Supreme Court of India
S. AMARJIT SINGH KALRA (DEAD) BY LRS. AND ORS.versusSMT. PRAMOD GUPTA (DEAD) BY LRS. AND ORS.
- Citation
- 2002 INSC 541
- Decided
- 17 December 2002
- Disposal
- Appeal(s) allowed
- Bench
- G B PATTANAIK
Holding
A decree involving claimants with distinct, independent rights is a combination of several decrees, so the abatement of some parties does not abate the whole appeal.
Summary
The Supreme Court examined appeals arising from a land acquisition award where 63 proprietors and other parties sought compensation for distinct shares of land. During the pendency of the appeals, five appellants died and their legal representatives were not brought on record, leading the Delhi High Court to dismiss all the appeals in toto on the ground of abatement under Order 22 CPC. The Court held that where each claimant has separate, independent rights, the decree is a combination of several decrees rather than a joint inseverable decree; therefore, the death of some parties does not abate the entire appeal. Consequently, the High Court’s dismissal was set aside, the applications for substitution and condonation of delay were allowed, and the appeals were remitted to the High Court for fresh adjudication on merits. The judgment emphasized a liberal, justice‑oriented interpretation of procedural rules and rejected a rigid application of abatement that would deny substantive rights of surviving parties.
Issues considered
- The death of some appellants and whether it causes abatement of the entire appeal under Order 22 CPC.
- Whether the decree passed in the land acquisition compensation proceedings is a joint and inseverable decree or a combination of several severable decrees.
- Whether the High Court correctly dismissed the appeals in toto.
- Whether applications for substitution of legal representatives and condonation of delay should be entertained.
Legislation cited
- Code of Civil Procedure, 1908s. Order 22 Rule 3, s. Order 22 Rule 4, s. Order 22 Rule 9, s. Section 141
- Land Acquisition Act, 1894s. 11, s. 18, s. 30, s. 31, s. 4, s. 6
Subjects
Order 22 CPCabatementjoint decreeseverable decreeland acquisitioncompensationmultiple claimantsprocedural lawcivil appealdecree consistencylegal representativessubstitutioncondonation of delay
Judgment
A S. AMARJIT SINGH KALRA (DEAD) BY LRS. AND ORS.
V.
SMT. PRAMOD GUPTA (DEAD) BY LRS. AND ORS.
DECEMBER I 7, 2002
B [G.B. PATTANAIK, CJ., M.B. SHAH, DORAISWAMY RAJU,
S.N. VARIAVA AND D.M. DHARMADHIKARI, JJ.]
Code ofCivil Procedure, 1908-0rder 22-Death ofsome of the several
C claimants in a joint appeal against a decree-Dismissal of the appeal in toto
even in respect of surviving appellants on the ground of abatement-Held,
whenever p{aintiffs/appellantslpetitioners found to have distinct, separate and
independent rights of their own and for purpose of convenience or otherwise
joined together in a single litigation, decree passed thereon would not be
inseparable, but in substance is a mere combination of several decrees-In
D order to determine as to whether a decree is joint and inseverable or it is joint
and severable for the purpose of abatement or dismissal of the entire appeal
as not properly constituted or rendered incompetent for further proceeding, it
is to be seen whether the decree vis-a-vis the remaining parties would suffer
the vice of contradictory or inconsistent decrees-A decree can be said to be
E contradictory or inconsistent with another decree only when the two decrees
are incapable ofenforcement or are mutually selfdestructive or the enforcement
of one would negate the enforcement ofanother-land Acquisition Act, 1894-
Sections 4,6,11,18,30 and 31.
law of Procedure:
F
Purpose of-Field, such laws are meant to regulate effectively, assist
and aid the object of doing substantial and real justice and not to foreclose
an adjudication even on merits of substantial rights-Provisions contained in
Order 22 C.P.C not to be construed as a rigid matter of principle, but as a
G flexible tool of convenience in the administration of justice-Code of Civil
Procedure, 1908-0rder 22.
In land acquisition proceedings, there arose disputes regarding the
claims for compensation among the claimants i.e. proprietors, respondent
No. 27-Bhumidhar, Gaon Sabha and Union of India. Though claims made
H by claimants were for their respective shares, Land Acquisition Collector,·
350
S. AMARJIT SINGH KALRA v. PRAMOD GUPTA 351
granted lump sum compensation, and made reference under Sections 30 A
and 31(2) of Land Acquisition Act, 1894 to the Court of District Judge
for apportionment of the compensation in view of the disputed nature of
competing claims.
District Judge awarded the compensation to the bhumidhar and
transferors from her to the exclusion of the proprietors, Gaon Sabha and B
Union of India. Against the award, 63 proprietors jointly filed one appeal
and IO proprietors filed another appeal before High Court. However 37
of the claimants did not file any appeal and they were also not made party
in the appeals of other claimants. During pendency of the appeals, five of
the 63 appellants died. High Court dismissed the appeal filed by 63 C
claimants including 58 surviving claimants, in toto as having abated and
the appeal filed by IO claimants were dismissed holding that they were
not properly constituted and incompetent for the reason that connected
appeals having abated, other appeals involving questions of fact and law
could not be proceeded with, resulting in conflicting, inconsistent and
contradictory decrees. Applications filed by legal representatives of the D
deceased for bringing them on record were also dismissed as barred by
limitation.
In appeal to this Court, appellants contended that dismissal of all
the appeals in toto, merely because 5 of the appellants died, was not
justified because even in absence of those legal representatives the claims E
of other 58 appellants survived since each one of them was seeking relief
on the basis of his own independent cause of action.
Respondents contended that dismissal of all the appeals in toto was
justified since the disputes centered around one lump sum compensation F
in respect of undivided and common land and since the litigation was on
the same nature of title, the decree passed would be joint and indivisible.
Allowing the appeals and remitting the case to High Court for
disposal, this Court
G
HELD: 1.1. 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 H
352 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A same would be the position in the case of defendants or respondents having
similar rights contesting the claims against them. (384-F-GI
1.2. Whenever different and distinct claims of more than one are
sought to be vindicated in one single proceeding, under the Land
Acquisition Act or in similar nature of proceedings and/or claims in
B 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. (384-G-H; 385-A, BJ
c 1.3. 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 onP.
D (385-8-C(
1.4. The Award/decrees, which were the subject-matter of challenge
before the High Court, in these cases, were not joint and inseparable decree
but in substance a mere combination of several decrees depending upon
the number of claimants before the Court and, therefore, joint and several
E or separable vis-a-vis the individuals or their claims concerned.
Consequently, even the abatement of the appeal in the High Court in
respect of one or other of the appellants cannot by itself result in the
abatement of the appeal in its entirety or render it liable to be dismissed
as not duly or properly constituted or not possible to be proceeded with.
p (385-F-GI
2.1. 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 purpose of abatement or dismissal of the entire appeal as not being
properly and duly constituted or rendered incompetent for being further
G proceeded with, requires to be determined only with reference to the fact
as to whether the judgment/decree passed in the proceedings vis-a-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
H enforcement of one would negate or render impossible the enforcement
S. AMARJIT SINGH KALRA v. PRAM OD GUPTA 353
of the other. A
2.2. Having regard to the peculiar facts and circumstances that each
of the claimants-appellants have their own distinct, separate and
independent rights, the appeals even dehors the claims of the deceased and
others who have not chosen to approach the High Court or this Court,
were neither rendered incapable of consideration nor impossible of B
according any relief or could be held difficult to enforce the decree that
may be passed, in favour of the remaining appellants without suffering
the vice of incflnsistency. Even if it is likely to result in two different sets
of judgments of va·rying content, purport or reason, as long as the
enforcement of the decrees passed therein are not rendered impossible due C
to mutual contradiction in terms of self-destructive nature, there is no
justification whatsoever to assume them to be inconsistent or contradictory
decrees, at all. The mere fact that in a set of similar or identical nature of
cases two different nature or type of decrees was necessitated is no reason
to treat them to be inconsistent or contradictory decrees, so long as both
can be executed and enforced without either of them being destructive of D
the other. 1383-E-Hl
2.3. 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 E
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 F
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 procedural lapse or
action or inaction of one of the 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-a-vis the other part, which had become G
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 )us 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 H
354 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A to a fair, reasonable and proper administration of justice. (384-B-El
3.1. Laws of procedure are meant to regulate effectively, assist 2nd
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
B the handmaid of justice and not meant to hamper the cause of justice or
sanctify miscarriage of justice. The provisions contained in Order 22 CPC
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.
