JAYARAMA REDDY & ANR.

REVENUE DIVISIONAL OFFICER & LAND ACQUISITION

OFFICER, KURNOOL

March 23, 1979

[P. N. SHINGHAL AND D. A. DESAI, JJ.]

Code of Civil Procedure; 1908-0rder XXII r. 4-Scopc of-Cross appeals -Legal representatives of deceased appellant brought on record-Appellan~ in crossappeal fatled to bring them on record of cross appeal-CroJs appeal-If abates-, Vo objection raised before the High Court-.ff could be raised in further appeal.

Order XXII Rule 4(1) CPC provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or d.efendants alone, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made

a party and shall proceed with th~ suit. Sub-rule (3) of the Rule provides D that \vhere, within the time limited by law, no application is made under sub rule (1) the suit shall abate as against the deceased defendant.

The Ia-nd in dispute, which belonged to three persons, was acquired by the State Government for a public purpose and the market value was fixed at Rs. 2/· per square yard, On appeal by the claimants, it was raised to Rs. 12/- per square yard.

Against the order of Subordinate Judge, both the State and the claimants filed appeals before the High Court.

\Vhile the aippeals were pending before the High Court, one of the claimant~ died. Tbe legal representatives of the deceased claimant were brought on record in the claimant's appeal, but the Government took no steps to bring the legal representatives of the deceased claimant on record in the appeal filed by it.

Dismissing the claimant's appeal and allowing the Government appeal the High Court reduced the price of the acquired land to Rs. 4 jper square yard.

In appeal befor'e this Court the claimants contended that since the legal representatives of the deceased claimant were not brought on record within the period of limitation, the Government appeal abated and stood disrnissed,

Dismissing the appeal,

HELD: (per Shinghal, J.) I. It is not correct to say that the Gi:>vernmeot appeal stood dismissed against the surviving respondents because th'e Govern ment failed to bring the legal representatives of the deceased claimant on record within the specified time limit. The question whether the right to sue survived agaM1st the surviving respondents alone, was a matter for the appellate court to examine and decide after hearing the parties \vith regard to the question of jointness or otherwise of the de:ree and the further question whether there was any possibility of two contradic:ory decrees. [605 F-G]

2. There is no justification for the arguro'ent that the High Court's decree wa.s a nullity because it was passed against a dead pernn. A decree against a dead person is a nullity because it cannot be allowed to operate against his legal representatives when they were never b:-ought on the record to defend the case.

It is held a nullity because it cannot be executed against his legal representatives who had not ha.d the full opportuuity o.f being heard in respect of it.

If the respondent to an appeal dies and the appellate1 court loses sight of that development or ignores it, it will still be permissible for the court hearing the appeal to bring his legal rcpresentati->es on the r€X:ord on an r'•)plication to that efi'iect and to consider any application for condonation of delay. It is permi:sisible for the appellate court 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. [606 B-D]

3. \Vhile the law treats such decree as a nullity qua the legal representative of th~ deceased defendant or respond'ent, there is nothing to prevent him from decidil:'!g that he wou!d not treat the decree as a nullity but would abide by it as it stood or as it rn&y be modified on appeal. If a legal repr'csentative adopts that alternative, it cannot be sa'.d that his option to b-~ governed by the decree is against the l<tVi' or any concept of public policy or public n1ora1ily.

It is a matter entirely <1t th'e discretion of the legal representative to decide whether he would raise the question that the decree had beoome a nullity, at the appropriate time, or to abando•.1 that obviously technic<!l obj'ection and fight th'e appeal on the mrrits. [606 F-H]

4 .. Nor ran it be said that the appellate .:ourt is denuded of its jurisdiction to hear an appeal in which one of the respondents had died and th'e right to sue did not survive against the surviving defendant or defendants alone merely because uo applk:ation had been mad'e to bring his legal representative on the

record when no objection to the effect was raised by any one of them. [607 B]

5. At the same time, an inference as to the abandonment of such plea of abafement canont be drawn unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully. [607 DJ

In the instant case, on th'c deah of one of the three cla:n1ants the other two surviving claimants brought the legal repre3en+atives of the deceased on the record.

They knew that the legal repres'entatives o? the de-;::eased claimant had not been brought 01.1 the . record of the Government appeal within the iime prescribed by la\v and th21t, ther'efore, the appeal ~:tood abated. E\'en so, they mad?· no applicat'.on to th.:: High Court seeking. dismissal of the Government appeal.

This position continued for as long as five years.

Two courses were open tlo the claim::ints : (i) to move th'~ High Court for the diEmissal_ of the Government appeal, or fii) to allow that appea.1 to be heard and decided on merits.

The claimants chose the second course.

When the appeals came up for hearing before the Higl] Court, the appeal was argued on merits \vithout raising an objection on this point.

After the High Court had pronounc'ed its judgment, the c1aimants had asked for a certificate for leave to appeal without asking for a review of its judgment on the ground that the legal representatives were not brought on the record of the Government appeal.

So a point of defence which was wilfully an<l deliberately abandoned by a pBrty in a civil

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JAYARAMA REDDY V. REVENUE OFFICER 601

-case at 21 crucial stage, cannot be allowed to be taken up later at the will of the ; party which had abandoned ihe point _or as a la&t resort, or as an after thought.

Gaekwar Baroda State Railway v. Hafiz HabibulHaq & Ors., 65 InJian Appeals 182: Thakore Saheb Khanji Kas.hari Khanji v. Gulam Rosul Chandbhai, AIR 1955 Bon1. 449; Punjflb State v. Sardar Attna Singh, AIR 1963 Pub. 113, State of Rajast/Uln & Ors. v.

Raghuraj Singh, AIR 1968 Raj. 14; held inapplicable.

6. The High Court had rightly taken into consideration all factors necessary for coming to the right conclusion for fixing the rate of compensaition payable to 1be cl.:U1nants namely that a few months before the date of at:l[uisition the claimants them5elvespurchased the land at Rs. 2/- per square yard, that they did not make any improvements after its pun; h2,5e and that the previous owners had not sold the land for any compelling reason. [611 B-D]

Desai, J. (concurring) 1. The basic principle underlying O. XXII rr. 3 and '4 CPC is ::1 facet of natural justice.

It is a fundam;!ntal rule of natural justice thait a man has a right to be heard where a decision affecting him or his interesit is to be recorded. As a corollary to the rule of audi altrem partem it is provided in the Code of Civil Procedure that where a party to a proceeding dies pending the proceeding and the cause of action survives, the l'cgal represenatives of the D deceased party should be brought on record, which n1eans, that such legal represent.a.tive must be afforded an opportunity of b'eing heard before any liability is fastened on them.

Although the legal representatives LJf a deceased plaintiff or defendant must b'e substituted on the pain of the action abating, \Vith utmost diligence, from a multitude someone n1ay escap.: notice and the consequent hardship in abatement of action led this Court to assrt the principle that where some legal representatives were brought on record permitting an E inference that the estate was adequately represented, the action would not abate though it 'vould be the duty of the other side to bring on record even at a later , date those legal representatives who were overlooked or missed. [614 E-H]

2. The principle deducible from decisions of this Court is that if the deceased had, as a party, a right to put forth his case. those likely to be affected by the decision, o•J death of the deceased, had the same opportunity to put forth their

case and even if from a large number having identical interest some are not brought on record those \Vho arc brought on record would adequately take care of their inte:est and the cause, in the ribscnce of some such, would not a-bate .

1615 F-GJ

DtIYa Ram & Ors. v. Silyam Sundari, [1965] 1 SCR 231; N. K.

Mohan1mad Sulain1an v. N. C. Moha1nmad Ismail & Ors., [1966] 1 SCR 937; HarN1ar Prasad Singh & Ors. v. Balmiki Prasad Singh & Ors., [1975] 2 SCR 932; referred to.

3. Yet a1J.other principle is th<>·~ if the legal representatives of the deceased party were before the court in the sam'e action even if in another capacity, failure to bring them on record in a specific legal position would not result in abatement of the action. [615 HJ n

Mahabir Prasad v. }age Ram & Drs. [1971] 3 SCR 301; referred to.

