that there is no application made for
setting aside the abatement of the suit. Instead, what
has been done after Amakka expired on 19.6.1984, the
appellant-Jaipal filed an application within time before
the appellate Court for substituting his name as the
legal representative of Amakka. He claimed his status
on the basis of a will left behind by Amakka on
20.8.1979. The trial Court had referred the issue as to
the validity of the will and for recording the findings as
to who was the legal representative of Amakka. The
trial Court had by a detailed order, held that Jaipal
was not the legal representative. These findings of the
trial Court arrived at on a reference made to it under
Order 22 Rule 5 were accepted by the appellate Court
who declared that Amakka could not be represented
by Jaipal. It was also held that the appeal had abated
as the appellant had died.
19. A full Bench of Madras High Court in the case of Venkatakrishna
Reddi (supra) has taken a similar view that no appeal lies against an
order refusing the application of a person to be brought on record as
the legal representative of a deceased plaintiff on the objection of the
defendant even when there is no rival claimant for being brought on the
record as his legal representative. Same is the view taken by the
Rajasthan High Court in the case of Gautam Bhawan Nirman Sahkari
Samiti Ltd. (supra).
20. In the case of Ram Charan Das (supra) a Full Bench of Lahore
High Court has observed that the decision of the trial judge as to the
alleged legal representative not having been proved to be the legal
representative of the deceased party is not open to appeal. From the
mere observation by the Judge in a casual manner, that the right to sue
FAO No. 374/2010 Page 8 of 9
did not survive after the death of the deceased party, the Judge should
not be deemed to have passed an order abating the suit from which an
appeal may be maintained as an appeal from a decree. It having
already been decided by the Judge that the alleged legal representative
was not the legal representative of the deceased he could not, so long as
the order stood, claim a right to appeal form the order of abatement as
a legal representative of the original party.
21. The other judgments relied upon by the appellant also supports
the contention that when an application under Order XXII Rule 3 CPC
is dismissed declining the applicant to be taken as a legal
representative and the suit stands abated in the absence of any other
person to continue with the suit, an appeal would not lie against the
order dismissing an application under Order XXII Rule 3 CPC.
22. The judgments cited on behalf of the respondent i.e. Suppu
Nayakan Vs. Perumal Chetty (supra), Silla Jagannadha Prasad Vs. Silla
Lalitha Kumari (supra) and 1978 WLN(UC) 52(53) (supra) are
distinguishable in the light of the judgments delivered by the Apex
Court and other courts as quoted above. Hence, are of no help to the
case of the respondent.
23. In view of the aforesaid legal position, it is apparent that no
appeal was maintainable against the order of the ld. Civil Judge. The
entertainment of the appeal by the ld. ADJ against the order of the ld.
Civil Judge was not in accordance with law. Thus, remanding back the
matter to the ld. Civil Judge by the ld. ADJ cannot be sustained. The
impugned order is therefore set aside. Accordingly, the appeal is allowed
with no orders as to costs. It is made clear that nothing stated herein
would prevent the respondent to take recourse to other legal remedies
as may be available to him and nothing stated herein would cast any
aspersions on the merits of the case. TCR be sent back forthwith along
with a copy of this order
CM No. 18329/2010
Interim orders are made absolute.
Application stands disposed of.
MOOL CHAND GARG,J
FEBRUARY 23, 2010
‘dc’
FAO No. 374/2010 Page 9 of 9