(376-F-Hj
C 3.2. The rejection by the High Court of the applications to set aside
abatement, condonation and bringing on record the legal representatives
does n,ot 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
D light of the fact that each one of the appellants had an independent und
distinct right of his own not inter-dependent 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
E 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. (377-C-EI
4. The fact that about 37 out of the total number of interested
persons, like the appellants, were not parties before the High Court or
F this Court, docs not, in any manner, affect or deprive the appellants to
have their claims, duly and properly considered and adjudicated in
accordance with law, on merits. 1376-EI
Ram Sarup v. Munshi and Ors., (1964 ( 3 SCR 858; The State of Punjab,
v. Nathu Ram, (19621 2 SCR 636 and Jhanda Singh v. Gurmukh Singh and
G Ors., distinguished.
Harihar Prasad Singh and Ors. v. Ba/miki Prasad Singh and Ors.,
(19751 2 SCR 932 and Indian Oxygen ltd. v. Ram Adhar Singh and Ors.,
(C.A. No. 1444/1966) decided by Supreme Court on 24.9.1966, relied on.
H Harihar Prasad Singh and Ors. v. Balmiki Prasad Sin1;!i and Ors.,
S.AMARJITSINGHKALRA v. PRAMODGUPTA[RA.IU, J.] 355
119751 2 SCR 932; Saquia Transport Service v. State Transport Appellate A
Tribunal, MP. Gwalior and Ors., 119871 I SCC 5; Renen Roy v. Prakash
Mitra, 119881 9 SCC 689; Kanakrathnamma/ v. VS. Loganatha Mudaliar
and Anr., 1196416 SCR 1; Jahar Roy (dead though lrs.) and Anr. v. Premji
Bhimji Mansata and Anr., 119781 I SCR 770 and Krishan Singh and Ors.
v. Nidhan Singh and Ors., ( C.A. No.563 of 1962) decided by Supreme B
Court on 14.12.64, referred to.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1027-
1028 of 1992.
From the Judgment and Order dated 26.2.1991 of the Delhi High C
Court in R.F.A. No. 309 and 310/80 and 356-357/80.
Dr. K.S. Siddhu, K. Parasaran, K. Rama Moorthy, R.T. Andyarujina,
LR. Gupta, Ms. Maldeep Siddhu, Brij Bhushan, V.B. Saharya, P.P. Juneja,
Devender Verma, Ms. Minakshi Vij, Ashok Mathur, Manish Vashisht,
Ms. Shobha Nagarajan, A.K. Srivastava, Ms. Pragati Nikhra, Arun Srivastava, D
R.S. Suri, A.C. Mishra and M. Sardana for the appearing parties.
The Judgment of the Court was delivered by
D. RAJU, J. Special leave granted in S.L.P. [C) Nos.11914-11915 of
1991.
E
On 14.8.2002, this Court allowed the applications filed in
C.A.Nos. l 029-1030 of 1992 and Civil Appeals arising out of S.L.P. (C)
Nos.11914-11915 of 1991 for substitution and condonation of delay in filing
the applications for substitution in respect of some of the respondents, who
died during the pendency of these appeals. In the light of the above, all other F
applications filed for substitution and condonation of delay of one or the
other parties in the above matters by the respective counsel for the appellants
are also allowed. After the hearing was completed and orders have been
reserved, it appears that the heirs of one Late Sultan Singh alias lshwar Singh
claiming to be interested in the compensation but admittedly was not a party
(the late Sultan Singh himself) either before the Reference Cou1t or the High G
Court, have filed applications to be impleaded as necessary parties. Since, the
predecessor-in-interest of the applicants was himself not a party at any stage
of the proceedings before the Courts below, we see no justification to entertain
their claim for coming on record at this stage of the proceedings. These
unnumbered applications filed by Col. Mohinder Singh Malik and three others H
•
356 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A are, therefore, rejected. Having regard to the orders passed already, and the
fact that the necessary legal representatives of all parties, who died during the
pendency of the matters in this Court, have come on record, the benefit of
the same will enure to the appellants in C.A.Nos. l 027-1028 of 1992. The fact
that the applications filed therein, earlier were not pressed and disposed of as
B such, will not come in the way of those appeals also being heard on merits
and disposed of in accordance with law, along with the other appeals.
An extent of about 5500 bighas of land described as 'gair mumkin
Pahar' (uncultivable mountainous area) situated at Masudpur Village within
the Union Territory of Delhi was acquired by the Government for planned
C development of Delhi. Notifications were issued (I) on 24.10.1961 for
acquisition of 720 bighas and 4 biswas out of 4307 bighas and 18 biswas
under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as
the 'Act'). It may be stated at this stage itself that an e>.1ent of 390 bighas
of land notified on 24. l 0.1961 ana acquired by passing the award in Award
No.1944 does not form the subject matter of these proceedings. Declarations
D under Section 6 of the Act were issued on 6.8.1966. In the courst; of the
Award enquiry claims were filed before the Land Acquisition Collector by
three categories of claimants as hereunder: -
(i) Claims by the Union of India and Gaon Sabha that the lands
acquired stood vested with the Gaon Sabha they being 'waste
E land' under Section 7 of the Delhi Land Reforms Act, 1954. This
claim proceeded on the basis that not only it was 'waste land'
but also the Bhumidari Certificate issued in favour of Smt. Guiab
Sundari was invalid and nones! in law.
(ii) The other class of claims were from the Proprietors/Co-owners,
F on the basis that the acquired land was not 'land' as defined
under Section 3( 13) of the Delhi Land Reforms Act, since they
were being used for non-agricultural purposes and therefore, they
neither could be said to be 'waste land' nor could be held to
have vested in the Gaon Sabha, for either of them to claim any
title to the lands in question and, therefore, they continued to be
G
proprietors of the soil and as such entitled to the compensation
for themselves; and
(iii) Yet another claim was from Smt. Guiab Sundari and her
transferees of portions of the rights over the land on the ground
that she was the Bhumidar of the land measuring about 4307
H
S. AMARJIT SINGH KALRA v. PRAMOD GUPTA [RAJU, J.] 357
bighas and 18 biswas and those lands were part Qf her Bhumidari A
holding out which she also claimed to have transferred rights in
an extent of 3500 bighas of undivided holding in favour of the
other private respondents/claimants.
By another Notification dated 23 .1.1965 under Section 4 of the Act, an
extent of 3224 bighas and 24 biswas out of the total extent of 4307 bighas B
and 18 biswas was notified for acquisition, followed by the issue of a
Declaration under Section 6. Jn respect of these acquired lands also, the
above three categories of claims came to be made. It may also be stated that
the individual claims made by persons other than the Union of India and
Gaon Sabha were in respect of specified shares, though over the total extent C
involved.