4. Where a. d'ecree partly satisfies each of the two parties in a suit, both parties may prefer an appeal cha11enging only that part of the decree by \Vhich each party is dissatisfied. But where one of the two parties appeals and a ootic~ of app(:al is served on the other, the respondents receiving the notice may pr'l:!fer

cros&-objections under O. XLI, r. 22 CPC. In such a case, though the respondent may not have appeal'ed from any part of the decree, he may take crossobjections to the decree which he could have taken by way of appeal. The parameters of cross-objections are limited to the contention which could prop'erly be taken in an appeal against a decree or part of a decree. [617 B-D]

5. When legal repres'entatives 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 substituted, its out come would be that they were on record in the connected proceeding before the same court hearing both the matters, in one capacity though they Yiere not described as such in their other capacity, namely, as legal representatives of the deceased respond'ent. To ignore this obvious position would be giving undue importance to form rather than substance. The anxiety of the court should be whether those likely to be affected by the d'ecision in the proceeding were before the court having full opportunity to canvass their case.

Once that is satisfied' it can be said that the provisions contained in rr. 3 and 4 of 0. XXII are satisfied in a given case. To taik'e another view would be to give an opportunity to the legal representatives of a deceased party in an appeal having had the fullest opportunity to canvass their case through the advocate of t'ieir choice appearing in cross-2•pp'eals for them and having canvassed their case and Jost, to turn round and contend that they were not before the court as legal representatives of the same person in his other ..:apacity, namely, respondent in the crosti-app'eal.

In other words, those legal representatives were before, the court all throughout the

haring of the appeal as parties to the a.ppeal and canvassed their case and were heard through their advocates and they had the full opportunity to put forth whatever contentions were open to them in the appeals and to contest the con tentions advanced aga.inst th'em by the opposite side and yet if the other view is taken that as they were not formally impleaded as legal representatives of the deceased respondent in the cross-appeal that appeal has abated, it >, vould be wholly ujust. It is very difficult to distinguis-h on principle the approach of

thecourt in appeals and cross-objections and in cross-appeals in this behalf. The cases which have ta.ken the vi'ew that in cross-appeals the position is different from the one in appeal and cros, g-objections do not proceed on any discernible legal principle.

Nor can they be explained by any de1nonstrable legal principle but in fact they run counter to the established legal principle. [623 G-H; 624

A-CJ

Brtj 111der Singh v. Lala Kanshi Ram & Ors .. AIR 1917 PC 156; Rangubai Korn Shanker Jagtap v. Sunderabai Bhra'i/ar Sakharam /edhe & Ors., [1965] 3 SCR 211 at 216·217; app!i'ed.

Sankaranaraina Sara[aya v. Laxmi Hengsu & Ors., AIR 1931 Mad. 277; State of Raiasthan & Ors. v. Raghurai Singh, AIR 1968 Raj. 14; not approved.

H In the instant case the legal representatives of the deceased claimant were brought on the record of the "Claimant's app'eal.

Both the appeals were hea.rd together. Their counsel argued their case in both appeals. Therefore, they were

JAYARAMA REDDY v. REVENUE OFFICER (Shinghal, ],} 603

' l:>efore the court all through. Th'e fact that they had not been described as legal A

represntatives of the deeeased in the Government appeal could not make any .difference and their appeal has not abated.

_On the question of compensatio•.:i no case had been made out for interfering with the view of the High Court.

')VIL APPELLATE JURISDICTION : Civil Appeal No. 2314 of 1969. 1 ' From the Judgment and Decree dated 4-2-1969 of the Andhra

-..,.(--Pradesh High Court in Appeal No. 180/64.

A. K. Sen and A. Subba Rao for the Appellant. •, c

T. V. S. N. Chari for the Respondent.

The following Judgments were delivered :

SHINGHAL, J.-This appeal is by a certificate of the High Court of Andhra Pradesh on the valuation of the subject matter and is directed against its judgment dated February 4, 1969.

The State Government acquired 2 acres and 79 cents of the land of the appellants in Kurnool town, for locating a bus depot of the Andhra Pradesh State Transport Corporation. It was arable land within the municipal liniits of the town, with two trees and an old compound wall.

Its possession was taken by the State Government on May 25,

1962. The market value of the land 'was fixed at Rs. 27,042.53 at the rate of Rs. 2/- per square yard.

The compound wall and the trees were valued at Rs. 930/- and after allowing a solatium of 15 per cent and interest at 4 per cent per annum, the total compensation was

 "worked out to Rs. 33,069.12.

N. Jayarama Reddy, Y. Prabhakar r"

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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 Rs. 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 Jnly

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, Knrnool, 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 Jndge.

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 were pending in the High Court, Y. Prabhakar Reddy, one of the three claimants of the compensation for the acquired land, died on April 3, 1964.

An application was. made in the claimants' appeal to bring his legal representatives on the record, and the High Conrt passed an order on July 14, 1964 (in C.M.P. No. 7284 of 1964) bringing appellants 4 to 9 on record as the legal representatives of Y. Prahhakar Reddy.

It is admitted before me that was done before the abatement of that appeal. It seems that no application was made in the . government appeal to bring the legal representatives of the deceased respondent Y. Prabhakar Reddy on the record of that appeal.

Both the appeals were, however, taken up for hearing together and were disposed of by a common judgment of the High Court dated February 4, 1969.

The High Court dismissed the claimants' appeal, but allowed the government appeal and reduced the price of the acquired land from Rs. 12/- to Rs. 4/- per square yard "with the usual solatium and interest at 4 per cent as allowed by the lower court." While the government felt satisfied with that judgment, the claimants applied for a certificate which was granted on the ground that the value of the subject matter of the suit in the court of first instance was upwards of Rs. 20,000/- and the value of the subject matter in dispute on appeal to this Court was also upwards of that amount and the decree appealed from did not affirm the dedsion of the lower court.

On the strength of that certificate the appellants have come up to this Court in appeal.

It has been argued by Mr. Sen on behalf of the appellants that as Y. Prabhakar Reddy, respondent No. 2 in the government appeal died on April 3, 1964, and his legal representatives were not brought on the record within the period of 90 days provided by law, that appeal abated thereafter and stood dismissed automatically and could not be resurrected and beard by the High Court as a cross-appeal to the claimants' appeal.

The learned counsel bas placed reliance on the decisions of this Court in The State of Punjab v.

Nathu Ram,(')

ameshwar Prasad and others v. Mis Shyam Beharilal Jagannath and others,(2) Ramagyd; Prasad Gupta and others v. Murli Prasad(') and Harihar Prasad Singh and others v. Balmiki Prasad Singh ana others.(') to support his argument.

In particular, be bas placed

(1) [1962] 2 S.C.R. 636

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JAYARAMA REDDY v. REVENUE OFFICER (Shinghal, /.) 605

reliance on Nathu Ram's case(') 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 w; tb the joint right decreed in their favour.

In particular, he bas 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 sl!ares of th~ claimants, it has been argued that the whole of the government ap!Jeal should have been dismised because of its abatemem against the deceased respondent.

Now what Order XXII r. 4 (I) C.P.C. provides is that where one of two or more defendan!s dies and the right to sue does not survive against the surviving defendant or defendants alone, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

Sub-rule (3) prov; des further that where w; thin the time limited by law no application is made under sub-rule (1), "the suit shall abate as against the deceased defendant." So as Y. Prabhakar Reddy, respondent No. 2 in the government appeal, died on April 3, 1964, and an application was not made to bring his legal representatives on the record within the specified time limit, the appeal automatically abated as against the deceased respondent, and it is not correct to say that the appeal automatically stood dismissed against the surviving respondents because of that default.

The question whether the "right to sue" survived against the surviving respondents alone, was a matter for the appellate court to examine and decide after hearing the parties, with due regard to the question of jointness or otherwise of the decree and the further question whether there was any possibility of two contradictory decrees etc.

