Two Conflicting Decrees Not Permissible In Same Appeal Against Deceased & Surviving Respondents, Appeal Liable To Be Abated As A Whole: J&K High Court

Spelling out the reasons for the same Justice M A Chowdhary observed,

“..The basic reason being that in the absence of the legal representatives of deceased respondent, the appellate Court cannot determine between appellant and the legal representatives anything which may affect the rights of the legal representatives”.

These observations came while hearing an appeal filed by Appellant-Union of India through the medium of which it challenged an Award passed by the Arbitrator (District Judge, Udhampur) whereby the Arbitrator had assessed the compensation of the acquired land @ Rs.30,000/- per kanal along with interest @ 9% per annum from the date of Reference till final realization of the awarded sum.

Background:

The case involved the Government of Jammu and Kashmir acquiring land measuring 543 kanals and 03 marlas in District Udhampur under the J&K Requisition and Acquisition of Immovable Property Act, 1968 (RAIP Act). The Deputy Commissioner determined the compensation for the acquired land at varying rates based on the land type.

Dissatisfied with the compensation rates, landowners representing 87 kanals and 16 marlas of the acquired land sought arbitration. The State Government appointed the District Judge of Udhampur as the arbitrator. The arbitrator awarded compensation of Rs. 30,000 per kanal along with interest at 9% per annum from the date of reference.

Contentions Raised:

Aggrieved of the award the Union of India challenged it on two grounds. The Union contended that the compensation awarded by the arbitrator was excessive and disregarded the land's topography, location, and distance from the National Highway. The Union further argued that interest on the compensation amount was not admissible under the RAIP Act, citing judgments from the Supreme Court.

However, during the appeal proceedings, several respondents named in the case passed away. The Union failed to bring their legal representatives on record within the prescribed time limit.

The respondents, represented by their counsel, argued that the appeal should be dismissed as a whole due to abatement. They emphasized that a successful appeal against the surviving respondents would create conflicting decrees in the same case, as the award would be final for the deceased parties without legal representation.

Observations Of The Court:

At the outset, Justice Chowdhary acknowledged the Union's decision to forgo challenging the compensation rate in light of a similar case settled by the Supreme Court. However, the court focused on the abatement issue due to the absence of legal representatives for the deceased respondents.

Extensively examining the relevant legal provisions and precedents the court noted the provisions of Order XXII of the Code of Civil Procedure (CPC), which deal with the consequences of death during legal proceedings. While Rule 1 states that a suit does not abate due to the death of a party if the right to sue survives, Rule 2 lays down the procedure for continuing the case with surviving parties, the court said while underscoring that this order ie Order XXII is applicable to appeals mutatis mutandis.

However, referencing State of Punjab v. Nathu Ram (AIR 1962 SC 89) which explained the principles of abatement and the challenges arising from a joint and indivisible decree the court highlighted the reasoning behind dismissing an appeal against surviving respondents when the appeal against deceased respondents abates. The appellate court cannot adjudicate matters impacting the rights of unrepresented deceased parties, the bench emphasised.

“..The decree between the appellant and the deceased respondent becomes final and appellant Court cannot, in any way, modify that decree directly or indirectly. ..the question whether a Court can deal with such matters or not, will depend on the facts of each case and, therefore, no exhaustive statement can be made about the circumstances when this is possible or is not possible”, said the court.

Deliberating on the principle that conflicting decrees the bench cited Sunkara v. Sage Subha Raju & Ors. (2019) and observed that conflicting decrees in the same case are not permissible and emphasized that the absence of legal representatives for deceased respondents could prevent the court from adjudicating the appeal against surviving respondents altogether, leading to dismissal of the entire appeal.

Considering the precedents and the absence of legal representatives for deceased respondents, the court ruled that the appeal abated as a whole. Consequently, the court upheld and maintained the impugned arbitration award.

Case Title: Union of India Vs Chain Singh & Ors.

Citation: 2023 LiveLaw (JKL) 45

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