Award No.2040 dated 1.12.1967 came to be passed in respect of lands
covered by the Notification dated 24.10.1961 measuring about 720 bighas
and 4 biswas. Since competing claims, though in respect of only their respective
shares were made by them to the exclusion of others as far as their shares are D
concerned, the Land Acquisition Collector while awarding a compensation of
Rs.5,79,932.10, made a reference under Sections 30 and 31(2) of the Act for
apportionment of the same to the Court of District Judge. Likewise, in respect
of lands acquired under Notification dated 23.1.1965 measuring about 3224
bighas and 2 biswas, Award No.2225 dated 26.3.1969 came to be passed for
a sum of Rs.22,27,867.69 and a similar reference under Sections 30 and E
31(2) also came to !Je made, having regard to the disputed nature of competing
clai1"tJs. Smt. Guiab Sundari, claiming exclusive Bhumidar rights in respect of
the entire area, moved applications under Order I Rule 10, CPC, for getting
impleaded to the proceedings on the plea that she had not sold any part of
her rights to any one, that she had been defrauded to sign those documents, F
which are not valid or binding on her and she alone was entitled to the entire
compensation as Bhumidar to the exclusion of all including those who sought
to assert claims as Vendees from her. The Gaon Sabha of the Village also
filed applications claiming the entire compensation on the ground that the
land as per the entries in the Jamabandi vested in the Gaon Sabha as per the
provisions of Delhi Land Reforms Act. All such claims, made by different G
class and category of claimants, came to be combined and consolidated and
taken up for consideration. The learned Additional District Judge (Shri P.L.
Sinlga), who tried the references together, on a consideration of the materials
placed on record, held as follows: -
(a) The lands in question were 'land' within the meaning of Section H
358 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A 3(13) of the Land Reforms Act;
(b) The Bhumidari Certificate/Declaration granted in favour of Smt.
Guiab Sundari was valid, legal and within jurisdiction and the .
transfers made by her in favour of some of the other respondents
are also valid;
B (c) The Owners/Proprietors were legally barred from challenging or
disputing the Bhumidari Certificate issued in favour ofSmt. Guiab
Sundari;
(d) Since the Proprietors were not 'Khudkhast' of the land in question,
their proprietary/ownership rights stood abolished under the Land,
c Reforms Act;
(e) That the Bhumidari Certificate issued in favour of Smt. Guiab
Sundari stood immune from challenge in view of Section 4 o(
>
the Delhi Land Rt:lorms (Amendment) Act I of 1996, which Act
having also been placed in the Ninth Schedule to the Constitution
D of India;
(f) The rights and claims made by the Proprietors were also barred
by limitation;
(g) The lands were not 'waste land' and, therefore, did not vest in
them as claimed by the Union of India and the Gaon Sabha and,
E
therefore, they have no rights or interest in the lands in question;
and
(h) The claims of Union of India and Gaon Sabha are also barred by
res judicata. Consequently, the compensation was awarded to the
Bhumidar and the transferees from Bhumidar, to the exclusion
F of the Proprietors, Gaon Sabha and the Union of India.
Thereupon, about 63 Proprietors joined together and filed RFA No. 309
of 1980 (arising out of the reference made in respect of Award No.2040) and
RFA No.310of1980 (arising out of reference in respect of Award No.2225)
G before_the Delhi High Court. Another set of 10 Proprietors seem to have filed
RFA No.356 of 1980 (in respect of claims arising out of Award No.2040)
and RFA No.357of1980 (in respect of claims arising out of Award No.2225)
before the Delhi High Court. The Gaon Sabha and Union of India seem to
have filed RFA No.340 of 1980 and RF A No.341 of 1980, likewise. It is
stated that about 37 Proprietors, who filed claims before the Reference Court,
H did not pursue their claims by filing any appeals before the High Court and
S. AMARJIT SINGH KALRA v. PRAMOD GUPTA [RAJU, J.) 359
these persons were not parties to the proceedings before the High Court in A
any other capacity also.
It appears that during the pendency of these appeals, about 5 appellants
in RFA No.309 of 1980 and RFA No.310 of 1980 died on different dates and
there was no attempt to take any steps within time for bringing on.record the
legal representatives of those five deceased appellants either at the instance B
of the remaining appellants or the legal heirs of the deceased appellants. On
8.12.1986, the respondents herein seem to have filed applications in RFA
Nos.309 of 1980 and 310 of 1980 seeking for the dismissal of those appeals,
as having been abated due to failure in bringing on record the legal
representatives of the five deceased appellants and also further seeking for C
the dismissal of RFA Nos.356 of 1980 and 357 of 1980 on the ground that
they are not properly constituted and incompetent for the reason that the
connected appeals RFA Nos.309 and 310 of 1980 having abated, the other
appeals involving common questions of fact .and law cannot be proceeded
with, resulting into any conflicting, inconsistent or contradictory decrees. At
that stage, on or about 2.3.1987 applications seem to have been filed by the D
heirs of the deceased parties themselves for bringing them on record as the
legal representatives of the deceased appellants.
The three sets of appeals, numbering about six in all, were taken up for
final hearing, as also those applications along with the appeals. The applications
for condonation of the delay in seeking to set aside the abatement were E
rejected, and it is claimed that even the counsel for the appellants conceded
that there was no sufficient cause for the same. The plea on behalf of the
appellants before the High Court that th~ appeals merely partially abated qua
the deceased appellants only and not in toto did not meet acceptance with the
Court. On the view that in such circumstances the appeals were incon~pet~nt p
and not validly constituted the entirety of the appeals RFA Nos.309 and 310
of 1980 were held to abate in toto and rejected the same. Since common and
same questions were raised in the other appeals, RFA Nos.356 and 357 of
1980 were also dismissed, likewise. The appeals filed by the Gaon Sabha and
Union of India were dismissed on the ground that they were barred by res
judicata. Hence, the above appeals. G
One of the respondents by name Bhim Singh had died on 8.10.1988,
even when the appeals were pending before the High Court. One Ahsan
Ullah another respondent/co-bhumidar was also said to have died even during
the pendency of the Reference proceedings. Smt. Guiab Sundari, one of the H
360 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A respondents, died on 12.5.1995; another resrr>ndent-K.K. Kochar died on
12.10.1992 and one Mohanlal also died duri11 15 the pendency of these
proceedings. As noticed supra, applications for bringing on their legal
representatives and connected applications were already allowed.
A brief reference to the history of the lands and the role of the parties
B concerned with them would be necessary to highlight the nature of the claims
and the need for an effective and objective consideration and determination
of the same on merits, in accordance with law. The lands in question, in
which the various Proprietors in the village held distinct, separate and
independent shares, were leased out on 15.11.1939 by the Proprietors under
C a Registered Lease Deed in favour of Delhi Pottery Works for a period of
twenty years for exploiting minerals. The lands were said to be otherwise not
fit or capable of any cultivation. The said lessees seem to have sublet the
same on 23.5.1942 in favour of a partnership firm of Kota in Rajasthan,
known as "Dewan Bahadur Seth Kesari Singh Budh Singh'', for the remaining
period of seventeen years from 18.4.1942 to 17.4.1959. On 10.5.1951, one
D Smt. Guiab Sundari claimed to have been inducted as the third partner in the
sub-lessee firm and thereafter on 17.10.1951, an alleged dissolution of the
partnership was said to have taken place as evidenced by a supplementary
deed of dissolution said to have been executed on 27.8.1953 (unregistered)
allotting the rights of the partnership finn under the Mining sub-lease dated
E 23.5.1942, to Smt. Guiab Sundari. Claiming to have secured a Bhumidari
Certificate under the Land Reforms Act, she seems to have filed a Civil Suit
No.174 of 1959 seeking for cancellation of the proceedings vesting the lands
in the Gaon Sabha, on the basis that she continued to be Bhumidar. The said
suit seems to have been decreed on 12.12.1966 and the appeals preferred by
the Gaon Sabha and the Union of India were also said to have been dismissed,
F though the question as to whether the proceedings in which she claimed to
have been accorded Bhumidar rights is illegal or legal was actually left open
undecided and as irrelevant for the said litigation. Taking advantage of the
above alone, the said Guiab Sundari seems to have got impleaded as a claimant
in the proceedings before the Reference Court, for apportionment of the
G compensation awarded, among herself and her alienees. She also seems to
have initially questioned the alienations made by her as being vitiated due to
undue influence and fraud alleged to have been practised on her. But,
subsequently on 27.7.1969, such alienees and Mrs. Guiab Sundari appear to
have entered into a compromise and the same was also said to have been
filed before the Reference Court on 31.7.1969, resulting in those persons also·
H making their claims before the Court. On 17.10.1969, Guiab Sundari seems
S. AMARJITSINGH KALRA v. PRAMODGUPTA [RA.JU, J.] 361
to have filed a fresh claim statement claiming 3/16th share of the compensation A
leaving the remaining I 3/l 6th share in favour of those sixteen persons.