As that was not done by the High Court where the government appeal was pending, there is no justification for the argument that the appeal automatically stood dismissed after the expiry of the period of 90 days from the death of respondent Y. Prabhakar Reddy on April 3, 1964 because of the abatement of the appeal against him.

But even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the

deceased respondent, there is no justification for Mr.

Sen's further argument that the High Court's decree dated February 4, 1969, was a nullity merely because it was passed against a dead person, namely, Y. Prabhakar Reddy. It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal representative can not be condemned unheard.

So if a respondent to an appeal dies, and the appeal abates because of the failure to bring his legal representative on the record within the time limited by law, and the appellate court loses sight of that development 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 Jaw has therefore provided, and accepted, modes for reopening and hearing the appeal in such cases.

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 Jaw treat~ 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 representative adopts that alternative or course of action, it cannot possibly be said that bis option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the leg'1_l represeI!!aJive of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at tho. appropriate time, namely, during the course of the hearing of any appeal may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits.

He may do so, either because of his faith in the strength of his case on the meriti, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of

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JAYARAMA REDDY v. REVENUE OFF!Cllil (Shinghal, J.) 607

cross-appeals, he may have the impression that bringing the legal representative of the dece_ased respondent on record in an appeal by a coappellant will enure for the benefit of or be sufficient for purposes of the cross-appeal.

An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is therefore a matter at the discretion of the legal representative of the deceased respondent and there is no justification for the argument to the contrary.

It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in which otfe of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone me!ely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by any one.

But, as is equally obvious, it will not be fair to draw an infernce as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully.

The following facts have been well established in this respect in the present case.

It will be recalled that the Subordinate Judge made his order in the reference under section 18 of the Land Acquisition Act on July 30,

1963, and the memorandum of the government appeal was filed in the High Court on December 7, 1963.

The claimants filed their crossappeal No. 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 wa_f! a co-appellant in the claimanis' 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. Prabhakar 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 appeal, and that it stood abated against them because of the expiry of the time limited by law

19-253SCI/79

SU!>REME COURT REPORTS [1979] 3 s.c.R.

in that respect.

Even so, they did not make an application to the High Court for the dismial of the appeal on the ground that it could

not survive against the surviving respondents because of that. basic defect, in the facts and circumstances of that case.

That in fact continued to be the position for a long period of some five years. It is not disputed that the appeals came up for hearing in the High Court on or about February 4, 1969, but, even then, no objection was taken to the hearing of the government appeal in spite of the fatal defect in its constitution. On the other hail'tl; when the two appeals were taken up for hearing, the High Court heard, without any objection, not only the counsel for the appellants in the government appeal, but also C. Padmanabha Reddy, who was counsel for the respondents in that appeal and for the reconstituted array of appellants in the claimants' appeal.

The legal representatives of Y. Prabhakar Reddy and their counsel were thus aware of the fact that the government appeal had abated against respondent Y. Prabhakar Reddy, and it will not be unfair to assume that they, or, at any rate, their counsel knew that it was open for them to contend that the appeal was liable to dismissal for that reason.

Two courses of action were therefore open to them :

(i) to move the High Court for the dismissal of the government appeal, or (ii) to allow that appeal to be heard and decided on the merits and to abide by any decree which the High Court might pass in the two E appeals.

The legal representatives and their counsel did not choose to adopt the first course of action, and it will be fair and reasonable to hold that they wilfully chose the second course of action.

That was why their counsel C. Padmanabha Reddy, who was counsel for all the respondents in the government appeal, and for all the appellants in the claimants' appeal, argued both the appeals on the merits.

The High Court heard and decided the cross-appeals by its impugned judgment dated February 4, 1969, and it will be a proper conclusion for me to reach that the legal representatives of Y. Prabhakar Reddy wilfully abandoned any plea that might have been available to them on the basis of the abatement of the government appeal against the deceased respondent.

It was only after the judgment of the High Court went aaginst them, that the legal representatives of Y. Prabhaka_r Reddy decided to take np the question of abatement, for the first time, in the petition which they and 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 him was a nullity in so far as they were concerned. The High Court was

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JAYARAMA REDDY v. REVENUE OFFICER (Shinghal, J.) 609

simply asked to allow the application for the certification of the appeal A on the ground that the value of the subject matter was upwards of Rs. 20,000/- and it made an order to that effect.

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 as; de of the abatement and condoning the delay, for whatever it was worth. It has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an after thought.

In fact in a case where a point has been wilfully abandoned by a party, even if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will be disadvantageous to the other party .

Mr. Sen has however made a reference to Gaekwar Baroda State Railwriy v. Hafiz Habib-ul-haq and others( 1) and Thakore Saheb Khanji Kashari Khanji v. Gu lam Rasul Chandbhai (2 ) for the purpose of showing that the government appeal was not at all maintainable in the High Court because of its abatement against respondent Y.

Prabhakar Reddy as that was a matter relating to the jurisdiction of the High Court which could not have been abandoned.

The provisions of section 86 C.P.C. came up for consideration in both those cases and it was held that as the section was based upon public policy or purpose, it was not open to a ruling chief to waive its provisions.

Those were therefore different observations which have no bearing on the present controversy for, as has been stated, the decision of the legal representative of a deceased respondent to be bound by a decree in spite of its abatement does not involve any question of public

policy.

Mr. Sen's reference to Maharana Shri Davlatsinghji Thakore Saheb of l.imdi v. Khachar Hamir Mon,(') Town 1Wu11icipal Council, Athani

(!) 65 Indian Appeals 182

(2) AJ.R. 1955 Bombay 449

(3) I.L.R. 34 Bombay 171.

610 SUPRl!Mll COUl.T REPORTS [1979] 3 s.c.R.

T. Presiding Officer, Labour Court, Hubli and others,(') Simpson and

flll(}ther v. Crowle and 0th.rs(•) Chief Justice of Andhra Pradesh and tmother v. L. V. A. Dikshitula and others(3 ) and P. Dasa Muni ReaiJy

Y. P. Appa Rao(') is equally futile because they were cases of inherent lad of jurisdiction in the co.i:t cottcerncd or raised the question of the bar of limitation .

Mr. Sen has placed reliance OD. Punjab State v. Sardar A.tm" Singh(") and State of Rajasthan and others v. Raghuraj Singh(') to show that where an application is not mad• to bring the legal repreientative of the deceased respondent on the record of a cross-appeal, that appeal will abate, and it wiU not be permissible for the appellant to claim the benefit of the fact that the legal repr-ntative of the deceased respondent had been brought on the record in the crcJ£s-appeal filed by him. I have gone

tlrrough the cases, but they are clearly distinguishable. The respondent in both cases died durin:; the pendency of the first appeal, and an objection as to abatement was takea during the course of the hearing, so that there was no questiGn of abandoning the objection in either of !hese cases and it was permissible to apply to the court for th~ usual consequences which follow for non<oapliance with the provision's of Order XXII rules 3 and 4 C.P.C.

Those decisions cannot threfore be of any help in a case like this.

It would thus follow that a.s 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 the decision of the High Court has gone against them.

That leaves for consideration the question whether the finding of --' \,' fact of the High Court that the pre6ent appellants were entitled to compenation at Rs. 4/- per square yard suffers from any such e1Tor as to \

require interference by this court.

Mr. Sen has argued that the High Court went wrong in interfering with the finding of the Subordinate Judge and in excluding the sale deeds Exs. A 1 and A 2 altogether from consideration when they were important and were by themselves sufficient to uphold the finding of the Subordinate Jude that the market value of the land was Rs. 12/- pe< quare yard.

(!) [1970] 1 S.C.:R. 51.

(2) [19211 3 K.B. 243,

(3) A.l.R. 1979 S.C. 193 .

(5) A.l.R. 1963 Punjab 113.

(6) A.I.R. 1968 Rajasthan 14.

