TMI Blog1979 (3) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... r cent per annum, the total compensation was worked out to ₹ 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 ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has placed reliance on Nathu Ram's case [1962]2SCR636 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. 4. Now what Order XXII Rule 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 alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment 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. 6. 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 treats 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 modified thereafter on appeal. If a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 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. Prabhakat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arid 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 Mm was a nullity in so far as they were concerned. The High Court was 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 ₹ 20,000/- and it made an order to that effect. 10. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 first 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. 14. It would thus follow that as the plea of abatement of the government appeal against respondent Y. Prabhakar Reddy and its dismissal as 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration 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 of evidence in arriving at its finding. As has been stated, the appellants bought the land for ₹ 26,000/-, which worked out to ₹ 2/- per square yard, and the High Court doubled that rate, and raised it to ₹ 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. 17. As I find no merit in the appeal, it is hereby dismissed with no order as to costs. D.A. Desai, J. 18. I have carefully gone through the judgment prepared by my learned brother P.N. Singhal, J. and I am in full agreement with him that the appeal be dismissed. This separate opinion becomes necessary because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 23. There were cross appeals arising from the same Award before the High Court. The record does not show that any order was made for 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 ₹ 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 ₹ 12/- to ₹ 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). 24. Undoubtedly, one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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. 26. 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? 27. 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 alteram portent rule. It is a fundamental rule of natural justice that a man has a right to be heard-audi alteram 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 and Ors. v. Shyam Sundari [1965]1SCR231 . N.K. Mohammad Sulaiman v. N.C. Mohammad Ismail and Ors. [1966]1SCR937 and Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors. [1975]2SCR932 . 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 31. The principle deducible from this decision of the 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. 32. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 34. 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. 35. In a very early decision in Brij Indar Singh v. Lala Kanshi Rain and Ors. AIR 1917 P.C. 256 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 Shankat Jagtap v. Sunderabai Bharatar Sakharam Jedhe and Ors. [1965]3SCR211 analysed the principle underlying Order 22, Rules 3, 4 and 11 as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legal representatives of Shadi Ram were impleaded in his appeal and as both these appeals arose out of the fame 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. A.I.R Punj. 113. 38. In State of Rajasthan and Ors. v. Raghuraj Singh 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss-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. 41. 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-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard 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 appeal and 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 legal representatives of the same person occupying the position of respondent in cross-appeal are not s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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