PETITIONER:
JAYARAMA REDDY & ANR.
Vs.
RESPONDENT:
REVENUE DIVISIONAL OFFICER & LAND ACQUISITION OFFICER,KURNOO
DATE OF JUDGMENT23/03/1979
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
DESAI, D.A.
CITATION:
1979 AIR 1393 1979 SCR (3) 599
1979 SCC (3) 578
ACT:
Code of Civil Procedure, 1908-Order XXII r. 4-Scope of-
Cross appeals-Legal representatives of deceased appellant
brought on record-Appellant in cross-appeal failed to bring
them on record of cross appeal-Cross appeal-If abates-No
objection raised before the High Court-If could be raised in
further appeal.
HEADNOTE:
Order XXII Rule 4 (1) CPC provides that where one of
two or more defendants dies and the right to sue does not
survive against the surviving defendant or defendants alone,
the court, on an application made in that behalf, shall
cause the legal representative of the deceased defendant to
be made a party and shall proceed with the suit. Sub-rule
(3) of the Rule provides that where, within the time limited
by law, no application is made under sub-rule (1) the suit
shall abate as against the deceased defendant.
The land in dispute, which belonged to three persons,
was acquired by the State Government for a public purpose
and the market value was fixed at Rs. 2/- per square yard.
On appeal by the claimants, it was raised to Rs. 12/-per
square yard. Against the order of Subordinate Judge, both
the State and the claimants filed appeals before the High
Court.
While the appeals were pending before the High Court,
one of the claimants died. The legal representatives of the
deceased claimant were brought on record in the claimant's
appeal, but the Government took no steps to bring the legal
representatives of the deceased claimant on record in the
appeal filed by it.
Dismissing the claimant's appeal and allowing the
Government appeal the High Court reduced the price of the
acquired land to Rs. 4/- per square yard.
In appeal before this Court the claimants contended
that since the legal representatives of the deceased
claimant were not brought on record within the period of
limitation, the Government appeal abated and stood
dismissed.
Dismissing the appeal,
^
HELD: (per Shinghal, J.) 1. It is not correct to say
that the Government appeal stood dismissed against the
surviving respondents because the Government failed to bring
the legal representatives of the deceased claimant on record
within the specified time limit. The question whether the
right to sue survived against the surviving respondents
alone, was a matter for the appellate court to examine and
decide after hearing the parties with regard to the question
of jointness or otherwise of the decree and the further
question whether there was any possibility of two
contradictory decrees. [605 F-G]
600
2. There is no justification for the argument that the
High Court's decree was a nullity because it was passed
against a dead person. A decree against a dead person is a
nullity because it cannot be allowed to operate against his
legal representatives when they were never brought on the
record to defend the case. It is held a nullity because it
cannot be executed against his legal representatives who had
not had the full opportunity of being heard in respect of
it. If the respondent to an appeal dies and the appellate
court loses sight of that development or ignores it, it will
still be permissible for the court hearing the appeal to
bring his legal representatives on the record on an
application to that effect and to consider any application
for condonation of delay. It is permissible for the
appellate court to remand the case for disposal according to
law to the court in which it was pending at the time of the
death of the deceased party. [606 B-D]
3. While the law treats such decree as a nullity qua
the legal representative of the deceased defendant or
respondent, there is nothing to prevent him from deciding
that he would not treat the decree as a nullity but would
abide by it as it stood or as it may be modified on appeal.
If a legal representative adopts that alternative, it cannot
be said that his option to be governed by the decree is
against the law or any concept of public policy or public
morality. It is a matter entirely at the discretion of the
legal representative to decide whether he would raise the
question that the decree had become a nullity, at the
appropriate time, or to abandon that obviously technical
objection and fight the appeal on the merits. [606 F-H]
4. Nor can it be said that the appellate court is
denuded of its jurisdiction to hear an appeal in which one
of the respondents had died and the right to sue did not
survive against the surviving defendant or defendants alone
merely because no application had been made to bring his
legal representative on the record when no objection to the
effect was raised by any one of them. [607 B]
5. At the same time, an inference as to the abandonment
of such plea of abatement cannot be drawn unless there is
clear, sufficient and satisfactory evidence to prove that
the legal representative of the deceased respondent was
aware of it and abandoned it wilfully. [607 D]
In the instant case, on the death of one of the three
claimants the other two surviving claimants brought the
legal representatives of the deceased on the record. They
knew that the legal representatives of the deceased claimant
had not been brought on the record of the Government appeal
within the time prescribed by law and that, therefore, the
appeal stood abated. Even so, they made no application to
the High Court seeking dismissal of the Government appeal.
This position continued for as long as five years. Two
courses were open to the claimants : (i) to move the High
Court for the dismissal of the Government appeal, or (ii) to
allow that appeal to be heard and decided on merits. The
claimants chose the second course. When the appeals came up
for hearing before the High Court, the appeal was argued on
merits without raising an objection on this point. After the
High Court had pronounced its judgment, the claimants had
asked for a certificate for leave to appeal without asking
for a review of its judgment on the ground that the legal
representatives were not brought on the record of the
Government appeal. So a point of defence which was wilfully
and deliberately abandoned by a party in a civil
601
case at a crucial stage, cannot be allowed to be taken up
later at the will of the party which had abandoned the point
or as a last resort, or as an after thought.
Gaekwar Baroda State Railway v. Hafiz Habib-ul-Haq
& Ors., 65 Indian Appeals 182: Thakore Saheb Khanji
Kashari Khanji v. Gulam Rosul Chandbhai, AIR 1955 Bom.
449; Punjab State v. Sardar Atma Singh, AIR 1963 Pub.
113, State of Rajasthan & Ors. v. Raghuraj Singh, AIR
1968 Raj. 14; held inapplicable.
6. The High Court had rightly taken into consideration
all factors necessary for coming to the right conclusion for
fixing the rate of compensation payable to the climants
namely that a few months before the date of acquisition the
climants themselves purchased the land at Rs. 2/- per square
yard, that they did not make any improvements after its
purehase and that the previous owners had not sold the land
for any compelling reason. [611 B-D]
Desai, J. (concurring) 1. The basic principle
underlying o. XXII rr. 3 and 4 CPC is a facet of natural
justice. It is a fundamental rule of natural justice that a
man has a right to be heard where a decision affecting him
or his interest is to be recorded. As a corollary to the
rule of audi altrem partem it is provided in the Code of
Civil Procedure that where a party to a proceeding dies
pending the proceeding and the cause of action survives, the
legal representatives of the deceased party should be
brought on record, which means. that such legal
representative must be afforded an opportunity of being
heard before any liability is fastened on them. Although the
legal representatives of a deceased plaintiff or defendant
must be substituted on the pain of the action abating, with
utmost diligence, from a multitude someone may escape notice
and the consequent hardship in abatement of action led this
Court to assert the principle that where some legal
representatives were brought on record permitting an
inference that the estate was adequately represented, the
action would not abate though it would be the duty of the
other side to bring on record even at a later date those
legal representatives who were overlooked or missed. [614 E-
H]
2. The principle deducible from decisions of this Court
is that if the deceased had, as a party, a right to put
forth his case, those likely to be affected by the decision,
on death of the deceased, had the same opportunity to put
forth their case and even if from a large number having
identical interest some are not brought on record those who
are brought on record would adequately take care of their
interest and the cause, in the absence of some such, would
not abate. [615 F-G]
Daya Ram & Ors. v. Shyam Sundari, [1965] 1 SCR
231; N. K. Mohammad Sulaiman v. N. C. Mohammad Ismail &
Ors, [1966] 1 SCR 937; Harihar Prasad Singh & Ors. v.