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JAYARAMA REDDY V REVENUE OFFICER (Desai, !.) ti I I

I find from the impugned judwent that the High Court st took into consideration all tboe factor~ which were in favour of the claimants, namely, the fact that the li!_nd was situated within the municipal limits of Kurnool town, it was within easy reach of the government hospitals, the railway station, the Medical College and the State Bank etc., it was suitable as a building site etc. The High Court also took due notice of the fact that although Kurnool was not made the capital of Andhra Pradesh, it was a growing town and had an importance of its own. It then examined those facts which persuaded it to reduce the market value. In doing so, it took note of the fact that the land under acquisition had been bought by the Claimnnts themselves for Rs. 26,000/- on October 30, 1961, just eigljt months before the issue of the notification for its acquisition. That rate worked out to Rs. 2 /- per square yard. Then the High Court took into consideration the other facts that the claimants did not ell'ect any improvement in the land after its purchase, it was not their case that the previous owner had

old it for any compelling reason, the claimants were not even responsible for preparing the lay out plan for the locality (which bad been accepted by the municipality even before they had ])urchased the land) and that they merely obtained the sanction of the Town Planning department to the lay out which had already been sanctioned. The High Court carefully examined the various sale agreements En. A3, AS, A7, AlO, Al2 and Al4, and rejected them on the ground that they did not appear to be genuine and had mostly been executed on the same date.

That left th~ two registered sale deeds Exs.

A 1 and A2 for consideration on which Mr. Sen has placed considerable reliance.

The High Court notked that they were for the sale of very small portions of land, namely, 3 cents and S 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 ig11ored or misread any important piece of e; vidence in arriving at its finding. As has been stated, the appellanfs bought the land for Rs. 26,000/-, which worked out to Rs. 2/- per square yard, and the High Court doubled that rate, and raised it to Rs. 4 /- per quare 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.

As I find no merit in the appeal, it is hereby dismissed with no order as to costs.

DESAI, J.-1 have carefully gone through the judgment prepared by H my learned brother Shinghal, J. and I am in bill agreement with him that the appeal be dismissed.

This separate opinion become~ necessary because in my opinion in the facts and circumstances of this case the Government appeal had nol abated at all.

All the relevant facts have been extensively set out by my learned brother and it is not necessary to repeat them here.

Even the nomenclature in re, pect of the two appeals as given by him may be adopted for

J 1 facility o[ appreciating the point under discussion.

After the award by the Subordinate Judge, two appeals came to be preferred, one by the Revenue Divisional Officer styled as 'Government appeal', !Ind another by the claimants styled as 'claimants appeal'. Both .J ' these appeals were cross-appeals arising from the Award of the Subordinate Jude.

During the pendency of the. appeals in the High Court, Y.

Prabhakar Reddy, one of the three claimants, being an appellant in the claimants' appeal and respondent in Government appeal, died on April 3, 1964 and upon an application made' to the Court in the claimants' appeal bis legal representatives appellants 4-9 were brought on record.

Admittedly, the legal representatives of deceased Y. Prabhakar Reddy one of the respondents in Government appeal were not brought on record till both the appeals were disposed of by a common judgment rendered on February 4,. 1969.

The High Court by its judgment dismissed the claimants' appeal and partly allowed the Government appeal reducing the compensation payable in respect of the acquired land from Rs. 12/- to Rs. 4/- per sq. yd.

Original two claimants and heirs of deceased claimant Y. Prabhakar Reddy preferred the present appeal to this Court by certificate granted by the High Court under Article 133 of the Constitution.

Mr. A. K. Sen contended that as heirs of one of the claimants Y.

Prabhakar Reddy, respondent in Government appeal, were not brought on record within the prescribed period of !imitation after his death pend- . ing the appeal, not only the Govermnent appeal abated against Y. Pra _ _, \.' bhakar Reddy but in view of the decision of this Court in State of Punjab \

v. Nathu Ram,(') the appeal abated as a whole and, therefore, the judgment of the High Court partly allowing the Government appeal- -' ,. and reducing the compensation from Rs. 12/- to Rs. 4/- per sq. yd of the acquired land must be set aside on this short ground alone.

In view of the decision in Nathu Ram's case, if Government appeal had abated 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.

There were cross appeals arising tram the same Award before the High Court.

The record does not show that any order was made for

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JAYARAMA REDDY v. REVENUE OFFICER (Desai, !.) 613

consolidating these appeals as is usually done when both the partie"s 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 Rs. 12/- per sq. yd. awarded by the Subordioote 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 Rs. 12/- to Rs. 2/- per sq. yd.

The contest between the parties wonld 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. (ee Nathuram's case) .

Undoubtedly, one of the original claimants Y. Prabhakar Reddy being one of the appellants in the claimants' appeal died and specifically his legal reprc>entatives were brought on record within the prescribed period of limitation and that was done much prior to the date of hearing of the appeals by the High Court.

As is notorious, the inadvertence, if not down right indifference, of those incharge of the Government appeal is demonstrably established because the counsel incharge of the Government appeal must have received the notice moved on behalf of the appeUants-- claimants seeking to bring the k:gal representatives of deceased Y. Parbhakar Reddy on record and Jmending the cause :it!e of the claimants' appeal accordingly.

This was sufficient notice to the counsel incliarge of the Govrenment appeal that the same gentleman was one of the respondents in Government appeal and his death having been notified, as a necessary corollary his heirs will have to be brought on record in Government appeal. Nothing more was required to be .j _ done by lhe counsel incharge of Government appeal except to bodily

r 1 adopt those who applied to come on record in place of decea!ed Y. ( Prabhakar Reddy as his leal repreoentatives in claimants' appeal to be \ substituted as legal representatives of deceased respondent Y. Prabhakar °' 1 Reddy in Government appeal.

This was not done. It may aho be

mentioned that both the appeals were heard together and were di1posed

of by a common judgment. As has been pointed out by Shinghal, J., no contention was taken on behalf of the respcndents in Government appeal thJt on account of the failure of Government to bring the heirs of deceased Y. Prabhakar Reddy on record within the time prescribed, the appeal has abated but on the contrary Government appeal was allowed to be proceeded in the presence of all parties including legal representatives of Y. Prabhakar Reddy who were appellant! in claimants' appeal and ended in a judgment adverse to them. What is the consequence of failure to raise this contention has been examined by my learned brother in detail and I am in agreement with his conclusion.

614 SUPREME COURT llBPORTS (1979] 3 s.C.R:.

Now, Order 22, Rule 4 read with Order 22,, Rule 11 of the Code of Civil Procedure require that the appellant in Government appeal should have brought the legal representatives of respondent deceased Y. Prabhakar Reddy, on record.

There is no controversy that rule' 4 of Order 22 read with 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 tbe aPPeal would abate.

The, ubstantial question is : where cross appeals are preferred against a common decree or an Award and in the cross appeals 1he parties are arrayed in rival positions and where one party as appeflant 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 ?

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 altrem partem rule.

It is a fundameutal rule of natural justice that a man has a right to be hard audi altrem 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 decisiou one way or the other is recorded affecting a party without giving that party an opportunity of being heard.

This rule embraces the whole notion of fair procedure and the rule requiring a hearing is of almost universal validity.

It has made a serious inroad in administrative decisions.

It should enjoy a top place in a judicial proceeding.

The first limb of this rule audi altrem partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded.

As a corollary to this rule it is provided in the Code of Civil Procedur~ that where a party to the proceeding dies pending the proceeding a'nd the cause of action survives, the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of bei'!g heard fore any liability is fastened upon them.

It may be that the legal representatives in a given situation may be pe, rsonally liable or the estate of the deceased in their hands would be Jiablct and in either case a decision one way or the other, adverse or favourable to them, cannot be recorded unles they are given a:n opportunity of being heard. Order 22, rules 3 and 4 codify these procedural safeguards translating into statutory requirement one of the principles of natural justice.

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JAYAUMA REDDY v. l!.EVENU! OFFICER (Desai, ].) Gli

If this is th~ discernible principle underlying order 22, rules 3 and .i it bas been dell'.lonstrably established by interpretation put on !belle two rules.

