IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 109 of 2001 Reserved on : 3rd January, 2008 Date of Decision: 11th January, 2008 Shamsher Singh and another Appellants Versus Chain Ram and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr.Ajay Kumar, Advocate. For the respondents: Mr.G.D.Verma, Sr. Advocate, with Mr.B.C.Verma, Advocate. Sanjay Karol, J. The present appeal arises against the order dated 16th December, 2000 passed by Additional District Judge, Shimla camp at Rohru, H.P. whereby the appeal filed by the appellants against the judgment and decree dated 5.11.1997 was dismissed as having abated. The plaintiffs’ filed a suit for declaration against the respondents to the effect that the suit land was Joint Hindu Family Property of the parties and consequently the Wills of late Shri Devi Saran were illegal and not binding upon the parties to the suit and defendants No.1 and 2 be restrained from interfering with the joint possession of the plaintiffs from the suit property and also not to get the mutation sanctioned in their individual names. As per plaint, Shri Devi Saran and Madan Lal were Whether the reporters of Local Papers are allowed to see the Judgment? 2 having common wife Smt. Nari Devi. Through Shri Devi Saran, Smt.Nari Devi delivered five children, namely, Shri Murti Lal, Sh. Chain Ram and three daughters (defendants) and through Shri Madan Lal, Smt. Nari Devi delivered one son, namely, Kali Ram and Sh.Shamsher Singh and Gulab Singh (plaintiffs) are his sons. Shri Devi Saran left a Will in favour of the defendants, which was assailed by the plaintiffs in their suit. The suit being Civil Suit No. 147-I of 1987:145-I of 1989, was dismissed vide judgment and decree dated 5.11.1997 by Sub Judge (2), Rohru. H.P. The said judgment and decree was assailed by the plaintiffs by way of appeal being Civil Appeal No. 88-S/13 of 1997 before the District Judge, Shimla. During the pendency of appeal, respondent-defendant Murti Lal expired on 6.12.1998. An application dated 17.12.1999 was filed by the plaintiff under Order 22 Rules 4 and 9 read with Section 151 CPC seeking permission of the Court to bring on record legal representatives of deceased Murti Lal. The said application was opposed by the defendants and consequently, following issues were framed by the first Appellate Court:- “1) Whether there are sufficient grounds for condonation of delay and setting aside the abatement, if any, of the appeal? OPA 2) Relief.” Plaintiff Gulab Singh examined himself as AW-1. The Court below decided the issue against the appellant and held that no sufficient cause had been shown to condone the delay and in terms of impugned order dated 16.12.2000 the application and the appeal was dismissed. The plaintiffs assailed the same here. 3 Learned counsel for the appellants has argued that keeping in view the ratio of law laid down by the apex Court in Sardar Amarjit Singh Kalra and others vs. Pramod Gupta, (2003) 3 SCC 272, liberal view should be taken and the plaintiffs’ application be allowed and the delay be condoned for bringing on record the legal heirs of the deceased. According to him, the delay is not deliberate and prima facie the plaintiffs have got a strong case on merits and therefore, due to technical objection their valuable rights and interest in the suit land should not be defeated. Per contra, learned counsel for the respondents- defendants has argued that appellants have not approached the Court with clean hands inasmuch as they have misrepresented certain facts in their application and as such the present appeal needs to be rejected. According to him, the appeal being abated a valuable right has accrued in favour of the respondents, therefore, no indulgence be granted to the appellants. Learned counsel has further submitted that in the absence of any separate application filed under Section 5 of the Limitation Act, seeking condonation of delay, the appellants’ application under Order 22 Rules 4 and 9 read with Section 151, CPC by itself was not maintainable. Having heard the learned counsel I have perused the record. For the purpose of adjudication of the present controversy, the contents of application are being reproduced as under:- “That during the pendency of the present appeal the respondent No.2 late Shri Murti Lal has died on 6.12.98 and the same was disclosed by the other side in this Hon’ble Court and thereafter the applicant contacted his counsel at Shimla and also disclosed the above fact. The Clerk of the counsel got some papers signed from the applicant and he was also informed 4 about the legal heirs left behind by late Shri Murti Lal. Thereafter the applicant remained under the impression that the application under Order 22 rule 4 might have been moved by his counsel and did not receive any information from his counsel. During the last circuit when vice counsel for the applicant appeared in this Hon’ble court, he came to know that no such application has been moved and as such time was sought to move the present application, as there was no negligence on the part of the applicant but he remained under the bonafide belief as noted above. However, in case the appeal has abated against the respondent No.2, the same may be set aside for the reasons stated above. There has been no delay on the part of the applicant for the reasons stated above, however, if there is any the same may be condoned in the interest of justice, as it is not going to cause any prejudice to the other side.” The reply filed by the respondents in its entirety is also reproduced as under:- “1. That para 1 of the application warrants no reply. 2. That the contents of the para 2 of the application are admitted only to the extent that the respondent No.2 Murti Lal died on 6.12.98, but rest of the contents of this para are absolutely wrong and are therefore emphatically denied in toto. As a matter of fact the applicant is alleging totally false story in this para. The application is time barred and the appeal stood abated as a whole by operation of law. The reasons given in this para for condonation of delay are the result of pure concoction. It is specifically denied that the applicant informed the counsel at Shimla as 5 alleged. It is also specifically denied that the mistake is bonafide. No reasons have been disclosed for setting aside the abatement or for condonation of delay.” 