Order XXII CPC| Appeal Doesn't Abate As A Whole Merely Due To Non-Substitution Of Some Legal Representatives: Gauhati High Court

"…the provisions contained in Order XXII would lend credit and support the view that they are devised to ensure the continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remains intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order XXII are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice."

Factual Background:

The original plaintiff (predecessor-in-interest of the respondents herein) instituted a suit for eviction, on the ground of non-payment/default in payment of the rent and for delivery of khas possession of the suit premises, against the original defendant no. 1 (predecessor-in-interest of the petitioners herein). The defendant no. 2 was subsequently impleaded in the said suit and he took a stand that the plaintiff did not have any right over the suit premises. The suit was dismissed, followed by dismissal of the title appeal. Consequently, a revision was filed before the High Court, which was also denied. Then, it went on to the Apex Court on appeal, wherein the matter was remanded back to the First Appellate Court ("FAC") for fresh disposal on merits.

Some of the LRs of the original plaintiff were substituted before the FAC, but some others were left. Similarly, some of the LRs of defendant no. 2 were also not substituted. The same was brought to the notice of the FAC by the original defendant no. 1 and contended that it amounts to abatement of the entire appeal. But the said contention was rejected by the FAC. Then, the Gauhati High Court was moved under Article 227 against the decision of the FAC.

Issue for Consideration:

The only substantial issue before the Court was to decide, "whether non-substitution of some of the LRs of the original plaintiff and some of the LRs of original defendant no. 2 will result in abatement of the appeal as a whole?"

Contentions:

The Petitioners contented that the non-substitution of the LRs of the original plaintiff as well as the non-substitution of some of the legal representatives of the original defendant no. 2 amounts to abatement of the appeal as regards the said persons and consequently, as the rights involved in the said appeal are not severable, the appeal stands abated as a whole.

On the other side, it was argued on behalf of the respondents that the suit is pertaining to landlord tenant dispute and each co-owner after the death of the original plaintiff has an independent right to file a suit or continue with the suit and it is the mandate of law that all co-owners need not join in an eviction proceeding initiated by one of them.

It was further submitted that the question of the appeal having been abated for not substituting some of the legal heirs of the original defendant no. 2 as contended by the petitioners is also misconceived inasmuch as, the instant suit is a suit for eviction of the defendant no. 1 (petitioners herein) and the stand of the defendant no. 2 that he had a right over the suit land had already been negated by all the Courts including the Supreme Court.

Findings:

Relying on Kanta Goel v. B.P. Pathak & Ors, (1977) 2 SCC 814, the Court held each co-owner is as much as an owner of the entire property as a sole owner of the property is and a suit for eviction is maintainable in absence of the other co-owners on record. Each co-owner has a separate independent right to file a suit for eviction. In the instant case, the respondents became the co-owner of the property in question after the death of the original plaintiff which happened much after the suit initially was decreed by the Trial Court and as such each of the respondents have an independent right to seek eviction.

The Court relied on the judgment of the Supreme Court in Dolai Maliko & Ors. v. Krushna Chandra Patnaik & Ors, AIR 1967 SC 49, to hold that not arraying/substituting all the legal representatives of the plaintiff would not lead to abatement of the appeal as a whole and more so in case of the present one wherein each of the respondents have an independent severable right to claim eviction of the petitioners.

Further, the Court cited the decision of the Apex Court rendered in Kanhaiyalal v. Rameshwar & Ors, (1983) 2 SCC 260 wherein it was held that failure to implead the legal representatives of a pro forma respondent against whom no relief is claimed would not have the effect of abating the appeal preferred by the appellants therein. Therefore, not substituting the LRs of defendant no. 2 will have no deciding effect on fate of the appeal.

Lastly, while dismissing the instant petition, the Court reiterated the observation made by the Supreme Court in Sardar Amarjit Singh Kalra (Dead) by LRs. & Ors vs. Pramod Gupta (Smt) (Dead) by LRs. & Ors., (2003) 3 SCC 272, wherein it was held:

"Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings."

Case Title: Deochand Sarda (Dead) by LRs. & Ors. v. Surendra Narayan Sukul (Dead) by LRs & Ors

Case No.: CRP(IO)/220/2019

Date of Judgment: 25 January 2022

Coram: Justice Devasish Baruah

Citation: 2022 LiveLaw (Gau) 4