Original view was that all lepi representatives of a deceased plaintiff or dekndant must be substituted on the pain of the action abating.

With utmoit diligence, from a multitude some one may <*:ape notice and the consequent hardship in abatement of action led this Court to assert the principl]e that where some legal representatives are brought on record permitting an inference that the estate is adequately represented, the action would not abate though it would be the duty of tho other side to bring those legal representatives on record who are overlooked or missed even at a later date.

When the aforementioned two provisions speak of legal representatives it only 111eans that if after diligent and bona fide enquiry tho party liable to bring the legal representatives oa record ascertains who are the legal representatives of a decea'sed party and brio~ them on record within the time limited by 'law, there• is no abatement of the suit or appeal on the ound 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 o! those not brought on record.

This view has been consistently adopted by this Court in Daya Ram & Ors. v. Shyam Sundari(') N. lC. Mohammad Sulaiman v. N. C. Mohammad Ismail & Ors.;(2) and Harihar Prasad Singh & Ors. v. Balmiki Prasad Singh & Ors.(') 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 toput forth hio case, those likely to be affected by the decision on death of the deceased had the saime

opportunity to put forth their case and even if from a large number hning identical interest some are not brou!Jht on record those who are brought on record would adequately take care of their interest and the cause in the obsence of some such would not abate. In legal parlance this procedure affords an opportunity of being heard in all its ramification before a decision on the pending list is taken.

Another principle in this behal! which has found recognition of the Courts is that if the legal representatives of the decea5ed party are before the Court ia the same action even it in another capacity, failure to

(I) (1965] I SCR !31.

(2) [1966] I SCR ~37.

(3) (1975] 2 SC!t '32.

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~UPUM& COUIT llEPOllTS [1979] 3 s.c.R.

A - bring them on record iii. a specific legal ition would not result in

abatement of the action. In Mahabir Prasad v. Jag~ Ram & Ors.,( 1) this Court was caUed upon to consider whether where a legal representative of a deceased party is on record in another capacity, failure to implead him ~~ legal representative of the dece~ed party woul.fl result in abatement of the action ?

In that case Mahabir Prasad, his wife Saroj Devi and his mother Gunwanti Devi filed a suit against Jage Ram and-two others for recovering rent then due in the aggregate amount of Rs. 61,750/-.

The suit ended in a decree.

The execution of the decree was resisted by the defendants on the plea inter alid that the decree was ine.xecutable because of the provisions of Delhi Land Reforms Act, 1954.

This contention found favour with -the executing court and the application for execution was dismissed. Mahabir Prasad, one of the decree holders alone appealed against that order and impleaded Gunwati Devi and Saroj Devi as party respondents along wit'>. the original judgment-debtors.

Saroj Devi died in November 1962 and Mahabir Prasad applied that the name of Saroj Devi be "struck of from the array_pf respondents.

The High Court made an order granting the application "subject to all just exceptions".

Subsequently the

High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on record within the period of limitation, the appeal abated in its entirety. This Court, while setting a!ide the order made by the High Court holding that the appeal abated, observed as under :

"Even on the alternative ground that Mahabir Prasad being one of the heirs of Saroj Devi there can be no abatement merely because no formal application for showing Mahabir Prasad

as an heir and legal representative of Saroj Devi was made.

Where in a proceeding a party dies and one cf the legal representatives i! 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 isl made within the period of limitation prescribed by the Limitation Act the proceeding will not abate".

The principle deducible from this decision of the Court i's that where one of the legal representatives of the deceased party is before the Court at tl\e time when the proceeding is heard but in another capacity, it i• immaterial whether he i• described as such or not and even if there are other legal representative!, the cause will not abate.

(I) 11971) 3 SCR 301.

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JAYARAMA REDDY V REVENUE OFFICER (Desai, !.) 617

'\ow, 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 dissa1isfied that pariy 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 the appeal is served on the o'her side the respondent receiving the notice may prefer cross-objections under Order 41, Rule 22, but what is important to note is that such respondent though he may not have appealed from any part of the decree, may take any cross-objections to the decree which he could have taken by way of appeal. In other words, the respondent could have as well filed an appeal against that part of the decree by which he is dissatisfied but if he has not filed an appeal he can as well put forth cross-objections as contemplated by Order 41, rule 22.

Parameters of cross-objections by the language of OrJ"1 . .\J, rule 22, are limited to the contentions which could appropriately be taken in an appeal against a decree or a part of a deqee. For all practi.:al purposes cross-objections and cross-appeals have the same purpose to achieve and cover the same ground. Would they stand on a different footing in respect of death of a party either in cross-appeals or in cross-objections ?

There is a conflict of judicial opinion on the effect of substitution of

leg~! representatives of a deceased party in cross-objections and in crossappeals.

MuUa has noted this cleavage of opinion in his Code of Civil Procedure, 13th Edition, Volume II, P. 1237, as under:

"Where both the parties to a suit file independent appeals against the decree passed therein, and one of them dies pending the appeal, the substitution of his legal represen tatives in one appeal does not enure for the benefit of the other appeal which consequently abates.

But where one party to a suit prefers an appeal against the decree passed therein and the other files a memorandum of crpss-objections under 0. 41, r. 22, what is the effect of the legal representatives of a deceased party to the proceedings being substituted in the memorandum of cross-objections, and not in the appeal ? There is a conflict of judicial opinion on this question.

Where the respondent died and his legal representative was brought on record on his own application in the cross-objections and the appeUant had not applied to

brin~ him on record, it was held that the substitution of the legal representative in the cross-objection enured for the benefit of the appeal also as both the appeal and the crossappeal (sic) were part of tho same proceedins. And where

618 SUPl\l!MI! COUl\T l\l!POR.TS [197~] 3 s.c.I\.

A the appellant died, and hi~ legal representatives were brought on record in the cross-objection but not in the appeal, it

'll'a8 held thst the substitution in the cross-appeal (sic) did not enure for the benefit of the appeal and that the latter abated".

B Decisions on whlch the commentary is based may now be examinc

ed in depth to sort out principle, if any, to which the cleavage or opinion is referable.

In a very early decision in Brij lndar Singh v. Lala Kanshi Ram & Ors.,( 1) the Judicial Committee held that s:ibstitution 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 a11d 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 on• 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. Whil• a!lirming the ratio of this decision this Court in Rangubai Kom Shankar Jagtap v. Sunderabai Bharatar Sakharanz ledhe & Ors.,( 2 }

analysed !)1e principle underlying Order 22, rules 3, 4 and 11 as under :

"Let us now consider the question on prin.ciple.

A combined reading of Order XXII, rr. 3, 4 and 11, ot the Code of Civil Procedure shows that the doctrine of abatement >applies equally to a suit M well as to an appeal.

In the application of the said rr. 3 and 4 to an appeal instead of

"plaintiff'' and "defendant", "appellant" and "respondent" have to be read in those rules.

Prima facie, therefore, if a F respondem dies and his legal representatives are not brought on record within the prescribed time, the appeal abates as against the respondent under r. 4, read with r. 11, of 0.

XXII of the Code ot Civil Procedure.

But there is another principle recognised by the Judicial Committee in the aforesaid decision which softens the rigour of this rule.

The said G principle is that if the legal representativ~ are brought on record within the prescribed time at one stage of the suit, it will ennre for the benefit of all the subsequent stages of the suit.

The application of this principle to different situations will help to answer the problem presented in the present case. (1) A filed a suit agaimt B for the recovery of posses- H sion and mesne profits.

After the issue~ were framed, B

(1) AIR 19171PC 156.

(2) [1965! 3 S.C.R. 211 at 216-217.

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JAYAMMA llEDDY v. REVENUE OFFICER (Desai, J.) 61 g

died.

At the stage of an interlocutory application for production of documents, the legal representatives o! B were brought on record within the time prCicribed.

The order bringinc them on record would enure for the benefit of the entire uit.

(2) The suit was decreed and an appeal was filed in the High Court and was pending: therein.

