Case Note & Summary
This appeal by special leave arose from the Allahabad High Court's dismissal of a second appeal as abated. Nine persons, including Kedar Nath, filed a suit for ejectment and recovery of rent against two defendants, alleging that defendant No.1 was the tenant-in-chief who had sub-let the premises to defendant No.2. The trial court decreed the suit for ejectment against both defendants and for arrears of rent against defendant No.1. On appeal by defendant No.2, the District Judge set aside the ejectment decree against defendant No.2 and confirmed the rest of the decree against defendant No.1. The nine original plaintiffs then filed a second appeal in the High Court on February 29, 1952. While the appeal was pending, Kedar Nath, appellant No.3, died on September 8, 1955. No application for bringing his legal representatives on record was made within the prescribed time, so the appeal abated as far as Kedar Nath was concerned. Applications for condonation of delay and substitution filed on October 1, 1956, were dismissed on May 1, 1957. Another appellant, Bhagwati Prasad, died on July 2, 1956, and his widow was substituted. When the appeal of the surviving appellants came up for hearing on September 1, 1958, the respondents raised a preliminary objection that the entire appeal had abated because the interests of the surviving appellants and the deceased appellant were joint and indivisible, and success of the appeal would create two inconsistent decrees. The appellants contended that they constituted a joint Hindu family and the right to appeal survived under Order 22 Rule 2 CPC, and alternatively that Order 41 Rule 4 CPC allowed the surviving appellants to continue the appeal and obtain relief for all plaintiffs. The High Court rejected these contentions and dismissed the appeal. The Supreme Court considered two main points: first, whether Order 22 Rule 2 applied because the appellants formed a joint Hindu family; second, whether Order 41 Rule 4 CPC enabled the surviving appellants to continue the appeal after abatement. On the first point, the Court found no proof of joint Hindu family: the affidavits filed on behalf of the appellants did not aver that Kedar Nath and the surviving appellants formed a joint Hindu family, and the earlier substitution application described Kedar Nath's sons as his heirs and legal representatives, indicating a separate family. Therefore, Order 22 Rule 3 applied and the appeal abated. On the second point, the Court held that Order 41 Rule 4 was not applicable because the second appeal was filed by all plaintiffs jointly, not by one or some of the plaintiffs against the whole decree. The surviving appellants could not be treated as having filed the appeal representing Kedar Nath; Kedar Nath's appeal had abated and the decree had become final against his legal representatives. The Court relied on State of Punjab v. Nathu Ram and approved several High Court decisions, including Baij Nath v. Ram Bharose and Ramphal Sahu v. Babu Satdeo Jha, while disapproving contrary views. It also held that Order 41 Rule 33 was not applicable because the appeal by surviving appellants was not competent. Accordingly, the Supreme Court dismissed the appeal, affirming that the entire second appeal had abated.
Headnote
A) Civil Procedure - Joint Appeal and Abatement - Order 41 Rule 4 CPC - Applicability - When all plaintiffs jointly file a second appeal and one appellant dies and the appeal abates as to him, the surviving appellants cannot invoke Order 41 Rule 4 because the original appeal was not filed by some plaintiffs representing the whole decree; the appellate court cannot reverse or vary the decree in favour of the deceased appellant's legal representatives because the decree has become final against them - Held that the appeal was not maintainable and the High Court correctly dismissed it (Paras Not mentioned). B) Civil Procedure - Joint Hindu Family and Survival of Right to Appeal - Order 22 Rules 2 and 3 CPC - Claim that appellants constituted a joint Hindu family and therefore right to appeal survived to surviving appellants rejected because affidavits did not plead joint family and the earlier substitution application treated the deceased's sons as heirs, so no joint family was proved; Order 22 Rule 3 applied and the appeal abated as to the deceased appellant - Held that the first contention had no force (Paras Not mentioned). C) Civil Procedure - Applicability of Order 41 Rule 33 CPC - Power to pass appropriate decree under Order 41 Rule 33 cannot be invoked when the appeal by surviving appellants is not competent; reliance on Mohomed Khaleel Shirazi & Sons v. Lee Tanneries - Held that Order 41 Rule 33 was not applicable (Paras Not mentioned).
Issue of Consideration
Whether the second appeal abated entirely due to the death of one appellant without substitution and whether the surviving appellants could continue the appeal under Order 22 Rule 2 or Order 41 Rule 4 of the Code of Civil Procedure, 1908
Final Decision
The Supreme Court dismissed the appeal, holding that the second appeal had abated in its entirety. Order 22 Rule 2 CPC was not applicable because joint Hindu family was not proved; Order 41 Rule 4 CPC was not applicable because the appeal was filed jointly by all plaintiffs and not by some as representatives; Order 41 Rule 33 CPC was also not applicable. The High Court's dismissal of the second appeal was affirmed.
Law Points
- Order 41 Rule 4 CPC does not apply to an appeal filed jointly by all plaintiffs
- abatement of appeal as to one appellant on death without substitution makes decree final against that appellant's legal representatives
- appellate court cannot reverse or vary decree in favour of all when appeal abates as to one
- Order 22 Rule 2 CPC requires proof of joint Hindu family for right to appeal to survive
- court cannot permit inconsistent decrees