It may be stated that the Additional District Judge, Delhi, decided the
references on 20.5.1980 and the appeals before the High Court were filed
against the said decision. During the pendency of the appeals before the High
Court, the following appellants in RFA Nos.309 and 310 of 1980 were said B
to have died, as noticed below: -
S.No. Name of the appellant & rank date of death
I. Shri Mukhtiar Singh (A. No.19) 24.06.1982
2. Shri Chandgi Ram (A. No.31) 01.04.1981
c
3. Shri Amichand (A. No.55) 21.02.1984
4. Shri Chhelu (A. No.56) 28.04.1983
5. Shri Balbir (A. No.57) 14.11.1985
D
Applications for impleading their legal representatives were said to have
been filed on 2.3.1987. These applications were rejected as belated and that
no sufficient cause has been shown for condonation of the delay. The plea
of partial abatement, if at all, of appeals qua only those deceased appellants
was not accepted by the High Court and on the view that the decree was joint E
based upon common right and interest, the appeals were rejected in toto, as
noticed supra.
The proceedings, since had their origin under the Land Acquisition
Act. 1894, it is appropriate to notice the nature and purport of the same for
a better appreciation of the nature of cause of action. After a firm decision F
has been taken to acquire the land by issuing a Declaration under Section 6
of the Act, the Land Acquisition Collector, empowered for the purpose, proceed
to conduct an enquiry to pass an Award as to (i) the true area of the land
covered by the Award; (ii) the total compensation to be allowed for the land
and (iii) the apportionment of that compensation among all the persons
interested in the land, whether they have appeared before him or not. This G
Award, in law, is considered to be a mere offer made by the Government to
the claimants whose property is acquired. If the same is accepted without
protest, the right to compensation will not survive any longer, but if it is not
accepted or accepted under protest and a reference is sought under Section
I 8, the right to receive compensation survive and kept live for being prosecuted H
362 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A before the Civil Court, to which a reference will be made, when sought in
terms of Section 18. Against the Award that ma, be 'Jassed by the Reference
Court, the parties thereto can pursue their remedies for determination of a
proper amount of compensation before the High Cou11 and this Court, as
well. So much, about the determination of the compensation. Where several
B persons are interested in the compensation and if such persons agree in the
apportionment of the compensation, the apportionment will be specified in
the Award itself by the Land Acquisition Collector and the same shall be
conclusive evidence of the correctness of the apportionment. But, when the
amount of compensation has been settled under Section 11, if any dispute
arise as to the apportionment of the same or any pa11 thereof or as to the
C persons to whom the same or any part thereof is payable, Section 30 envisages
the Collector to refer such dispute to the decision of the Court. Section 31
stipulates that on making an Award under Section 11, the Collector shall
tender payment of the compensation awarded by him to the persons interested
entitled thereto according to the Award, unless prevented by one or the other
of the contingencies envisaged therein, viz., if they shall not consent to
D receive it, or if there be no person competent to alienate the land, or if there
be any dispute as to the title to receive the compensation or as to the
appo11ionment of it, the Collector is obligated to deposit the amount of the
compensation in the Court to which a reference under Section 18 wou Id
normally be submitted Thus, before further proceeding to take possession, if
E not already taken as envisaged under Section 17, the Collector has to pay or
deposit the amount awarded, in the manner noticed above, and the parties
then will be at liberty to litigate in the ordinary way to determine what their
rights and title to the property and the compensation may be.
Therefore, it becomes necessary for the Reference Court dealing with
F a reference made to it under Sections 30 and 31(2) and the Appellate Court
dealing with appeals arising out of such decision rendered by the Reference
Court, to decide as to who among the claimants, or whether anyone of them
at all are entitled to receive the compensation or any portion of it and if so,
in what propo11ion or that any other than those already before the Court is
G entitled to the same. So far as the cases on hand are concerned, having regard
to the ramification of the Land Reforms Act on the legality, propriety and the
tenability of the various claims, it becomes obligatory to consider each of
such claims distinctly. The rejection of any one cannot by itself be a
justification for sustaining the claim of the other and if none of the private
claimants are found to be legally entitled to the same, the Government or for
H that matter the Local Authority concerned may even be the residual beneficiary,
S.AMAR.JITSINGHKALRA v. PRAMODGUPTA[RA.JU, J.) 363
entitled to it. The consideration, therefore, cannot be confined to the claimants A
before Court but the Court is obliged to find out who really would be entitled
to the same, whether a party before it or not. The Reference Court does not
seem to have been alive to its onerous responsibilities in these cases and the
High Court having rejected the appeals as having abated had no occasion to
advert to the question as to whether the adjudication by the Reference Court B
was in keeping with the requirements of its obligations and the ultimate
decision was in conformity with law. This aspect is noticed only to highlight
the serious nature of the various issues involved but omitted to be properly
and effectively decided and not to express any opinion on any such claims
or questions.
Dr. K.S. Sidhu, learned senior counsel appearing for some of the
c
appellants, vehemently contended that the High Court ought not to have
dismissed the appeals in toto merely because about five of the appellants died
and the belated attempt to bring on record their legal representatives did not
fructify and even in the absence of those legal representatives the. claims of
the other 58 surviving appellants in RF A Nos. 309 and 310 of 1980 ought D
to have been dealt with and disposed of in accordance with law on merits,
since each one of them were seeking relief on the basis of his own independent
ca.use of action, grievance, right to claim relief arising out of his distinct and
specified share in the lands acquired under the Act, as recorded in the
Jamabandi. Reliance has been placed upon the decision of this court reported
E
in Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors., (1975]
2 SCR 932, and the decisions on which the respondents sought to place
strong reliance were sought to be distinguished on the basis of the nature of
claims involved in those cases. Argued the learned.counsel further that merely
because the Reference Court before whom separate claims, individually were
made in respect of their own distinct and independent shares, has chosen to F
combine and consolidate all such claims for consideration in common does
not have the effect of rendering the decree passed therein to be "one and
indivisible" and that therefore grave injustice has been meted out to the
appellants in dismissing the appeals in entirety without adjudicating on the
merits of the respective claims due to the abatement caused in respect of the G
five appellants who died and whose legal representatives could not be brought
on record, in time. For the same reasons, according to the learned counsel,
the death of some of the parties to the proceedings during the pendency of
the appeals in this court would not attract the application of the principle
justifying dismissal of the appeals in toto even in respect of others.