The defendant died and his legal representatives were brought on record.

The suit was subsequently remanded to the 11rial Court.

The order bringing the legal representatives on record in the appeal would enure for the further stages ol the suit.

(3) An appeal was filed against an interlocutory order made in a suit.

Pending the appeal the delendant died and his legal representatives were brought on record.

The appeal was dismissed.

The appeal being a continuation or a sl'age of the suit, the order bringing the legal representatives on record would enure for the subsequent stages of the suit.

This would be so whether in the appeal the trial Court's order was confirmed, modified or reversed.

In the above 3 illustrations one fact is common, •amely, the order bringing on record the legal representalives was made at one stage of the rnit, be it in the suit or in an appeal against the interlocutory 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 ol an appeal. An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward

lith the subsequent stages of the suit or appeals taken therefrom; hut 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 tlie benefit of the appeal filed against the preliminary decree.

We, therefore, hold that the appeal abated so fur as the 7th respondent was concerned."

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In Sankaranaraina Saralaya v. Laxmi Hengsu & Ors.,(') two independent appeals were filed against the decree of the trial court in the suit, one appeal being by the plaintiff and the other appeal by defendant 2.

In the appeal filed by defendant 2 the legal representatives of the respondent, viz., the plaintiff not having been brought on record within the time prescribed by law, the appeal abated, and when that abatement was sought to be set aside, the Court found that there was no ground for allowing the application. It was then contended that because the legal representatives of the appellant in other appeal (who was undoubtedly the plaintiff in the suit) have been added within the time allowed, it should be taken that those legal representatives have also been added in place of the deceased respondent by defendant 2.

Negativing this contention a learned single Judge of the Madras High Court held that there is no interdependence between the two appeals and the analogy of an appeal and a memorandum of cross-objection in the same appeal does not hold good in case of two independent appeals where the Conrt has to deal with two separate and independent appeals though arising from the same suit and the parties adopt rival positions.

The Court distinguished the decision in Brij lndar Singh's case (supra,) by posing a question to itself : 'Can it be said in the present case that what was done in one appeal could ennre for the benefit of another appeal unless the latter appeal can be deemed to be a continuation or a further stage of the appeal in which the legal representatives were brought on record' and answered it in the negative oliserving that it is not possible to extend the principle laid down by J udici•al Committee in Brij lndar Singh's case (supra) In Dasondha Singh v.

Shadi Ram Sardha Ram & Ors.(') there were cross appeals arising from the same decree before the Court and the plaintiff Shadi Ram was an appellant in the appeal preferred by him and when he died his legal representatives were impleaded within the prescribed time.

In the appeal preferred by the defendant the application for impleading Shadi Ram's legal representatives which was made beyond the prescribed period of limitation and the Court having declined to condone the delay, the appeal abated. It was contended that as the legal representatives of Shadi Ram were impleaded in his appeal and as both these appeals arose out of the same 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 wonld not abate.

The Court negatived Jhe argument relying upon a Division Bench decision in Punjab State v. Atma Singh.(•). -n1 Alll-i931 Mad. 277

(2) AIR 1964 Punjab 336

(3) A.LR. 1963 Punj. 113.

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JAYARAMA REDDY v. REVENUE OFFICER (Desai, J.)

62 I

In State of Rajasthan & Ors. v.

Raghuraj Singh,(') two crossappeals 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 ciefendant'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 the defendant's appeal has abated.

The Court examined two separate limbs of the submission : ( 1) what is the eITect of ubstitution of de- ~. .. ceased party's legal representatives in cross-objections though no l:~, such substitution was made in the main appeal; and (2) would the '-'~"effect be different if instead of cross-objections there were cross-

, appeals.

A Division Bench of the Rajasthan High Court held tha.t cross-objections being part of the same proceedings and form pmt of the same record, substitution of legal representatives in the crossobjections would enure for the benefit of the main appeal.

But in the case of cross-appeals, after referring to Sankaranaraina Saralaya's case, (supra) the High Court held that substitution of legal representati<es of a deceased party in one appeal cannot enure for the benefit of the cro:; s-appeal and, therefore, defendant's appeal was held to have abated.

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An analysis of the aforementioned decisions in search of a common thread or a deducible principle has not proved helpful.

The following conclusions emerge from these decisions : (!) If all legal representatives are not impleaded after diligent search and some are brought on record and if the Court is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the Court, an action would not abate.

(2) If the legal representative is on record in a different capacity, the failure to describe him also in his other capacity as legal representative of the deceased party would not abate the proceeding.

(3) If an appeal and cross-objections in the appeal arising from a decree arc eforc the appellate court and the respondent dies, substitution of his legal representatives in the cross.-objctions being part of the same record, would enure for the benefit of the appe•al and the failure of the appellant to implead the legal representatives of the

(I) AIR 1968 Raj. 14.

A deceased respondent would not have the effect of abating the appeal but not vice versa.

. ( 4) A .substitution of legal representatives of the deceased party m an appeal or revision even against an interlocutory order would

nure for the subsequent stages of the suit on the footing that appeal _ 1s a continuation, of a suit and introduction of a party at one stage of B a suit. would enure for all subsequent stages of the suit.

(5) In -cross-appeals arising from the same decree where parties to a suit adopt rival positions, on the death of a party if his legal re-- presentatives -are impkaded in one appeal it will not enure for the benefit of cross-appeal and the same would abate.

Is it possible to ratiocinate these decisions? Appmcntly 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-objections and cross-appeal defies ratiocination. Cross-appeal and cross-objections provide two different remedies for the same purpose and that is why under Order 41, rule 22, cross-objections can be preferred in respect of such points on which that party could have preferred an

ppeal. If such be the pcsition of cross-objections and cross-appeal . a differentiation in the matter of their treatment under rules 3 and 4 cannot be justified merely on the ground that in case of cross-objections-they form part of the same record while cross-appeals are two independent proceedings.

Now, if the discernible principle underlying rules 3 and 4 of Order 22 is that the legal representatives of the deceased .likely to be affected . one way or the other by the decision in appeal must be before the Court and must be heard before a decision affecting their interests is recorded it would stand fully vindicated when in cross-appeals a p'arly occupying the positi.on of an appellant in one appeal and respcndent in the - other appeal dies and his legal representatives are brought on record in the appeal in which he i! the appellant and not in the other appeal wherein he is a respondent because the subject-matter of both the

JAYARAMAltECCY V. REVl!NUE OFFICER 623

11ppeals being the deaee under attack, they have an opportunity to

'upport the decree in their favour and question the correctness of the .tiecree adverse to them.

Even if they were brought on record as l•gal representatives of the deceased in his capacity as respondent in liloe cross-appeal, they could not have further advanced their case nor , oould they have done anything more than what they would do in their

Oi.pacity as legal representatives of the deceased appellant unless they were precluded from contendint that they being not on record cannot rnpport or controvert the decree.

They have thus the fullest opportunity of putting forth their grievance against and in support of the liecree.

Their position was not the least likely to be affected one way or the other even if they were not formally impleaded as !eta! representatives of the decrnsed in hi' capacity as respondent.

To say that cro•s-appeals are independent of each other is to overlook the ebvious position which parties adopt in cross-appeals.

Interdepentlence of cross-appeals is the same •s interdependence of appeal and "oss-objections because as in the case of appeal and cross-objections a decision with regard to appeal would directly impinge upon the decioion in cross-objections and _vice v"sa.

Indu_bita]:i)y the decision in one of the cross-appeals would directly impinge upon the decision in tlte other because both nltimately ari•e from the same decree.

This k really the interdependence of cro"-appeals and it is impossible to distinguish cross-appeals from appeal and cross-objections.