Balmiki Prasad Singh & Ors., [1975] 2 SCR 932; referred
to.
3. Yet another principle is that if the legal
representatives of the deceased party were before the court
in the same action even if in another capacity, failure to
bring them on record in a specific legal position would not
result in abatement of the action. [615 H]
Mahabir Prasad v. Jage Ram & Ors. [1971] 3 SCR 301;
referred to.
602
4. Where a. decree partly satisfies each of the two
parties in a suit, both parties may prefer an appeal
challenging only that part of the decree by which each party
is dissatisfied. But where one of the two parties appeals
and a noticd of appeal is served on the other, the
respondents receiving the notice may prefer cross-objections
under O. XLI, r. 22 CPC. In such a case, though the
respondent may not have appealed from any part of the
decree, he may take cross objections to the decree which he
could have taken by way of appeal. The parameters of cross-
objections are limited to the contention which could
properly be taken in an appeal against a decree or part of a
decree. [617 B-D]
5. When legal representatives of a deceased appellant
are substituted and those very legal representatives as
legal representatives of the same person occupying the
position of respondent in cross-appeal are not substituted,
its outcome would be that they were on record in the
connected proceeding before the same court hearing both the
matters, in one capacity though they were lot described as
such in their capacity, namely, as legal representatives of
the deceased respondent. To ignore this obvious position
would be giving undue importance to form rather than
substance. The anxiety of the court should be whether those
likely to be affected by the decision in the proceeding were
before the court having full opportunity to canvass their
case. Once that is satisfied it can be said that the
provisions contained in rr. 3 and 4 of O.XXII are satisfied
in a given case. To take another view would be to give an
opportunity to the legal representatives of a deceased party
in an appeal having had the fullest opportunity to canvass
their case through the advocate of teir choice appearing in
cross-appeals for them and having canvassed their case and
lost, to turn round and contend that they were not before
the court as legal representatives of the same person in his
other capacity, namely, respondent in the cross-appeal. In
other words, those legal representatives were before the
court all throughout the hearing of the appeal as parties to
the appeal and canvassed their case and were heard through
their advocates and they had the full opportunity to put
forth whatever contentions were open to them in the appeals
and to contest the contentions advanced against them by the
opposite side and yet if the other view is taken that as
they were not formally impleaded as legal representatives of
the deceased respondent in the cross-appeal that appeal has
abated, it would be wholly unjust. It is very difficult to
distinguish on principle the approach of the court in
appeals and cross-objections and in cross-appeals in this
behalf. The cases which have taken the view that in cross-
appeals the position is different from the one in appeal and
cross-objections do not proceed on any discernible legal
principle. Nor can they be explained by any demonstrable
legal principle but in fact they run counter to the
established legal principle. [623 G-H; 624 A-C]
Brij Inder Singh v. Lala Kanshi Ram & Ors. AIR
1917 PC 156; Rangubai Kom Shanker Jagtap v. Sunderabai
Bhratar Sakharam Jedhe & Ors., [1965] 3 SCR 211 at 216-
217; applied.
Sankaranaraina Saralya v. Laxmi Hengsu & Ors., AIR
1931 Mad. 277; State of Rajasthan & Ors, v. Raghuraj
Singh, AIR 1968 Raj. 14; not approved.
In the instant case the legal representatives of the
deceased claimant were brought on the record of the
claimant's appeal. Both the appeals were heard together.
Their counsel argued their case in both appeals. Therefore,
they were
603
before the court all through. The fact that they had not
been described as legal representatives of the deceased in
the Government appeal could not make any difference and
their appeal has not abated.
On the question of compensation no case had been made
out for interfering with the view of the High Court.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2314 of
1969.
From the Judgment and Decree dated 4-2-1969 of the
Andhra Pradesh High Court in Appeal No. 180/64.
A. K. Sen and A. Subba Rao for the Appellant.
T. V. S. N. Chari for the Respondent.
The following Judgments were delivered:
SHINGHAL, J.-This appeal is by a certificate of the
High Court of Andhra Pradesh on the valuation of the subject
matter and is directed against its judgment dated February
4, 1969.
The State Government acquired 2 acres and 79 cents of
the land of the appellants in Kurnool town, for locating a
bus depot of the Andhra Pradesh State Transport Corporation.
It was arable land within the municipal limits of the town,
with two trees and an old compound wall. Its possession was
taken by the State Government on May 25, 1962. The market
value of the land was fixed at Rs. 27,042.53 at the rate of
Rs. 2/- per square yard. The compound wall and the trees
were valued at Rs. 930/- and after allowing a solatium of 15
per cent and interest at 4 per cent per annum, the total
compensation was worked out to Rs. 33,069.12. N. Jayarama
Reddy, Y. Prabhakar Reddy and C. Manikya Reddy, who were the
three owners of the land, accepted that compensation under
protest and applied for a reference under section 18 of the
Land Acquisition Act. After recording evidence and
inspecting the site, the Subordinate Judge held that the
claimants were entitled to payment at the rate of Rs. 12/-
per square yard for the value of land, a solatium of 15 per
cent and interest at 4 per cent. Both parties felt aggrieved
against that order dated July 30, 1963. While appeal No. AS
180 of 1964, hereinafter referred to as the government
appeal, was filed by the Revenue Divisional Officer and the
Land Acquisition Officer, Kurnool, appeal No. AS 296 of
1964, hereinafter referred to as the claimants’ appeal, was
filed by the claimants. There were thus cross-appeals in the
High Court against a common order of the Subordinate Judge.
The memorandum of the government appeal was filed on
December 7, 1963. I do not
604
have the date of the claimants’ appeal on the record, but it
is not disputed that it was filed before April 3, 1964.
While the two appeals were pending in the High Court, Y.
Prabhakar Reddy, one of the three claimants of the
compensation for the acquired land, died on April 3, 1964.
An application was made in the claimants’ appeal to bring
his legal representatives on the record, and the High Court
passed an order on July 14, 1964 (in C.M.P. No. 7284 of
1964) bringing appellants 4 to 9 on record as the legal
representatives of Y. Prabhakar Reddy. It is admitted before
me that was done before the abatement of that appeal. It
seems that no application was made in the government appeal
to bring the legal representatives of the deceased
respondent Y. Prabhakar Reddy on the record of that appeal.
Both the appeals were, however, taken up for hearing
together and were disposed of by a common judgment of the
High Court dated February 4, 1969. The High Court dismissed
the claimants’ appeal, but allowed the government appeal and
reduced the price of the acquired land from Rs. 12/- to Rs.