H
364 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A Sarvashri P.P. Juneja and Saharya while adopting generally the
submissions of the senior counsel on behalf of the other appellants, also
contended that the provisions of Order 22 strike a discordant note with the
specific mandate contained in Section 1l(l)(iii) and Section 30/31 of the
Land Acquisition Act, 1894 which obligates an adjudication on the right as
B well as the proportion in which the compensation is to be awarded according
to his share or entitlement to a person interested, whether or not such person
appeared before the authority concerned, and therefore, the rejection of the
appeals and that too in toto, cannot be justified in law. All the learned counsel,
appearing for all the appellants have high Iighted the merits of the case and
the necessity to determine the claims on merits in the teeth of the alleged
C nebulous and insufficient basis of the claim of the so called Bhumidar and
her transferees, particularly when according to the appellants there was no
effective adjudication of the same and more so when in the earlier proceedings
such an issue was specifically left open. We do not propose to advert to them
in greater details, in as much as the High Court has not gone into them and,
D if at all, the judgment of the High Court calls for interference, the matters
have to be relegated back to the High Cou1t for deciding the same on merits.
Sarvashri K. Parasaran, Senior Advocate, supported and supplemented
by T.R. Andhyarujina, K. Ramamoo11hy, L.R. Gupta, were heard on behalf
of the respondents, claiming the entire compensation as Bhumidar's. While
E justifying the conclusions arrived at by the High Court, it was strenuously
contended that the disputes centred around one lump sum of compensation
to be shared and divided among the sharers, in respect of an undivided and
common land, that the competing claims were at the instance of one class on
the basis that they are Proprietors and the other on the basis that they are
entitled to Bhumidari rights and consequently, having regard to the unity of
F possession of the land and the fact that the litigation is on the same nature
of title, the decree passed would be a joint and indivisible one, either way
and to which the principle laid down in The State of Punjab v. Nathu Ram,
[ 1962] 2 SCR 636, subsequently followed and applied in several other cases,
squarely applied and no exception could be taken to the judgment rendered
G by the High Court. It was also urged that once the provisions of the Code of
Civil Procedure 1908, applied the other things inevitably followed and the
doctrine of representation also did not apply to the case on hand. Even dehors
the question of abatement under Order 22 Rules 3 & 9, the appeals, according
to the respondents, were rightly rejected as not duly and properly constituted,
failing which there was every possibility of any such decision on merits
H
S. AMARJIT SINGH KALRA v. PRAMOD GUPTA [RAJU, J.] 365
resulting in contradictory decrees in the same cause or subject matter. A
On behalf of the respondents, it was also pointed out that the serious
lapses and absence of sufficient cause, as conceded by the counsel for the
appellants before the High Court itself, for the delay in bringing on record
the legal representatives of the deceased 5 appellants of the same village,
despite the knowledge of their death, justified their rejection and no challenge B
could be made of it, at this stage. It was also urged that even these appeals
before this Court also have abated on account of the death of Smt. Guiab
Sundari (R-27), Shri K.K. Kochar (R-12) and Bhim Singh (R-23), since the
applications to bring on record their legal representatives were dismissed as
"not having been pressed" by the order dated 22.11.200 I passed by the C
Constitution Bench. The applications now moved for revival of those
applications are said to be of no merit and that the bar under Order 23 Rule'
1(4) and Order 22 Rule 9(1) CPC read with Section 141 CPC was also
attracted besides the bar of limitation. Reliance has been placed in this regard
on 1he cB:::is:bns lEp:)]:IB:I :h Saguja Transport Service v. State Transport
Appellate Tribunal, M.P. Gwalior and Ors., [1987] l SCC 5 and Renen Roy D
v. Prakash Mitra, [1988] 9 SCC 689.
Strong reliance has also been placed on· the decision of the Constitution
Bench of this Court reporte.d in Ram Sarup v. Munshi and Ors., [1964] 3
SCR 858, in support of the stand that where a decree is a joint one and a part
of the decree has become final by reason of abatement the entire appeal must E
be held to be abated. The further plea on behalf of the respondents was the
impleadment of the legal representatives in the other batch of appeals cannot
be of any assistance to deem their impleadment in the cases where no steps
have been taken or where steps have been attempted but not resulted in any
actual order to so implead them and that the appellants cannot approbate and p
reprobate to take different or opposite stands. The abatement being automatic
takes effect ipso facto and no separate order was required therefor, according
to the respondents. The or_ders passed in I.A. No.29-30/1988 on 22.3.1999,
deleting respondent Nos.5 to 7, 18, 22 (vii) and 26 were said to render these
appeals defective on account of non-joinder/absence of the necessary parties.
The non-filing of appeals by 37 Proprietors out of 110, or non-joinder of G
those parties to the proceedings, was also claimed to render the appeals by
only the others, incompetent and not properly or validly constituted and
reliance was also sought to be placed in this regard on the decision reported
in Kanakrathanamma/ v. V.S. Loganatha Mudaliar and Anr., [1964] 6 SCR
I and Jahar Roy (dead through LRs) and Anr v. Premji Bhimji Mansata and H
366 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A Anr., [ 1978] I SCR 770 and for that very reason these appeals are also said
to be incompetent and liable to be dismissed.
A reference to the case law on which strong reliance was placed by
either side becomes essential, before adverting to the relevance and
applicability or otherwise of the principles laid down therein to the points
B arising for consideration in these appeals. The earliest of the series, which
came to be noticed, followed and distinguished in several subsequent decisions
is the one in Nathu Ram's case (supra). The relevant facts necessary to
appreciate the principle laid down therein are, that the Punjab Government
acquired on lease certain parcels of land belonging to Labhu Ram and Nathu
C Ram for military purposes under the Defence of India Act, 1939. The brothers
refused to accept the compensation offered and applied for reference to an
Arbitrator who passed an award ordering the payment of an amount higher
than what was offered by the collector and further directed the payment of
certain amount on account of Income Tax which would be paid on the
compensation received. An appeal was filed by the State Government before
D the High Court and during the pendency of the appeal, Labhu Ram, one of
the respondents, died. The High Court, while holding the appeal to have
abated as against Labhu Ram, further held its effect to be the dismissal of the
appeal against Nathu Ram also. The cross-objections also were dismissed. On
a certificate being granted, the matter came up on appeal before this Court.
E This court while adverting to Order 22 Rule 4, CPC, observed that the code
does not provide for the abatement of the appeal against the other respondents,
though courts at times have held that in certain circumstances, the appeals
against the co-respondents would also abate, as a result of the abatement of
the appeal against the deceased respondent, indicating that it would be income!
to state that the appeal abated in such circumstances, this court observed that
F the appeal in certain circumstances even against the respondent other than the
deceased, would be rendered not possible to be proceeded with further and
therefore the court would refuse to deal with the appeal further and dismiss
it. This Court proceeding further observed as follows:
"The question whether a Court can deal with such matters or not, will
G depend on the facts of each case and therefore no exhaustive statement
can be made about the circumstances when this is possible or is not
possible. It may, however, be stated that ordinarily the considerations
which weigh with the court in deciding upon this question are whether
the appeal between the appellants and the respondents other than the
H deceased can be said to be properly constituted or can be said to have
S. AMARJIT SINGH KALRA v. PRAM OD GUPTA [RAJU, J.] 367
all the necessary parties for the decision of the controversy before the A
Court. The test to determine this has been described in diverse forms.
Courts will not proceed with an appeal (a) when the success of the
appeal may lead to the Court's coming to a decision which be in
conflict with the decision between the appellant and the deceased
respondent and therefore which would lead to the Court's passing a B
decree which will be contradictory to the decree which had become
final with respect to the same subject matter between the appellant
and the deceased respondent; (b) when the appellant could not have
brought the action for the necessary relief against those respondents
alone who are still before the Court and (c) when the decree against
the surviving respondents, if the appeal succeeds, be ineffective, that C
is to say, it could not be successfl!llY executed.