3. That para 3 of the application is admitted. It is, therefore, most respectfully prayed that the application may kindly be dismissed with heavy costs for the reasons submitted above in the interest of justice.” Appellant Shri Gulab Singh stepped into the witness box and has got himself examined. Perusal of this application and his statement so recorded would show that the appellant learnt about the death of defendant Murti Lal on 6.12.1998 itself. Therefore, there is no misrepresentation of any fact with regard to the applicant having acquired knowledge of death of Murti Lal on the said date. The only alleged misrepresentation is that the applicant learnt about the death of the deceased from the other side in the Court whereas in his statement he has admitted that he had attended the funeral of the deceased. It is true that the proceedings of the first appellate court do not reflect the fact that the respondents had informed the appellant of the death of deceased, but, however, absence of the same would not make any difference for the simple reason that there is no dispute with regard to the actual date of death and the date on which the appellant acquired knowledge of the same. It is the case of the appellant Gulab Singh that he had visited the office of his Advocate in Shimla and had signed the relevant papers for moving an appropriate application and bringing on record the legal heirs of deceased Murti Lal. The record of proceedings would also show that in the month of 6 August/November, 1999 the matter was transferred from Shimla to Circuit Court at Rohru. The record also suggests that between 23.12.1998 and 17.12.1999 even the respondents did not inform the Court with regard to death of deceased Murti Lal in spite of the fact that the matter was adjourned twice at the request of the parties for final hearing of the main appeal. The fact of the matter is that the application for bringing on record the legal representatives was filed for the first time on 17.12.1999 beyond the period of limitation when the appeal stood transferred to Circuit Court at Rohru, H.P. But, however, keeping in view the explanation given by the appellant and also carefully examining the material on record I am of the considered view that the appellants cannot be faulted for the mistake of his counsel, if any. The appellants have categorically stated that on the death of Murti Lal he had visited Shimla and signed the relevant papers. He is resident of Rohru, which a far off place from Shimla and has taken all possible steps well within his means to have the legal heirs brought on record. It is a matter of record that the appeal was filed and was being adjudicated at Shimla. The appellant had pursued his case diligently even from a distant place. When the matter was transferred to his native place he immediately got the application filed having learnt that the same was in fact not filed. The respondents themselves got the matter adjourned for hearing the appeal. The appellants cannot be penalized for the mistake of the counsel and, therefore, I am of the view that the appellants have been able to show sufficient cause in explaining the delay for bringing on record the legal heirs of the deceased Murti Lal. I am also of the view that the delay ought to have been condoned by the Court below keeping in view the ratio 7 of law laid down by the Apex Court in Sardar Amarjit Singh Kalra (supra), wherein it has been held as under:- “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 in tact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 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. The fact that the Khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabandhi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication 8 of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and brining on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not inter-dependant upon the one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of justice would require the remaining other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others, as well.” (Emphasis supplied) It is true that with the dismissal of the appeal valuable right might have been accrued in favour of the respondents, but, however, accrual of such rights are subject to the appellants right of challenge to the same and subsequent orders passed by the Courts. Plaintiffs’ valuable right in the property cannot be defeated on the ground of mere technicalities and lapse of compliance of procedural formalities. It is not the case of negligence or a case where the plaintiffs have been sleeping over their rights and not exhausted the remedies available with them. The submission of learned counsel for the respondents that in the absence of separate application under Section 5 of the Limitation Act seeking condonation of delay, the main application cannot be considered, in my view, needs to be rejected. In the application itself the appellant Gulab 9 Singh has categorically averred that the delay in filing the application be condoned. The application is supported by an affidavit. As can be noticed from the response reproduced hereinabove, that the defendants have not raised any objection with regard to the same and are in fact silent about the same. Be that as it may be, the fact of the matter is that the appellants had categorically prayed for condonation of delay and in view of a composite application a separate application was not required to be moved. While taking this view, I am supported by a decision rendered by this Court in Mussadi and others vs. Jai Gopaland others, 1994 (1) S.L.J. 90. For the aforesaid reasons, therefore, it cannot be said that appellants’ conduct was such which would disentitle them for the relief prayed for. The delay in filing the application for bringing on record the legal representatives is, therefore, condoned. On the question of abatement of the appeal, I may only refer to the ratio of law laid down by the Apex court in Sardar Amarjit Singh Kalra and others vs. Pramod Gupta, (supra), as under:- “Even assuming that the decree appealed against or challenged before the Higher forum is joint and several but deal with the rights of more than one recognized in law to belong to each one of them on their own and unrelated to the others, and the proceedings abate in respect of one or more of either of the parties, the Courts are not disabled in any manner to proceed with the proceedings so far as the remaining parties and part of the appeal is concerned. As and when it is found necessary to interfere with the judgment and decree challenged before it, the Court can always declare the legal position in general and restrict the ultimate relief to be granted, by confining it to those before the Court only rather than denying the relief to one and all on account of a procedure lapse or action or inaction of one or the other of the 10 parties before it. The only exception to this course of action should be where the relief granted and the decree ultimately passed would become totally unenforceable and mutually self-destructive and unworkable vis--vis the other part, which had become final. As far as possible Courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, `ubi jus ibi remedium' (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice.” “In the light of the above discussion, we hold:- (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. (2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. 11 (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-- vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.” Keeping in view the aforesaid observations of the Apex Court, in my view, the first Appellate court was not right in dismissing the appeal as having been abated. For the foregoing reasons, the present appeal is allowed and the impugned order (judgment and decree) dated 16.12.2000 passed by Additional District Judge, Shimla, Circuit Court at Rohru, H.P., is set aside. The application for bringing on record the legal heirs of deceased Murti Lal, filed by the plaintiffs is allowed and the legal representatives are directed to be substituted. The cause title be amended accordingly. The appeal of the appellants is restored to its original number. The Court below is directed to 12 hear and decide the main appeal No. 88-S/13 of 1997 in accordance with law within a period of six months from the date of appearance of the parties. Record be sent back immediately. The parties are directed to appear before the District Judge concerned on 24th March, 2008. January 11, 2008 (Sanjay Karol) (C) Judge.