4/- per square yard “with the usual solatium and interest at
4 per cent as allowed by the lower court.” While the
government felt satisfied with that judgment, the claimants
applied for a certificate which was granted on the ground
that the value of the subject matter of the suit in the
court of first instance was upwards of Rs. 20,000/- and the
value of the subject matter in dispute on appeal to this
Court was also upwards of that amount and the decree
appealed from did not affirm the decision of the lower
court. On the strength of that certificate the appellants
have come up to this Court in appeal.
It has been argued by Mr. Sen on behalf of the
appellants that as Y. Prabhakar Reddy, respondent No. 2 in
the government appeal died on April 3, 1964, and his legal
representatives were not brought on the record within the
period of 90 days provided by law, that appeal abated
thereafter and stood dismissed automatically and could not
be resurrected and heard by the High Court as a cross-appeal
to the claimants’ appeal. The learned counsel has placed
reliance on the decisions of this Court in The State of
Punjab v. Nathu Ram,(1) Rameshwar Prasad and others v. M/s
Shyam Beharilal Jagannath and others,(2) Ramagya Prasad
Gupta and others v. Murli Prasad(3) and Harihar Prasad Singh
and others v. Balmiki Prasad Singh and others.(4) to support
his argument. In particular, he has placed
605
reliance on Nathu Ram’s case(1) to fortify his argument that
the specification of the shares or of the interest of the
deceased Y. Prabhakar Reddy did not affect the nature of the
decree and the capacity of the joint decree holders to
execute the entire decree or to resist the attempt of the
other party to interfere with the joint right decreed in
their favour. In particular, he has relied on that portion
of that decision where it has been stated that as the
subject matter for which the compensation is to be
calculated in such cases is one and the same, there cannot
be different assessments of the amounts of compensation for
the same parcel of land. So, as the appeal before the High
Court was directed against the joint decree and the
appellate court could not take a decision on the basis of
the separate shares of the claimants, it has been argued
that the whole of the government appeal should have been
dismissed because of its abatement against the deceased
respondent.
Now what Order XXII r. 4 (1) C.P.C. provides is that
where one of two or more defendants dies and the right to
sue does not survive against the surviving defendant or
defendants alone, the Court, on an application made in that
behalf, shall cause the legal representative of the deceased
defendant to be made a party and shall proceed with the
suit. Sub-rule (3) provides further that where within the
time limited by law no application is made under sub-rule
(1), “the suit shall abate as against the deceased
defendant.” So as Y. Prabhakar Reddy, respondent No. 2 in
the government appeal, died on April 3, 1964, and an
application was not made to bring his legal representatives
on the record within the specified time limit, the appeal
automatically abated as against the deceased respondent, and
it is not correct to say that the appeal automatically stood
dismissed against the surviving respondents because of that
default. The question whether the “right to sue” survived
against the surviving respondents alone, was a matter for
the appellate court to examine and decide after hearing the
parties, with due regard to the question of jointness or
otherwise of the decree and the further question whether
there was any possibility of two contradictory decrees etc.
As that was not done by the High Court where the government
appeal was pending, there is no justification for the
argument that the appeal automatically stood dismissed after
the expiry of the period of 90 days from the death of
respondent Y. Prabhakar Reddy on April 3, 1964 because of
the abatement of the appeal against him.
But even if it were assumed that the government appeal
deserved to be dismissed as a whole because of its abatement
against the
606
deceased respondent, there is no justification for Mr. Sen’s
further argument that the High Court’s decree dated February
4, 1969, was a nullity merely because it was passed against
a dead person, namely, Y. Prabhakar Reddy. It has to be
appreciated that a decree against a dead person is not
necessarily a nullity for all purposes. It will be
sufficient to say that such a decree has been held to be a
nullity because it cannot be executed against his legal
representative for the simple reason that he did not have a
full opportunity of being heard in respect of it, and the
legal representative can not be condemned unheard. So if a
respondent to an appeal dies, and the appeal abates because
of the failure to bring his legal representative on the
record within the time limited by law, and the appellate
court loses sight of that development or ignores it, it will
still be permissible for the court hearing the appeal to
bring his legal representative on the record on an
application to that effect and to examine any application
that may be made for condonation of the delay. It is also
permissible, and is in fact the common practice, to remand
the case for disposal according to law to the court in which
it was pending at the time of the death of the deceased
party. The law has therefore provided, and accepted, modes
for reopening and hearing the appeal in such cases.
The basic fact remains that a decree against a dead
person is treated as a nullity because it cannot be allowed
to operate against his legal representative when he was
never brought on the record to defend the case. Any other
view would not be possible or permissible for it would
fasten on him a liability for which he did not have any
hearing. So while the law treat such a decree as a nullity
qua the legal representative of the deceased defendant or
respondent, there is nothing to prevent him from deciding
that he will not treat the decree as a nullity, but will
abide by it as it stands, or as it may be modilied
thereafter on appeal. If a legal representative adopts that
alternative or course of action, it cannot possibly be said
that his option to be governed by the decree is against the
law or any concept of public policy or purpose, or the
public morality. It is thus a matter entirely at the
discretion of the legal representative of a deceased
respondent against whom a decree has been passed after his
death to decide whether he will raise the question that the
decree has become a nullity, at appropriate time, namely,
during the corse of the hearing of any appeal may be filed
by the other party, or to abandon that obvious technical
objection and fight the appeal on the merits. He may do so,
either because of his faith in the strength of his case on
the merits, or because of incorrect legal advice, or for the
reason that he may not like to rely on a mere technical
plea, or because in the case of
607
cross-appeals, he may have the impression that bringing the
legal representative of the deceased respondent on record in
an appeal by a coappellant will enure for the benefit of or
be sufficient for purposes of the cross-appeal. An
abandonment of a technical plea of abatement and the
consequential dismissal of the appeal, is therefore a matter
at the discretion of the legal representative of the
deceased respondent and there is no justification for the
argument to the contrary. It is equally futile to argue that
an appellate court is denuded of its jurisdiction to hear an
appeal in which one of the respondents has died and the
right to sue does not survive against the surviving
defendant or defendants alone merely because no application
has been made to bring his legal representative on the
record when no objection to that effect is raised by any
one.
But, as is equally obvious, it will not be fair to draw
an inference as to the abandonment of such a plea of
abatement unless there is clear, sufficient and satisfactory
evidence to prove that the legal representative of the
deceased respondent was aware of it and abandoned it
wilfully. The following facts have been well established in
this respect in the present case.