There has been no divergence between the courts about the court's
proceeding with the appeal between the respondenis other than the
deceased respondent, when the decree in appeal was not a joint
decree infavour of all the respondents. The abatement of the appeal D
against the deceased respondent, in such a case, would make the
decree in his favour alone final, and this can, in no 'circumstances,
have a i;epercussion, on the decision of the controversy between the
appellant and the other decree-holders or on the execution of the
ultimate decree between them. (Emphasis supplied)
E
The difficulty arises always when there is a joint decree. Here again,
the consensus of opinion is that if the decree is joint and indivisible,
the appeal against the other re~pondents also will not be proceeded
with and will have to be dismissed as a result of the abatement of the
appeal against the decea5ed respondent. Different views exist in the F
case of joint decrees in favour of respondents whose rights in the
subject matter of the decree are specified. One view is that in such
cases, the abatement of the appeal against the deceased respondent
will have the result of making the decree affecting his specific interest
to be final and that the decree against the other respondents can be
suitably dealt with by the appellate court. We do not consider this G
view correct. The specification of shares or of interest of the deceased
respondent does not affect the nature of the decree and the capacity
of the joint decree holder to execute the entire decree or to resist the
attempt of the other party to interfere with the joint tight decreed in
his favour. The abatement of an appeal means not only that the decree H
368 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A between the appellant and the deceased respondent has become final,
but also, as a necessary corollary, that the appellate Court cannot, in
any way, modify that decree directly or indirectly. The reason is
plain. It is that in the absence of the legal representatives of the
deceased respondents, the appellate court cannot detennine anything
between the appellant and the legal representatives, which may affect
B the rights of the legal representatives under the decree. It is immaterial
that the modification which the court will do is one to which exception
can or cannot be taken."
This Court, noticed the peculiar facts in that case to come to the
C conclusion that the decree was joint in nature, in favour of both brothers and
that in the absence of one of the joint decree-holders due to his death and
omission to bring on record the legal representatives, the State cannot get rid
of the joint decree and therefore the State appeal against Nathu Ram alone
cannot be proceeded with. The salient features noticed therein which weighed
with this Court are that the lease of the land was joint, the claim was joint,
D based on the allegation that the land belonged to them jointly, that the award
and joint decree was on that basis and since a claim put forward by the State
before the Arbitrator itself that the joint application should be treated as
separate applications and separate awards should be passed relating to their
respective shares was rejected by the Arbitrator who in his discretion decided
E and passed a joint Award and the frame of the appeal, with particular reference
to the nature of the decree challenged. In rejecting the plea of the State that
the legal representative of Labhu Ram would be entitled to be paid separately
the share of Labhu Ram only, this Court held that such calculations were
foreign to the appeal which only concerned with the correct amount of
compensation payable with respect to the iand taken over, as awarded by the
F Arbitrator-the exercise being one and the same, and that there cannot be
different assessments of the amount of compensation for the same parcel of
land and, therefore, the said question cannot be decided merely on the basis
of separate shares.
It is not necessary to consider individually all the decisions rendered by
G Benches of two and three learned judges, brought to our notice, wherein
uniformly this Court has held (a) In case of "Joint and indivisible decree",
"Joint and inseverable or inseparable decree", the abatement of proceedings
in relation to one or more of the appellant(s) or respondent(s) on account of
omission or lapse and failure to bring on record his or their legal representatives
H in time would prove fatal to the entire appeal and require to be dismissed in
S. AMARJIT·SINGH KALRA v. PRAMOD GUPTA [RAJU, J.) 369
toto, as otherwise inconsistent or contradictory decrees would result and proper A
reliefs could not be granted, conflicting wi!h the one which had already
become final with respect to the same subject matter vis-a-vis the others; (b)
the question as to whether the Court can deal with ari appeal after it abates
against one or the other would depend upon the facts of each case and no
exhaustive statement or analysis cou Id be made about all such circumstances
wherein it would or would not be possible to proceed with the appeal, despite B
abatement, partially; (c) existence of a joint right as distinguished from tenancy
in common alone is not the criteria but the joint character of the decree,
dehors the relationship of the parties inter se and the frame of the appeal, will
take colour from the nature of the decree challenged; (d) where the dispute
between two groups of parties centred around claims or based on grounds C
common relating to the respective groups litigating as distinct groups or
bodies-the issue involved for consideration in such class of cases would be
one and indivisible; and (e) when the issues involved in more than one
appeals dealt with as group or batch of appeals, which :ire common and
identical in all such cases, abatement of one or the other of the connected
appeals due to the death of one or more of the parties and failure to bring on D
record the legal representatives of the deceased parties, would result in the
abatement of all appeals.
Strong reliance has been placed for the respondents on the decision of
a Constitution Bench of this Court reported in Ram Swarup v. Munshi and E
Ors., [1963] 3 SCR 858. That was a case wherein the owner of certain
agricultural lands in Punjab sold the same to one of the respondents on
12.12.1957 and the son of the vendor claiming to be entitled to a right of pre-
emption instituted a suit against the purchaser relying upon Section 15(a) of
the Punjab Pre-emption Act, 1913. The suit came to be decreed by the trial
cou"i1 and affirmed by the First Appellate Court as well as the High Court. F
.' , -
The matter was pursued on appeal before this Court by the appellants who
were, five in number falling in two groups, the l st and 2nd appellants, who
are brothers, and appellant Nos. 3, 4 & 5, the other. During the pendency of
the said appeal the !st appellant died on 18.5.1960 leaving a widow, four
daughters and a son, as his heirs. No application was made to bring on record G
those legal representatives but the appellant preferred to proceed with the
_appeal on behalf of the remaining four appellants. The respondents raised a
plea to dismiss the appeal, in entirety, as incompetent without the legal
representatives of the 1st appellant on record. This was met by the counsel
for the appellants, contending that since the interest of the_ deceased was
distinct and separate from that of the others whatever might be the position H
370 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A as to the share of the deceased and partial abatement due to his death, the
same would not affect the continuance of the appeal by the surviving appellants
as regards their share in the property. In rejecting the plea on behalf of the
surviving appella;ts, tlils Court held as hereunder:
"An English translation of the deed of sale has now been produced
B before us and a perusal of it indicates that the submission made on
behalf of the appellants is not sustainable. The consideration for the
sale is a sum of Rs. 22,750 and the conveyance recites that Mehar
Singh and the second appellant had paid one half amounting to
Rs.11,375 while the other three appellants had paid the other half. It
is therefore not a case of a sale of any separated item of property in
c favour of the deceased-appellant but of one entire set of properties to
be enjoyed by two sets of vendees in equal shares. It is clear law that
there can be no partial pre-emption because pre-emption is the
substitution of the pre-emptor in place ofthe vendee and if the decree
infavour of the pre-emptor in respect of the share of the deceased
D Mehar Singh has become final it is manifest that there would be two
conflicting decrees if the appeal should be allowed and a decree for
pre-emption insofar as appellants 2 to 5 are concerned is interfered
with. Where a decree is a joint one and a part of the decree has
become final by reason of abatement, the entire appeal must be held
to be abated. It is not necessary to cite authority for so obvious a
E position but we might refer to the decision of this court in Jhanda
Singh v. Gurmukh Singh (deceased)'. The result is that the appeal
fails as having abated and is dismissed with costs." (Emphasis supplied)
The right sought to be asserted in this case was considered to be single
F and joint, though on behalf of more than one.