Unfortuutely this interdependence was overlooked by the Madras High Court when the scope of cross-appeals arisin: from the same decree and appeal and cross-objections in respect of the iame decree were not examined in depth in Sankaranaraina Sara/aya'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 dceased party in another capacity. Sham of embellishment, when legal representatives of a

deceased appellant are substituted and those very legal representatives as legal representatives ot the same person occupying the position of respondent in cross-appeal are not 'ubstituted, the indisputable outcome would be that they were on record in the connected proceeding

before the same Court hearing both the matters, in one capacity though they were not described as such in their other capacity, namely, as le¢ representatives of the deceased reapondent.

To ignore this obvious position woud he giving undue importance to torrn rather than substance. The anxiety of the Court should be whether those likely to be 1tffected by the decision in the proceedint; were before the Court having 'full opportunity to canvass tlteir case.

Once that is satisfied it can be

safely said that the provisions contained in rules 3 and 4 of Order 22 are satisfied in a given case.

To take another view would be to give an opportunity to the legal representatives of a deceased party in an appeal having had the fullest opportunity to canvass their case through the advocate of their choice appearing in cross-appeals for them and having canvassed their case and lost, to turn round and contend that they were not before the Court as legal representatives of the same person in his other capacity, namely, respondent in the crossappeal.

In other words, those legal representatives were before the Comt all throughout the hearing of the appeal as parties to the appeal and canvassed their ca>e and were heard through their advocate and they had the fuli opportunity to put forth whatever contc1ttions w. re open to them in the appeals and to contest the contentions advanced against them by the opposite side and yet if the other view is taken that as they were not formally impleaded as legal representatives of the deceased respondent in the cross-appeal that appeal has abated, it would be wholly unjust.

It is very ditlicult to distinguish on principle the approach of the Court in appeals and cross-objections and in crossappeals in this behalf.

No principle of law can distinguish thisdevigational approach.

The cases which have taken the view that in cross-appeals the position is different than the one in appeal and crossobjeetions do not proceed on any discernible legal principle.

Nor can they be explained by any demonstrable legal principle but in fact they run counter to the established legal principle.

In the present case the legal representatives of deceased Y. Prabrakar Reddy were brought on record in the claimants' appeal. Through their advocate they were contending before the High Court that not only the compensation should be enhanced but in reply to the submissions of the counsel for the State in their appeal they contended that no case was made out for reducing the compensation.

Both the appeals were heard together and not one after the other.

Therefore, the legal representatives of the deceased Y. Prakhakar Reddy were all throughout before the Court, of course in one capacity, viz., as legal representatives of deceased appellant, but not so described as legal representatives of the deceased respondent.

That cannot make any difference.

Therefore, the appeal has not abated.

On merits, I agree with my learned brother Shinghal, J. that the compensation as awarded by the High Court represents the market value of the land on the date of the Notification under s. 4 of the Land Acquisition Act and no case is made out for interfering with the same.

Accordingly, I agree with the final order that the appeal be dismissed with no order as to costs.

P.B.R.

Appeal dismissed.

M GIPF-253 SCI/79-16-11-79-2,500

I ..

JAYARAMA REDDY & ANR

REVENUE DIVISIONAL OFFICER & LAND ACQUISITION OFFICER,KURNOOL

March 23, 1979

D. A. DESAI, JJ.

Code of Civil Procedure

Order XXII Rule

CPC

Shinghal

Desai

CPC

the Code of Civil Procedure

[1965] 1 SCR 231

[1966] 1 SCR 937

[1975] 2 SCR 932

[1971] 3 SCR 301

CPC

[1965] 3 SCR 211

VIL APPELLATE JURISDICTION

A. K. Sen

A. Subba Rao

T. V. S. N. Chari

c

T. V. S. N. Chari for the Respondent.

SHINGHAL

High Court of Andhra Pradesh

February 4, 1969

Kurnool town

May 25,

1962

N. Jayarama Reddy

Y. Prabhakar

C. Manikya Reddy

section 18

Knrnool

December 7, 1963

April 3, 1964

Y. Prabhakar Reddy

July 14, 1964

Y. Prahhakar Reddy

Y. Prabhakar Reddy

Sen

Prasad Gupta

[1962] 2 S.C.R. 636

Nathu Ram

C.P.C

section 18

July 30,

1963

April 3,

1964

C. Padmanabha Reddy

Y. Prabhaka_r Reddy

section 104

order 45 rules 2

C.P.C

Y.

Prabhakar Reddy

section 86

C.P.C

P. Dasa Muni ReaiJy

C.P.C

A.I.R. 1968 Rajasthan

JAYARAMA REDDY

Kurnool

Andhra Pradesh

October 30, 1961

DESAI

Y.

Prabhakar Reddy

February 4,. 1969

Article 133

A. K. Sen

Prabhakar Reddy

bhakar Reddy

ing the appeal, not only the Govermnent appeal abated against Y. Pra  , \.' bhakar Reddy but in view of the decision of this Court in State of Punjab \

v. Nathu Ram,(') the appeal abated as a whole and, therefore, the judgment of the High Court partly allowing the Government appeal- -' ,.

State of Punjab

Nathuram

Y. Prabhakar Reddy

Y. Parbhakar Reddy

Order 22, Rule 4

the Code of Civil Procedure

order 22, rules 3

order 22, rule 11

Order 22, rules 3

order 22, rules 3

Mahabir Prasad

Saroj Devi

Gunwanti Devi

Jage Ram

Delhi Land Reforms Act, 1954

Gunwati Devi

Limitation Act

1971) 3 SCR 301

Order 41, Rule 22

Order 41, rule 22

MuUa

Code of Civil Procedure

Order 22, rules 3

the Code of Civil Procedure

Madras High Court

Brij lndar Singh

Shadi Ram

Shadi Ram

Rajasthan High Court

Sankaranaraina Saralaya

Order 22, rules 3

Order 41, rule 22

Sankaranaraina Sara

Y. Prabrakar Reddy

Y. Prakhakar Reddy

s. 4


MUNICIPAL CORPORATION OF DELHI v.

R. SAHARI, GENL.MANAGER, DAURALA

SUGAR MILLS, DAURALA & ORS ETC.

March 23, 1979 [S. MURTAZA FAZAL Au AND A. D. KosHAL, JJ.]

Prevention of Food Adulteration Act-Sections 20 & 20-A-Scope of

Toffees sold by a vendor to a Focxl Inspector having been found to b_e adulterated, prosecution was launched against him. The vendor produced a warranty in the Trial Court as a result of which he was acquitted by the 11agistrate.

Th~ Magistrate however directed notice to the respondents under

section 20-A for being impleaded and prosecuted on the grounds that the articles C manufactured and distributed by them were adulterated.

On revision, the Session Judge dismissed the same but on further revision to the High Court, it allowed the revision and set aside the order of the Magistrate.

In the other two Criminal Appeals Nos. 166 & 167 of 1972, the appellants were i.mpleaded under section 20A before the acquittal of the last seller and that Order was upheld by the High Court. On the question whether the magistrate was entitled to implead the distributors or manufacturers under s. 20A even after acquitting the seller on the ground that he was protected by n warranty.

Disn1i.ssing the appeals

HELD : 1be opening lines of section 20A clearly contemplate a contingency where the discretionary jurisdiction under this Act can be exercised only during the trial 1Jf any offence, i.e. the stage at which the magistrate can exercise his jurisdiction under this section must be before the trial has concluded and ended in acquittal or conviction.

A combined reading of section 20A and 20 is that where a distributor or manufacturer or any other person is implee.ded in the course of a trial, the obligation to get a fresh sanction for such a person

is dispensed with and the sanction obtained for the last seller in the trial, will -ensure for the benefit of the prosecution of the other person impl'eaded. There

fore protectiC'n of section 20 is not available if the parties conCemed are im~ plead'ed aftr the trial was over.

The special statutory concessioo is given to the prosecution only if the conditions mentioned in s. 20A are fulfilled and not otherwise.

[627B-C, F-HJ

V. N. Kamdar v. Municipal Corporation of Delhi [1974]

S.C.R. 157 followed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 152- 153 of 1972.

From the Judgment and Order dated 28-10-1970 of Delhi High Court in Criminal Revision Nos. 426/68 and 5/70.