It will be recalled that the Subordinate Judge made his
order in the reference under section 18 of the Land
Acquisition Act on July 30, 1963, and the memorandum of the
government appeal was filed in the High Court on December 7,
1963. The claimants filed their cross-appeal No. AS 296 of
1964 soon after and, at any rate, before April 3, 1964. It
will also be re-called that Y. Prabhakar Reddy died on April
3, 1964. While he was respondent No. 2 in the government
appeal, he was a co-appellant in the claimants’ appeal. As
has been stated, the claimants brought Y. Prabhakar Reddy’s
legal representatives on the record in their appeal under an
order of the High Court dated July 14, 1964, and they were
arrayed as appellants Nos. 4 to 9. It is admitted that that
appeal therefore never abated and the array of the parties
was full and complete. As has been pointed out, the legal
representatives of Y. Prabhakar Reddy were not brought on
record in the government appeal. It cannot be denied,
however, that they knew of Y. Prabhakar Reddy’s death on
April 3, 1964, for he was their ancestor. They also knew
that they had been brought on record as his legal
representatives in the claimants’ appeal because of the High
Court’s specific order to that effect dated July 14, 1964 in
C.M.P. No. 7282 of 1964 where they were represented by
counsel. They thus knew that Y. Prabhakar Reddy’s legal
representatives were not brought on record in the government
appeal, and that it stood abated against them because of the
expiry of the time limited by law
608
in that respect. Even so, they did not make an application
to the High Court for the dismissal of the appeal on the
ground that it could not survive against the surviving
respondents because of that basie defect, in the facts and
circumstances of that case. That in fact continued to be the
position for a long period of some five years. It is not
disputed that the appeals came up for hearing in the High
Court on or about February 4, 1969, but, even then, no-
objection was taken to the hearing of the government appeal
in spite of the fatal defect in its consitution. On the
other hand, when the two appeals were taken up for hearing,
the High Court heard, without any objection, not only the
counsel for the appellants in the government appeal, but
also C. Padmanabha Reddy, who was counsel for the
respondents in that appeal and for the reconstituted array
of appellants in the claimants’ appeal. The legal
representatives of Y. Prabhakar Reddy and their counsel were
thus aware of the fact that the government appeal had abated
against respondent Y. Prabhakar Reddy, and it will not be
unfair to assume that they, or, at any rate, their counsel
knew that it was open for them to contend that the appeal
was liable to dismissal for that reason. Two courses of
action were therefore open to them: (i) to move the High
Court for the dismissal of the government appeal, or (ii) to
allow that appeal to be heard and decided on the merits and
to abide by any decree which the High Court might pass in
the two appeals. The legal representatives and their counsel
did not choose to adopt the first course of action, and it
will be fair and reasonable to hold that they wilfully chose
the second course of action. That was why their counsel C.
Padmanabha Reddy, who was counsel for all the respondents in
the government appeal, and for all the appellants in the
claimants’ appeal, argued both the appeals on the merits.
The High Court heard and decid the cross-appeals by its
impugned judgment dated February 4, 1969, and it will be a
proper conclusion for me to reach that the legal
representatives of Y. Prabhakar Reddy wilfully abandoned any
plea that might have been available to them on the basis of
the abatement of the government appeal against the deceased
respondent.
It was only after the judgment of the High Court went
against them, that the legal representatives of Y. Prabhakar
Reddy decided to take up the question of abatement, for the
first time, in the petition which they and the other
claimants’ filed under section 104-110 and order 45 rules 2
and 3 C.P.C. It is significant that they did not even then
ask the High Court to review its judgment and grant them
relief on the ground that Y. Prabhakar Reddy had died and
the decree against him was a nullity in so far as they were
concerned. The High Court was
609
simply asked to allow the application for the certification
of the appeal on the ground that the value of the subject
matter was upwards of Rs. 20,000/- and it made an order to
that effect.
In all these facts and circumstances, I have no doubt
that any plea that may have been available to the legal
representatives of the deceased Y. Prabhakar Reddy in the
government appeal because of its abatement, was wilfully
abandoned by them. Any other view of the matter will be
unfair to the present respondents, because if any such
objection had been taken in the High Court, they would have
made an application for the setting aside of the abatement
and condoning the delay, for whatever it was worth. It has
to be appreciated that a point of defence which has been
wilfully or deliberately abandoned by a party in a civil
case, at a crucial stage when it was most relevant or
material, cannot be allowed to be taken up later, at the
sweet will of the party which had abandoned the point, or as
a last resort, or as an after thought. In fact in a case
where a point has been wilfully abandoned by a party, even
if, in a given case, such a conclusion is arrived at on the
basis of his conduct, it will not be permissible to allow
that party to revoke the abandonment if that will be
disadvantageous to the other party.
Mr. Sen has however made a reference to Gaekwar Baroda
State Railway v. Hafiz Habib-ul-haq and others(1) and
Thakore Saheb Khanji Kashari Khanji v. Gulam Rasul Chandbhai
(2) for the purpose of showing that the government appeal
was not at all maintainable in the High Court because of its
abatement against respondent Y. Prabhakar Reddy as that was
a matter relating to the jurisdiction of the High Court
which could not have been abandoned. The provisions of
section 86 C.P.C. came up for consideration in both those
cases and it was held that as the section was based upon
public policy or purpose, it was not open to a ruling chief
to waive its provisions. Those were therefore different
observations which have no bearing on the present
controversy for, as has been stated, the decision of the
legal representative of a deceased respondent to be bound by
a decree in spite of its abatement does not involve any
question of public policy.
Mr. Sen’s reference to Maharana Shri Davlatinghji
Thjakore Saheb of Limit v. Khachar Hamir Mon,(3) Town
Municipal Council, Athani
610
v. Presiding Officer, Labour Court, Hubli and others, (1)
Simpson and another v. Crowle and others(2) Chief Justice of
Andhra Pradesh and another v. L. V. A. Dikshitula and
others(3) and P. Dasa Muni Reddy v. P. Appa Rao(4) is
equally futile because they were cases of inherent lack of
jurisdiction in the court concerned or raised the question
of the bar of limitation.
Mr. Sen has placed reliance on Punjab State v. Sardar
Atma Singh(5) and State of Rajasthan and others v. Raghuraj
Singh(6) to show that where an application is not made to
bring the legal representative of the deceased respondent on
the record of a cross-appeal, that appeal will abate, and it
will not be permissible for the appellant to claim the
benefit of the fact that the legal representative of the
deceased respondent had been brought on the record in the
cross-appeal filed by him. I have gone through the cases,
but they are clearly distinguishable. The respondent in both
cases died during the pendency of the firs appeal, and an
objection as to abatement was taken during the course of the
hearing, so that there was no question of abandoning the
objection in either of these cases and it was permissible to
apply to the court for the usual consequences which follow
for non-compliance with the provisions of order XXII rules 3
and 4 C.P.C. Those decisions cannot therefore be of any help
in a case like this.
It would thus follow that as the plea of abatement of
the government appeal against respondent Y. Prabhakar Reddy
and its dismissals a whole for that reason, was wilfully
abandoned by the present respondents in the High Court, it
will not be fair and reasonable to allow them to take it up
the facts and circumstances of this case merely because the
decision of the High Court has gone against them.
That leaves for consideration the question whether the
finding of fact of the High Court that the present
appellants were entitled to compensation at Rs. 4/- per
square yard suffers from any such error as to require
interference by this court. Mr. Sen has argued that the High
Court went wrong in interfering with the finding of the
Subordinate Judge and in excluding the sale deeds Exs. A 1
and A 2 altogether from consideration when they were
important and were by themselves sufficient to uphold the
finding of the Subordinate Judge that the market value of
the land was Rs. 12/- per square yard.