The appellants relied heavily upon the decision reported in Harihar
Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors., [1975] 2 SCR 932,
rendered by a Bench of three learned Judges. The suit therein came to be
filed by the plaintiffs claiming to succeed to the estate of one R, a Bhumihar
G Brahmin on the basis of a special custom of the family to which the parties
belonged, though under the ordinary Hindu Law they would not be entitled
to succeed to the estate of R being related to him in distant degree. The
custom was sought to be substantiated by proving 52 instances of its
observance. The trial court decreed the suit holding the custom to be in force
H I. Civil Appeal No. 344 of 1956, decided on April I 0, 1962.
S. AMARJIT SINGH KALRA v. PRAMOD GUPTA [RAJU, J.) 371
on the proof of 49 such instances. The defendants filed three appeals getting A
themselves divided into three groups. One of the respondents in one of the
three appeals, who was not arrayed as a respondent in the other appeals, died
and his legal representatives were not brought on record. The High Court
differed and reversed the decree on the view that none of the instances
claimed were proved. The matter was taken before this Court on appeal by
filing three appeals. The objection taken on behalf of the respondents was B
that the High Court should have dismissed the appeal on account of the fact
that though when plaintiffNo.29 died in 1953 his wife and son were substituted
in his place on 12.8.53, when the said widow died on 1.11.67, leaving behind
a son (already a party) and a daughter, the counsel sought for striking of the
name of the deceased since her son was already on record and there was no C
need to bring any other legal representatives and the appeal can be proceeded
with on that basis without impleading the daughter. When the respondents ·
made an application stating that the appeal abated in the absence of all legal
representatives of the deceased, an application came to be filed to implead
the daughter also, but the same was rejected as belated and that the effect of
the said order will be considered at the time of final hearing of the appeals. D
Finally, the other appeals were held not to abate merely because the Trial
Court decree was one. This Court, while dealing with such a situation, held
as follows:
"The important point to note about this litigation is that each of the E
reversioners is entitled to his own specific share. He could have sued
for his own share and got a decree for his share. That is why five
title suits Nos.53 and 61 of 1934 and 20, 29 and 41 of 1935 were
filed in respect of the same estate. In the present case also the suit in
the first instance was filed by the !st and 2nd plaintiffs for their I/
12th share. Thereafter many of the other reversioners who were F
originally added as defeadants were transposed as plaintiffs. Though
the decree of the Trial Court was one, three appeal Nos. 326, 332 and
333 of 1948 were filed by three sets of parties. Therefore, if one of
the plaintiffe dies and his legal representatives are not brought on
record the suit or the appeal might abate as far as he is concerned
but not as regards the other plainiijfs or the appellants. Furthermore, G
the principle that applies to this case is whether the estate of the
deceased appellant or respondent is represented. This is not a case
where no legal representative of Manmohini was on record .
......................................................................................................................................... H
372 SUPREME COURT REPORTS {2002) SUPP. 5 S.C.R.
A
As we have already pointed out, in this case each one ofthe plaintifft
could have filed a suit for his share of Ramdhan Singh 's estate. The
fact th_at all the reversioners joined together as plaintifft and filed
one suit does not mean that iffor one reason or other the suit of one
B of them fails or abates the suit of the others fails or abates. The
decree is in substance the combination of several decrees in favour
of several plaintifft. If in an appeal against the decree one of the
plaintifft is not added as a respondent, it only means that the decree
in his favour cannot be set aside or modified even if the appeal
succeeds against other plaintifft in respect of their interest. There
c would in that case be no conflict between the decrees as the decree
is a combination of many decrees. In other words the result of the
failure to add Nirsu Prasad Singh as a respondent in F.A. 332 and
F.A. 333 would be that the decree granted in his favour by the
Subordinate Judge would stand but not the decrees granted in favour
D of the other plaintiffs. They can be reversed in those appeals. There
was no such difficulty in F.A. 326 and in that appeal the decree
granted in favour of Nirshu Prasad Singh as well as in favour of other
plaintiffs could have been reversed. This is not a case where a party
who is aggrieved by a decree fails to file an appeal within the time
allowed by law and should not, therefore, be granted relief under
E 0.4I, R.33."
(Emphasis supplied)
In Indian Oxygen Ltd v. Ram Adhar Singh and Ors.. : C.A. No. 1444/
1966 dated 24.9.1968, a Bench of three learned Judges of this Court had also
F an occasion to deal with· the relevant principles relating to abatement of
proceedings. That was a case wherein five workmen employed as watch and
ward staff of the appellant-company raised a dispute that though they were
entitled to be provided with the staff quarters located inside the factory
premises, since the company imposed an unreasonable condition that the
G quarters would be only for the personal use of the workers and that even their
families would not be permitted to reside with them therein, the company is
liable to pay Rs.15 per month towards quarter allowance, inasmuch as none
of them could live in the quarters. The matter was referred to the Industrial
Tribunal and the claim was allowed by the Tribunal with a direction to pay
Rs. I 0 per month as quarter allowance. Aggrieved, an appeal was filed before
H this Court by obtaining special leave. Pending appeal in this Court, the !st
S. AMARJIT SINGH KALRA v. PRAMOD GUPTA [RAJU, J.] 373
respondent died but the company failed to bring his heirs and legal A
representatives on record and, therefore, the appeal abated against the I st
respondent. The respondents contended that the appeal having abated as against
the deceased 1st respondent, the appeal against the other surviving respon.dents
must also be held to have abated, and dismissed as sucli. Reliance was placed
in support of the said claim on the decision in Nathu Ram's case (supra) and
Krishan Singh and Ors. v. Nidhan Singh and Ors., : CA No. 563 of 1962 B
dated 14.12.64. While rejecting the said claim, it was observed as hereunder:
"Though it may, with some stretch oflanguage, be contended that the
alleged right under which allowance was claimed was a right common
to the workmen engaged in Watch & Ward department, the statement
of claim filed on behalf of the five workmen itself claimed allowance C
as from the date of appointment of each of them which would not
necessarily be the same. The claim also was for a separate allowance
for each of them and not for an amount jointly claimed by them all.
It would seem that in the light of such a separate claim for each of
the five workmen the dispute referred to the Tribunal was worded as D
follows:
"Should the employers be required to pay House Allowance to
the workmen, named in the Annexure? If so, from which date
and with what other details?"
The words "from which date and with what other details" were used E
because the date from which allowance was claimed and would be
payable, if the award went against the company, would be the
respective date of appointment of each of them. The claimants were
the five workmen named in the annexure to the reference i.e. the
workmen then employed in the Watch & Ward department and not F
those who in future would be appointed bYthe company. It is thus
clear that the claim was a separate one by each of the five workmen
and not a joint claim in respect of a joint right. The award of the
Tribunal also is not for one amount jointly claimed or jointly payable.
The operative part of the award is in the following words:
G
"!, therefore, award that a sum of Rs. I 0 per mensem shall be
allowed by way of House Rent Allowance to the members of
Watch and Ward where the worker is not supplied a residential
quarter to stay in it along with his family."
The appeal filed by the company is thus not against an award which H
374 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A was joint and indivisible as in the two decisions relied on by counsel,
but was one in favour of each of the five workmen named in the
annexure to the Reference. The allowance payable by the company
under the award was not to all of them but to the workmen to whom
·the company refused to provide with one of the said four quarters
with permission to live with his family. No allowance, therefore,
B ·would be payable under the award to the workmen to whom the
company gave the quarters with permission to live with their families.