AND

CRIMINAL APPEAL NOS. 166-167 OF 1972

From the Judglitent and Order dated 28-10-1970 of Delhi High Court in Criminal Revision Nos. 72-73/68.

Soli J. Sorabji, Addi. Sol. Genl. of India, B. P. Maheshwari and Suresh Sethi for the Appellant in Cr!. A. Nos. 152-153/72.

V. M. Tarkunde, S. C. Malik and B. R. Agarwal<i for RR 4 in Cr!.

A. 152/72.

B H. K. Pun for RR. 3 in Cr!. A.153 /72.

Mrs. Urmila Sirur for RR. 3 in Cr!. A. No. 152/72.

B. K. Jaggi for the Appellant in Crl. A. No. 166-167/72.

H. S. Marwah and M. N. Shroff for RR. in Cr!. A. Nos. 166-167 / 72.

C B. P. Maheshwari and Suresh Sethi for the Intervener.

The Judgment of the Court was delivered by

F AZAL Au, J.

These appeals by certificate arise out of a common Judgment delivered by the High Court of Delhi and will be disposed of by ns by one judgment. In Appeals Nos. 152-153/72, one Gian Singh sold toffees to the Food Inspector and as the toffees were found to be adulterated, a prosecution was launched against him under S. 7 /16 of the Prevention of Food Adulteration AC!. Gian Singh, however, productd in course of the trial a warranty given by the distributons and manufacturers as a result of which the Magistrate acquitted accused Gian Singh. After having acquitted Gian Singh, t!Je Magistrate issned notice under S. 20A against the Respondents for being iropleaded and prosecution on the gound that the articles manufactured by the distributors were adulterated. The respondents went up in revision to the Sessions Judge which was dismissed. But on further revision to the High Court the High Court allowed the petition and set aside the order of the Magistrate impleading the respondei; its.

In the other two appeals i.e. Cr!. Appeals Nos. 166 and 167/1972, the manufadurers were impleaded under S. 20A before the acquittal' of the last sller and that order was upheld by the High Court and, hence these appeals before us by the appellants.

The common question of law that arises for consideration in all these appeals is : whether or not the Mag:strate is entitled to implead the distributors or manufacturers under S. 20A even after acquitting the last seller on the gronnd that he is protected by a warranty. In other words, the question for decision in these appeals turns upon the interpretation of S. 20A and S. 20 of the Prevention of Food Adulteration Act. S. ~OA runs thus :-

"Where at any time during the trial of any offence under this Act, alleged to have been committed by any person, nut

,..

MUNICIPAL CORPORATION V. DAURALA SUGAR MILLS 627 (Fazal Ali, J.) being the manufacturer, distributor or dealer of any of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with the offence, then the Court may, notwithstanding anything contained in sub-section(l) of S. 351 of the Code of Criminal Procedure, 1898, or in Section 20 proceed against him as though a prosecution had been instituted against him under S. 20".

The opening lines of S. 20A clearly contemplate a contingency where the discretionary jurisdiction under this Act can be exercised only during the trial of any offence, that is to say, the stage at which the Magistrate can exercise his discretion under this Section must be before the trial has concluded and ended in acquittal or conviction.

S. 20 which precedes S. 20-A runs thus :-

"S. 20 ( 1) No prosecution for an offence under this Act, not bemg an offence under S. 14 or section 14A, shall be instituted except by or with written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government;

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in section 12, if he produces in court a copy of the report of the public analyst alongwith the complaint.

(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act. \

(3) Notwithstanding anything contained in the Code o[ Criminal Procedure, 1973, an offence punishable under subsection (IAA) of Section 16 shall be cognizable and nonbailable''.

A combined reading of S. 20A and S. 20 is that where a distributor or manufacturer or any other person is impleaded in the course of a trial, the obligation to get a fresh sanction for such person is dispensed with and the sanction obtained for the last seller in the trial will ensure for the benefit of the prosecution of the other person iropleaded also and no further sanction is necessary. It is manifest that this special statutory concession is given to the prosecution only if the conditions mentioned in S. 20A are fulfilled and not otherwise.

In other words, the protection of S. 20 is not available to the proscution if the parties concerned are impleaded after the trial is over. [n such a cnse, a fresh trial will have to be started by obtaining sanction under

S. 20. This matter is no longer .res integra as it has been fully considered by this Court in V. N. Kamdar v. Municipal Corporation, Delhi(') where this Court observed as follows :-

" .... In order that the manufacturer, distributor or dealer may be impleaded under S. 20A, it is necessary that there should be a trial for an offence committed under :he Act by a person and that the manufacturer, distributor or dealer must be concerned in the offence. When once the manufacturer, distributor or dealer is impleaded, the mal proceeds as if he is also an accused in the case. That is made clear by the closing words of the setcion. As already indicated, no prosecution for an offence under the Act can be instituted by a Food Inspector without the sanction specified in S. 20 .... The real purpose of enacting S. 20A is to avoid. as far as possible, conflicting findings. If, in the prosecution instituted against the vendor, it is found that the vendor has sold the article of food in the same state as he purchased it and that while it was in his possession it was properly stored, and the vendor is acquitted, it would look rather ridiculous if in the prosecution against the manufacturer, distributor or dealer, it is found on the evidence _that he did not give a false warranty, but that the article was not stored properly while it was in the possession of the vendor or that h~ did not sell the article in the same stage as he purchaed it.

This being so, the object of the legislature in enacting the section will be frustrated if a Magistrate were to exercise his discretion improperly by failing to implead the manufacturer, distributor or dealer under S. 20A in a case where he should be impleaded. But that is no reason to hold that a separate prosecution against the manufacturer, distributor or dealer would be barred, if he is not impleaded under s. 20A, and tried along with the person who is alleged to have committed an offence under the Act. In order to avoid multiplicity of proceedings and conflict of findings, it is imperative that the Magistrate should implead these persons under S. 20A whenever the conditions laid down in the section are satisfied. As I said, it is a far cry from this to say that if this is not done, the manufacturer, distributor or dealer would get an immunity from a separate prosecution."

H For these reasons, therefore, and in the facts and circumstances of the case so far asCr. Appeals No. 152-153/1972 are concerned, the

(1) [1974] I S.C.R. 157.

, '

•~ .. ' + . •

.~ •

~ . - ~

MUNICIPAL CORPORATION V. DAURALA SUGAR MILLS 629 (Fazal Ali, J.) Magistrate had no jurisdiction to implead the respondents after havill.g concluded the trial by the acquittal of the last seller. Similarly, the Magistrate was fully justified in CrJ. Appeals No. 166 and 167 /72 in impleading the appellants during the course of the trial as the trial was still continuing and the case would, therefore, squarely fall under S. 20A of the Act and no further sanction would be necessary. For these reasons, therefore, all the appeals are dismissed.

N.K.A.

Appeals dismissed.

MUNICIPAL CORPORATION OF DELHI

R. SAHARI,GENL.MANAGER, DAURALA SUGAR MILLS, DAURALA & ORS ETC

March 23, 1979

A. D. KosHAL, JJ.

Prevention of Food Adulteration Act

Sections 20 & 20

section 20

section 20A

s. 20A

section 20A

section 20A and 20

section 20

s. 20A

Soli J. Sorabji

B. P. Maheshwari

Suresh Sethi

V. M. Tarkunde

S. C. Malik

B. R. Agarwal

B H. K. Pun

Urmila Sirur

B. K. Jaggi

H. S. Marwah

M. N. Shroff

C B. P. Maheshwari

F AZAL Au

Gian Singh

S. 7

S. 20A

S. 20A

S. 20A

S. 20A

S. 20

Fazal Ali

S. 351

Code of Criminal Procedure, 1898

Section 20

S. 20

S. 20A

S. 20

S. 20

S. 20

S. 14

section 14A

Central Government

section 12

Section 16

S. 20A

S. 20

S. 20A

S. 20

S. 20

S. 20A

S. 20

S. 20A

S. 20A

s. 20A

S. 20A

S. 20A