611
I find from the impugned judgment that the High Court
first took into consideration all those factors which were
in favour of the claimants, namely, the fact that the land
was situated within the municipal limits of Kurnool town, it
was within easy reach of the government hospitals, the
railway station, the Medical College and the State Bank
etc., it was suitable as a building site etc. The High Court
also took due notice of the fact that although Kurnool was
not made the capital of Andhra Pradesh, it was a growing
town and had an importance of its own. It then examined
those facts which persuaded it to reduce the market value.
In doing so, it took note of the fact that the land under
acquisition had been bought by the Claimants themselves for
Rs. 26,000/- on October 30, 1961, just eight months before
the issue of the notification for its acquisition. That rate
worked out to Rs. 2/- per square yard. Then the High Court
took into consideration the other facts that the claimants
did not effect any improvement in the land after its
purchase, it was not their case that the previous owner had
sold it for any compelling reason, the claimants were not
even responsible for preparing the lay out plan for the
locality (which had been accepted by the municipality even
before they had purchased the land) and that they merely
obtained the sanction of the Town Planning department to the
lay out which had already been sanctioned. The High Court
carefully examined the various sale agreements Exs. A3, A5,
A7, A10, A12 and A14, and rejected them on the ground that
they did not appear to be genuine and had mostly been
executed on the same date. That left the two registered sale
deeds Exs. A1 and A2 for consideration on which Mr. Sen has
placed considerable reliance. The High Court noticed that
they were for the sale of very small portions of land,
namely, 3 cents and 5 cents, and did not think it proper to
make them the basis for determining the value of a far
larger piece of land. It cannot therefore be said that the
High Court ignored or misread any important piece for
evidence in arriving at its finding. As has been stated, the
appellants bought the land for Rs. 26,000/-, which worked
out to Rs. 2/- per square yard, and the High Court doubled
that rate, and raised it to Rs. 4/- per square yard even
though the acquisition took place within a matter of the
next eight months and the appellants did nothing to improve
its value. To say the least, such a finding cannot be said
to have been vitiated for any reason whatsoever so as to
require reconsideration here.
As I find no merit in the appeal, it is hereby
dismissed with no order as to costs.
DESAI, J.-I have carefully gone through the judgment
prepared by my learned brother Shinghal, J. and I am in full
agreement with him that the appeal be dismissed. This
separate opinion becomes necessary be-
612
cause in my opinion in the facts and circumstances of this
case the Government appeal had not abated at all.
All the relevant facts have been extensively set out by
my learned brother and it is not necessary to repeat them
here. Even the nomenclature in respect of the two appeals as
given by him may be adopted for facility of appreciating the
point under discussion
After the award by the Subordinate Judge, two appeals
came to be preferred, one by the Revenue Divisional officer
styled as ‘Government appeal’, and another by the claimants
styled as ‘claimants appeal’. Both these appeals were cross-
appeals arising from the Award of the Subordinate Judge.
During the pendency of the appeals in the High Court, Y.
Prabhakar Reddy, one of the three claimants, being an
appellant in the claimants’ appeal and respondent in
Government appeal, died on April 3, 1964 and upon an
application made to the Court in the claimants’ appeal his
legal representatives appellants 4-9 were brought on record.
Admittedly, the legal representatives of deceased Y.
Prabhakar Reddy one of the respondents in Government appeal
were not brought on record till both the appeals were
disposed of by a common judgment rendered on February
4,1969. The High Court by its judgment dismissed the
claimants’ appeal and partly allowed the Government appeal
reducing the compensation payable in respect of the acquired
land from Rs. 12/- to Rs. 4/- per sq. yd. Original two
claimants and heirs of deceased claimant Y. Prabhakar Reddy
preferred the present appeal to this Court by certificate
granted by the High Court under Article 133 of the
Constitution.
Mr. A. K. Sen contended that as heirs of one of the
claimants Y. Prabhakar Reddy, respondent in Government
appeal, were not brought on record within the prescribed
period of limitation after his death pending the appeal, not
only the Government appeal abated against Y. Prabhakar Reddy
but in view of the decision of this Court in State of Punjab
v. Nathu Ram,(1) the appeal abated as a whole and,
therefore, the judgment of the High Court partly allowing
the Government appeal and reducing the compensation from Rs.
12/- to Rs. 4/- per sq. yd. of the acquired land must be set
aside on this short ground alone.
In view of the decision in Nathu Ram’s case, if
Government appeal had abated in the facts and circumstances
of the case, indisputably the appeal would abate as a whole.
The substance of the matter is whether in the facts and
circumstances of this case and keeping in view the relevant
provisions of law the Government appeal had at all abated.
There were cross appeals arising from the same Award
before the High Court. The record does not show that any
order was made for
613
consolidating these appeals as is usually done when both the
parties to a decree prefer appeals and which are styled as
cross-appeals. Both the parties to the original proceeding
adopt rival positions in cross appeals. The claimants in
their appeal moved the High Court to enhance the
compensation from Rs. 12/- per sq. yd. awarded by the
Subordinate Judge to a higher amount as claimed by them. The
Government in its appeal against the same Award moved the
High Court to reduce the compensation from Rs. 12/- to Rs.
2/- per sq. yd. The contest between the parties would be,
what in the circumstances of the case should be adequate
compensation being the market value of the land acquired by
the Government on the relevant date (see Nathuram’s case).
Undoubtedly, one of the original claimants Y. Prabhakar
Reddy being one of the appellants in the claimants’ appeal
died and specifically his legal representatives were brought
on record within the prescribed period of limitation and
that was done much prior to the date of hearing of the
appeals by the High Court. As is notorious, the
inadvertence, if not down right indifference, of those
incharge of the Government appeal is demonstrably
established because the counsel incharge of the Government
appeal must have received the notice moved on behalf of the
appellants-claimants seeking to bring the legal
representatives of deceased Y. Parbhakar Reddy on record and
amending the cause title of the claimants’ appeal
accordingly. This was sufficient notice to the counsel
incharge of the Government appeal that the same gentleman
was one of the respondents in Government appeal and his
death having been notified, as a necessary corollary his
heirs will have to be brought on record in Government
appeal. Nothing more was required to be done by the counsel
incharge of Government appeal except to bodily adopt those
who applied to come on record in place of deceased Y.
Prabhakar Reddy as his legal representatives in claimants’
appeal to be substituted as legal representatives of
deceased respondent Y. Prabhakar Reddy in Government appeal.
This was not done. It may also be mentioned that both the
appeals were heard together and were disposed of by a common
judgment. As has been pointed out by Shinghal, J., no
contention was taken on behalf of the respondents in
Government appeal that on account of the failure of
Government to bring the heirs of deceased Y. Prabhakar Reddy
on record within the time prescribed, the appeal has abated
but on the contrary Government appeal was allowed to be
proceeded in the presence of all parties including legal
representatives of Y. Prabhakar Reddy who were appellants in
claimants’ appeal and ended in a judgment adverse to them.
What is the consequence of failure to raise this contention
has been examined by my learned brother in detail and I am
in agreement with his conclusion.
614
Now, Order 22, Rule 4 read with Order 22, Rule 11 of
the Code of Civil Procedure require that the appellant in
Government appeal should have brought the legal
representatives of respondent deceased Y. Prabhakar Reddy,
on record. There is no controversy that rule 4 of Order 22
read with rule 11 would be attracted in this case, and as
admittedly the legal representatives of deceased Y.
Prabhakar Reddy, the respondent in Government appeal, were
not brought on record till the appeal was disposed of,
ordinarily the appeal would abate.
The substantial question is: where cross appeals are
preferred against a common decree or an Award and in the
cross appeals the parties are arrayed in rival positions and
where one party as appellant dies and his legal
representatives are brought on record though those very
legal representatives are not substituted in his place which
he adopted as respondent in the cross appeal, would the
cross appeal abate ?
This question may be examined first on principle. The
basic principle underlying order 22, rules 3 and 4 which on
account of the provision contained in order 22, rule 11
apply to appeals, is indisputably a facet of natural justice
or a limb of audi altrem partem rule. It is a fundamental
rule of natural justice that a man has a right to be heard-
audi altrem partem-where a decision affecting him or his
interest is to be recorded. It hurts one’s sense of justice,
fairness and reason that a decision one way or the other is
recorded affecting a party without giving that party an
opportunity of being heard. This rule embraces the whole
notion of fair procedure and the rule requiring a hearing is
of almost universal validity. It has made a serious inroad
in administrative decisions. It should enjoy a top place in
a judicial proceeding.
The first limb of this rule audi altrem partem is that
a person must be given an opportunity of being heard before
a decision one way or the other affecting him is recorded.
As a corollary to this rule it is provided in the Code of
Civil Procedure that where a party to the proceeding dies
pending the proceeding and the cause of action survives, the
legal representatives of the deceased party should be
brought on record which only means that such legal
representatives must be afforded an opportunity of being
heard before any liability is fastened upon them. It may be
that the legal representatives in a given situation may be
personally liable or the estate of the deceased in their
hands would be liable and in either case a decision one way
or the other, adverse or favourable to them, cannot be
recorded unless they are given an opportunity of being
heard. Order 22, rules 3 and 4 codify these procedural
safeguards translating into statutory requirement one of the
principles of natural justice.
615
If this is the discernible principle underlying order
22, rules 3 and 4 it has been demonstrably established by
interpretation put on these two rules. Original view was
that all legal representatives of a deceased plaintiff or
defendant must be substituted on the pain of the action
abating. With utmost diligence from a multitude some one may
escape notice and the consequent hardship in abatement of
action led this Court to assert the principle that where
some legal representatives are brought on record permitting
an inference that the estate is adequately represented, the
action would not abate though it would be the duty of the
other side to bring those legal representatives on record
who are overlooked or missed even at a later date. When the
aforementioned two provisions speak of legal representatives
it only means that if after diligent and bona fide enquiry
the party liable to bring the legal representatives on
record ascertains who are the legal representatives of a
deceased party and brings them on record within the time
limited by law, there is no abatement of the suit or appeal
on the ground that some other legal representatives have not
been brought on record, because the impleaded legal
representatives sufficiently represent the estate of the
deceased and the decision would bind not only those
impleaded but the entire estate including the interest of
those not brought on record. This view has been consistently
adopted by this Court in Daya Ram & Ors. v. Shyam Sundari
(1) N. K. Mohammad Sulaiman v. N. C. Mohammad Ismail &
Ors.;(2) and Harihar Prasad Singh & Ors. v. Balmiki Prasad
Singh & Ors.(3) The principle deducible from these decisions
is that not only the interest of the deceased was adequately
taken care of by those who were on record but they had the
opportunity to put forth their case within permissible
limits. Neither the case of the deceased nor of his
successors in-interest has gone by default. In other words,
the principle is that if thd deceased had as a party a right
to put forth his case, those likely to be affected by the
decision on death of the deceased had the same opportunity
to put forth their case and even if from a large number
having identical interest some are not brought on record
those who are brought on record would adequately take care
of their interest and the cause in the absence of some such
would not abate. In legal parlance this procedure affords an
opportunity of being heard in all its ramification before a
decision on the pending list is taken.
Another principle in this behalf which has found
recognition of the Courts is that if the legal
representatives of the deceased party are before the Court
in the same action even if in another capacity, failure to
616
bring them on record in a specific legal position would not
result in abatement of the action. In Mahabir Prasad v. Jage
Ram & Ors.,(1) this Court was called upon to consider
whether where a legal representative of a deceased party is
on record in another capacity, failure to implead him as
legal representative of the deceased party would result in
abatement of the action ? In that case Mahabir Prasad, his
wife Saroj Devi and his mother Gunwanti Devi filed a suit
against Jaga Ram and two others for recovering rent then due
in the aggregate amount of Rs. 61,750/-. The suit ended in a
decree. The execution of the decree was resisted by the
defendants on the plea inter alia that the decree was
inexecutable because of the provisions of Delhi Land Reforms
Act, 1954. This contention found favour with the executing
court and the application for execution was dismissed.
Mahabir Prasad, one of the decree holders alone appealed
against that order and impleaded Gunwati Devi and Saroj Devi
as party respondents along with the original judgment-
debtors. Saroj Devi died in November 1962 and Mahabir Prasad
applied that the name of Saroj Devi be struck of from the
array of respondents. The High Court made an order granting
the application “subject to all just exceptions”.
Subsequently the High Court dismissed the appeal holding
that because the heirs and legal representatives of Saroj
Devi were not brought on record within the period of
limitation, the appeal abated in its entirety. This Court,
while setting aside the order made by the High Court holding
that the appeal abated, observed as under:
“Even on the alternative ground that Mahabir
Prasad being one of the heirs of Saroj Devi there can
be no abatement merely because no formal application
for showing Mahabir Prasad as an heir and legal
representative of Saroj Devi was made. Where in a
proceeding a party dies and one of the legal
representatives is already on the record in another
capacity, it is only necessary that he should be
described by an appropriate application made in that
behalf that he is also on record, as an heir and legal
representative. Even if there are other heirs and legal
representatives and no application for impleading them
is made within the period of limitation prescribed by
the Limitation Act the proceeding will not abate”.
The principle deducible from this decision of their
Court is that where one of the legal representatives of the
deceased party is before the Court at the time when the
proceeding is heard but in another capacity, it is
immaterial whether he is described as such or not and even
if there are other legal representatives, the cause will not
abate.
617
Now, when a proceeding such as a suit ends in a decree
it may be that decree may partly satisfy both the parties
with the result that with regard to that part of decree by
which each party is dissatisfied that party may prefer an
appeal challenging only that part of the decree by which it
is dissatisfied. When one such party to the decree appeals
and a notice of the appeal is served on the other side the
respondent receiving the notice may prefer cross-objections
under Order 41, Rule 22, but what is important to note is
that such respondent though he may not have appealed from
any part of the decree, may take any cross-objections to the
decree which he could have taken by way of appeal. In other
words, the respondent could have as well filed an appeal
against that part of the decree by which he is dissatisfied
but if he has not filed an appeal he can as well put forth
cross-objections as contemplated by Order 41, rule 22.
Parameters of cross-objections by the language of Order 41,
rule 22, are limited to the contentions which could
appropriately be taken in an appeal against a decree or a
part of a decree. For all practical purposes cross-
objections and cross-appeals have the same purpose to
achieve and cover the same ground. Would they stand on a
different footing in respect of death of a party either in
cross-appeals or in cross-objections ?
There is a conflict of judicial opinion on the effect
of substitution of legal representatives of a deceased party
in cross-objections and in cross appeals. Mulla has noted
this cleavage of opinion in his Code of Civil Procedure,
13th Edition, Volume II, P. 1237, as under:
“Where both the parties to a suit file independent
appeals against the decree passed therein, and one of
them dies pending the appeal, the substitution of his
legal representatives in one appeal does not enure for
the benefit of the other appeal which consequently
abates. But where one party to a suit prefers an appeal
against the decree passed therein and the other files a
memorandum of cross-objections under O. 41, r. 22, What
is the effect of the legal representatives of a
deceased party to the proceedings being substituted in
the memorandum of cross-objections, and not in the
appeal ? There is a conflict of judicial opinion on
this question. Where the respondent died and his legal
representative was brought on record on his own
application in the cross-objections and the appellant
had not applied to bring him on record, it was held
that the substitution of the legal representative in
the cross-objection enured for the benefit of the
appeal also as both the appeal and the cross appeal
(sic) were part of the same proceedings. And where
618
the appellant died, and his legal representatives were
brought on record in the cross-objection but not in the
appeal, it was held that the substitution in the cross-
appeal (sic) did not enure for the benefit of the
appeal and that the latter abated”.
Decisions on which the commentary is based may now be
examined in depth to sort out principle, if any, to which
the cleavage of opinion is referable.
In a very early decision in Brij Indar Singh v. Lala
Kanshi Ram & Ors.,(1) the Judicial Committee held that
substitution of a deceased party’s legal representatives in
an interlocutory appeal arising from an order made in a suit
would enure for the benefit of the suit and no separate
application for substitution in the suit need be made. It
was in terms held that the introduction of a plaintiff or a
defendant at one stage of the suit is an introduction for
all stages, and that though it was done in the course of an
interlocutory application as to the production of books the
same would enure for the benefit of the suit. While
affirming the ratio of this decision this Court in Rangubai
Kom Shankar Jagtap v. Sunderabai Bharatar Sakharam Jedhe &
Ors.,(2) analysed the principle underlying Order 22, rules
3, 4 and 11 as under:
“Let us now consider the question on principle. A
combined reading of Order XXII, rr. 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 rr. 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 r. 4, read with r. 11, of
O. XXII of the Code of Civil Procedure. But there is
another principle recognised 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
619
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 brought 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.
But the same legal position cannot be invoked in
the reverse or converse situation. A suit is not a
continuation of an appeal. An order made in a suit
subsequent to the filing of an appeal at an earlier
stage will move forward with the subsequent stages of
the suit or appeals taken therefrom; but it cannot be
projected backwards into the appeal that has already
been filed. It cannot possibly become an order in the
appeal. Therefore, the order bringing the legal
representatives of the 7th respondent on record in the
final decree proceedings cannot enure for the benefit
of the appeal filed against the preliminary decree. We,
therefore, hold that the appeal abated so far as the
7th respondent was concerned.”
620
In Sankaranaraina Saralaya v. Laxmi Hengsu & Ors.,(1)
two independent appeals were filed against the decree of the
trial court in the suit, one appeal being by the plaintiff
and the other appeal by defendant 2. In the appeal filed by
defendant 2 the legal representatives of the respondent,
viz., the plaintiff not having been brought on record within
the time prescribed by law, the appeal abated, and when that
abatement was sought to be set aside, the Court found that
there was no ground for allowing the application. It was
then contended that because the legal representatives of the
appellant in other appeal (who was undoubtedly the plaintiff
in the suit) have been added within the time allowed, it
should be taken that those legal representatives have also
been added in place of the deceased respondent by defendant
2. Negativing this contention a learned single Judge of the
Madras High Court held that there is no interdependence
between the two appeals and the analogy of an appeal and a
memorandum of cross-objection in the same appeal does not
hold good in case of two independent appeals where the Court
has to deal with two separate and independent appeals though
arising from the same suit and the parties adopt rival
positions. The Court distinguished the decision in Brij
Indar Singh’s case (supra) by posing a question to itself:
‘Can it be said in the present case that what was done in
one appeal could enure for the benefit of another appeal
unless the latter appeal can be deemed to be a continuation
or a further stage of the appeal in which the legal
representatives were brought on record’ and answered it in
the negative observing that it is not possible to extend the
principle laid down by Judicial Committee in Brij Indar
Singh’s case (supra)
In Dasondha Singh v. Shadi Ram Sardha Ram & Ors.(2)
there were cross appeals arising from the same decree before
the Court and the plaintiff Shadi Ram was an appellant in
the appeal preferred by him and when he died his legal
representatives were impleaded within the prescribed time.
In the appeal preferred by the defendant the application for
impleading Shadi Ram’s legal representatives which was made
beyond the prescribed period of limitation and the Court
having declined to condone the delay, the appeal abated. It
was contended that as the legal representatives of Shadi Ram
were impleaded in his appeal and as both these appeals arose
out of the same judgment, the legal representatives of Shadi
Ram being before the Court it is a mere formality to make
necessary endorsement on record and, therefore, the appeal
preferred by defendant 2 would not abate. The Court
negatived the argument relying upon a Division Bench
decision in Punjab State v. Atma Singh.(2).
621
In State of Rajasthan & Ors. v. Raghuraj Singh,(1) two
cross-appeals came to be filed against the decision of the
trial court to the Rajasthan High Court. During the pendency
of these appeals the plaintiff who was appellant in his
appeal died and his legal representatives were impleaded
within time. It appears that the legal representatives of
the plaintiff who was respondent in defendant’s appeal were
not substituted and a preliminary objection was taken that
the defendant’s appeal abates or has abated. The defendant
countered this submission by saying that as plaintiff’s
legal representatives were before the Court as brought on
record and substituted in the plaintiff’s appeal, it would
be permitting a technicality to hold that the defendant’s
appeal has abated. The Court examined two separate limbs of
the submission: (1) what is the effect of substitution of
deceased party’s legal representatives in cross-objections
though no such substitution was made in the main appeal; and
(2) would the effect be different if instead of cross-
objections there were cross-appeals. A Division Bench of the
Rajasthan High Court held that cross-objections being part
of the same proceedings and form part of the same record,
substitution of legal representatives in the cross-
objections would enure for the benefit of the main appeal.
But in the case of cross-appeals, after referring to
Sankaranaraina Saralaya’s case, (supra) the High Court held
that substitution of legal representatives of a deceased
party in one appeal cannot enure for the benefit of the
cross-appeal and, therefore, defendant’s appeal was held to
have abated.
An analysis of the aforementioned decisions in search
of a common thread or a deducible principle has not proved
helpful.
The following conclusions emerge from these decisions:
(1) If all legal representatives are not impleaded
after diligent search and some are brought on record and if
the Court is satisfied that the estate is adequately
represented meaning thereby that the interests of the
deceased party are properly represented before the Court, an
action would not abate.
(2) If the legal representative is on record in a
different capacity, the failure to describe him also in his
other capacity as legal representative of the deceased party
would not abate the proceeding.
(3) If an appeal and cross-objections in the appeal
arising from a decree are before the appellate court and the
respondent dies, substitution of his legal representatives
in the cross-objections being part of the same record, would
enure for the benefit of the appeal and the failure of the
appellant to implead the legal representatives of the
622
deceased respondent would not have the effect of abating the
appeal but not vice versa.
(4) A substitution of legal representatives of the
deceased party in an appeal or revision even against an
interlocutory order would enure for the subsequent stages of
the suit on the footing that appeal is a continuation of a
suit and introduction of a party at one stage of a suit
would enure for all subsequent stages of the suit.
(5) In cross-appeals arising from the same decree where
parties to a suit adopt rival positions, on the death of a
party if his legal representatives are impleaded in one
appeal it will not enure for the benefit of cross-appeal and
the same would abate.
Is it possible to ratiocinate these decisions ?
Apparently the task is difficult. Now, if the object and
purpose behind enacting Order 22, rules 3 and 4 are kept in
forefront conclusions Nos. 1 to 4 would more or less fall in
line with the object and purpose, namely, no decision can be
recorded in a judicial proceeding concerning the interests
of a party to a proceeding without giving such party or his
legal representatives an opportunity of putting forth
its/their case. To translate this principle into action
denuding it of its ultra technical or harsh application, the
Courts held that if some legal representatives are before
the Court, or they are before the Court in another, capacity
or are brought on record at some stage of the suit, the
action will not abate even if there is no strict compliance
with the requirements of rules 3 and 4. The distinction in
the process drawn between the substitution of legal
representatives in cross-objections and cross-appeal defies
ratiocination. Cross-appeal and cross-objections provide two
different remedies for the same purpose and that is why
under Order 41, rule 22, cross-objections can be preferred
in respect of such points on which that party could have
preferred an appeal. If such be the position of cross-
objections and cross-appeal a differentiation in the matter
of their treatment under rules 3 and 4 cannot be justified
merely on the ground that in case of cross-objections they
form part of the same record while cross-appeals are two
independent proceedings.
Now, if the discernible principle underlying rules 3
and 4 of Order 22 is that the legal representatives of the
deceased likely to be affected one way or the other by the
decision in appeal must be before the Court and must be
heard before a decision affecting their interests is
recorded it would stand fully vindicated when in cross-
appeals a party occupying the position of an appellant in
one appeal and respondent in the other appeal dies and his
legal representatives are brought on record in the appeal in
which he is the appellant and not in the other appeal
wherein he is a respondent because the subject-matter of
both the
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appeals being the decree under attack, they have an
opportunity to support the decree in their favour and
question the correctness of the decree adverse to them. Even
if they were brought on record as legal representatives of
the deceased in his capacity as respondent in the cross-
appeal, they could not have further advanced their case nor
could they have done anything more than what they would do
in their capacity as legal representatives of the deceased
appellant unless they were precluded from contending that
they being not on record cannot support or controvert the
decree. They have thus the fullest opportunity of putting
forth their grievance against and in support of the decree.
Their position was not the least likely to be affected one
way or the other even if they were not formally impleaded as
legal representatives of the deceased in his capacity as
respondent. To say that cross-appeals are independent of
each other is to overlook the obvious position which parties
adopt in cross-appeals. Interdependence of cross-appeals is
the same as interdependence of appeal and cross-objections
because as in the case of appeal and cross-objections a
decision With regard to appeal would directly impinge upon
the decision in cross-objections and vice versa. Indubitably
the decision in one of the cross-appeals would directly
impinge upon the decision in the other because both
ultimately arise from the same decree. This is really the
interdependence of cross-appeals and it is impossible to
distinguish cross-appeals from appeal and cross-objections.
Unfortunately this interdependence was overlooked by the
Madras High Court when the scope of cross-appeals arising
from the same decree and approach is cross-objections in
respect of the same decree were not examined in depth in
Sankaranaraina Saralaya’s case (supra). This approach is
merely an extension of the principle well recognised by
Courts that if legal representatives are before the Court in
the given proceeding in one capacity it is immaterial and
irrelevant if they are not formally impleaded as legal
representatives of the deceased party in another capacity.
Shorn of embellishment, when legal representatives of a
deceased appellant are substituted and those very legal
representatives as of the same person occupying the position
of respondent in cross-appeal are not substituted the
indisputable outcome would be that they were on record in
the connected proceeding before the same Court hearing both
the matters, in one capacity though they were not described
as such in their other capacity, namely, as legal
representatives of the deceased respondent. To ignore this
obvious position would be giving undue importance to form
rather than substance. The anxiety of the Court should be
whether those likely to be affected by the decision in the
proceeding were before the Court having full opportunity to
canvass their case. Once that is satisfied it can be
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safely said that the provisions contained in rules 3 and 4
of Order 22 are satisfied in a given case. To take another
view would be to give an opportunity to the legal
representatives of a deceased party in an appeal having had
the fullest opportunity to canvass their case through the
advocate of their choice appearing in cross-appeals for them
and having canvassed their case and lost, to turn round and
contend that they were not before the Court as legal
representatives of the same person in his other capacity,
namely, respondent in the cross appeal. In other words,
those legal representatives were before the Court all
throughout the hearing of the appeal as parties to the
appeal and canvassed their case and were heard through their
advocate and they had the full opportunity to put forth
whatever contentions were open to them in the appeals and to
contest the contentions advanced against them by the
opposite side and yet if the other view is taken that as
they were not formally impleaded as legal representatives of
the deceased respondent in the cross-appeal that appeal has
abated, it would be wholly unjust. It is very difficult to
distinguish on principle the approach of the Court in
appeals and cross-objections and in cross appeals in this
behalf. No principle of law can distinguish this
devigational approach. The cases which have taken the view
that in cross-appeals the position is different than the one
in appeal and cross objections do not proceed on any
discernible legal principle. Nor can they be explained by
any demonstrable legal principle but in fact they run
counter to the established legal principle.
In the present case the legal representatives of
deceased Y. Prabrakar Reddy were brought on record in the
claimants’ appeal. Through their advocate they were
contending before the High Court that not only the
compensation should be enhanced but in reply to the
submissions of the counsel for the State in their appeal
they contended that no case was made out for reducing the
compensation. Both the appeals were heard together and not
one after the other. Therefore, the legal representatives of
the deceased Y. Prakhakar Reddy were all throughout before
the Court, of course in one capacity, viz., as legal
representatives of deceased appellant, but not so described
as legal representatives of the deceased respondent. That
cannot make any difference. Therefore, the appeal has not
abated.
On merits, I agree with my learned brother Shinghal, J.
that the compensation as awarded by the High Court
represents the market value of the land on the date of the
Notification under s. 4 of the Land Acquisition Act and no
case is made out for interfering with the same. Accordingly,
I agree with the final order that the appeal be dismissed
with no order as to costs.
P.B.R. Appeal dismissed.
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