It may be that the workmen, Ram Adhar Singh, having died pending
this appeal and his legal representatives not having been brought on
record, the appeal against him would abate and the award to the
c extent of the allowance payable to him would become final, and,
therefore, even if the company were to succeed in this appeal, the
amount paid by the company to him or to legal representatives after
his death cannot be claimed back by the company. But so far as the
other respondents are concerned, the award being for a distinct amount
payable to each of them, there is, in our view, no question of abatement
D of the appeal against them on the ground that the appeal against the
said Ram Adhar Singh has abated. This is not, therefore, one of those
cases where by reason of the decree being a joint and indivisible
decree, the Court would have to pass inconsistent orders under the
same decree, one in favour of lhe deceased respondent and the other
E against the surviving respondents. The contention of !vfr. Goyal,
lherefore, mus/ be rejecled. " (Emphasis supplied)
We have carefully considered the submissions of the learned counsel
on either side. The consideration by the High Court seems to be too superficial
on the basis of certain abstract principles without particular reference to the
F nature and character of the proceedings, the nature of claims and rights of
parties, the statutory obligations cast on the courts dealing with a reference
under Section 30/31 originating from an Award under Section 11 of the Act
and the source as well as origin of rights of the claimants. The Land Acquisition
Collector empowered under the Act to pass the Award was not only obliged
to, among other things, determine the total compensation to be allowed for
G the land but also apportion the said compensation among all the persons
interested in the land depending upon their respective interests proportionately,
whether they have appeared or not before him. If any dispute arises as to the
apportionment of the compensation or any part thereof or as to the persons
to whom the same or any part thereof is payable, the Land Acquisition
H Collector is obliged to refer such dispute to the decision of the Court. If the
S.AMARJITSINGHKALRA v. PRAMODGUPTA[RAJU, J.] 375
amount could not be disbursed at his level due to any one or the other A
reasons set out in Section 31, the amount has to be deposited in the Court to
which normally a reference would be submitted. The claim of each one was
in respect of his distinct, definite and separate share and their respective
rights are not inter-dependant but independent. Among themselves there is no
conflicting or overlapping interest and the grant of relief to one has no B
adverse impact on the other(s). The mere fact that there was no division by
metes and bounds on state of ground is no reason to treat it to be a j9int right-
indivisible in nature to be asserted or vindicated only by all of them joining
together in the same proceedings, in one capacity or the other. As a matter
of fact separate claims seem to have been filed by them before the Reference
Court in respect of their own respective share. Even if they have engaged a C
common counsel or even if they have filed one claim in respect of their
specified separate share, it could not have the effect of altering the nature of
their claim or the character of their right so as to make it ari indivisible joint
right. Though the Reference Court has decided all such claims together,
having regard to the similarity or identical nature of issues arising for
consideration of the claims, in substance and reality the proceedings must be D
- considered in law to be of multifarious claims disposed of in a consolidated
manner resulting in as many number of Awards of the Reference Court as
there were claimants before it. There was no community of interest between
them and that each one of them in vindicating their individual rights was not
obliged to imp lead the other claimants of their shares in one common action/ E
proceeding and the orders/judgment though passed in a consolidated manner,
in law, amounts to as many orders or judgments as there were claimants and,
by no reason, it can be branded to be a joint and inseverable one. Similarity
of the claims cannot be a justification in law to treat them as a single and
indivisible claim, for any or all purposes and such a thing cannot..be legitimately
done without sacrificing the substance to the form. The claim on behalf of F
the respondents that the compensation awarded is of a lump sum, though
shares are divided, is belied by the scheme underlying Sections 11, 18, 30
and 31 of the Act, and cannot be countenanced as of any merit. Against the
Award of the Reference Court in this case, it was possible and permissible
in law for everyone of the appellants to file an appeal of his own separately G
in respect of his share without any need or obligation to implead every other
of the claimants like him, as party respondent or as co-appellant, because
there is no conflicting interest or claims amongst them, inter se. As such, the
alleged and apprehended fear about possible inconsistent or conflicting decrees
r·
resulting therefrom if the appeals are proceeded with and disposed of on
merits has no basis in law nor well founded on the facts and circumstances H
376 SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.
A of these cases. Even if the appellants succeed on merits, dehors the fate of
the deceased appellants, the decree passed cannot either said to become
ineffective or rendered incapable of successful execution. To surmise even
then a contradictory decree coming into existence, is neither logical nor
reasonable or acceptable by Courts of Law. Otherwise, it would amount to
B applying the principle of vicarious liability to penalize someone for no fault
of his and denial of ones own right for the mere default or refusal of the
other(s) to join or contest likewise before the Court. The fact that at a given
point of time all of them joined in one proceedings because one Court in the
hierarchy has chosen to club or combine all their individual and separate
claims for purpose of consideration on account of the similarity of the nature
C of their claims or that for the sake of convenience they joined together for
asserting their respective, distinct and independent claims or rights is no
ground to destroy their individual right to seek remedies in respect of their
respective claims. In cases of the nature, there is every possibility of one or
the other among them subsequently reconciling themselves to their fate and
D settle with their opponents or become averse to pursue the legal battle forever
so many reasons, as in the case on hand due to disinterestedness, indifference
or lethargy and, therefore, the attitude, approach and resolve of one or the
'.111::::
other should not become a disabling or disqualifying factor for others to ·
vindicate their own individual rights without getting eclipsed or marred by
the action or inaction of the others. Consequently, the fact that about 37 out
E of the total number of interested persons, like the appellants, were not parties
before· the High Court or this Court, does not, in any manner, affect or
deprive the appellants to have their claims, duly and properly considered and
adjudicated in accordance with law, on merits.
Laws of procedure are meant to regulate effectively, assist and aid the
F 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
G well as the subsequent amendments thereto would lend credit and support to
the view that they were devised to ensure their continuation and culmination
into an effective adjudication and not to retard the further progress of the
proceedings and thereby non-suit the others similarly placed as long as their
distinct and independent rights to property or any claim remain intact and not
lost forever due to the death of one or the other in the proceedings. The
H provisions contained in Order 22 are not to be construed as a rigid matter of
S. AMARJIT SINGH KALRA v. PRAMOD GUPTA (RAJU, J.) 377
principle but must ever be viewed as a flexible tool of convenience in the A
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 l(.ery perception it had on the question of
abatement, allowed the applications for impleadment even dehors the cause B
for the delay in filing the applications keeping in view the serious manner it
would otherwise jeopardize an effective ':ldjudication 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 C
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 D
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 E
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.
The principles laid down or the ratio of the decision in Ram Sarup's
case (supra) will not apply to the case on hand. As indicated earlier, the real F
decision in a given case would ultimately depend very much on the facts of
that particular case, the nature ef the right sought to be asserted and relief
sought. The suit was filed in that case by some four persons asserting a right
of pre-emption claiming that they are the nearest collaterals of the Vendor
and heirs according to rule of succession. The sale was found to be of one G
entire set of properties to be enjoyed by two sets of Vendees in equal shares.
Since the position of law was held to be clear that there can be no partial pre-
emption and that pre-emption is the substitution of the pre-emptor in place
of the Vendee, the Court felt that two conflicting decrees were bound to
result, if the appeal has to be allowed in favour of the other remaining
appellants, in the teeth of the abatement of the appeal as against the deceased H
378 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A appellants and the decree in respect of him having become final. It is for this
reason that the decree in that case was held to be a joint one and, therefore,
when a part of it has become final by reason of abatement, the entire appeal
was held to have abated, relying upon the decision in Jhanda Singh v. Gurmukh
Singh and Ors. (supra). The Constitution Bench, which rendered the decision
in Ram Sarup 's case (supra), was neither concerned with any reconciliation
B of conflicting views on the point nor declare the correct position of law on
this aspect, for the simple reason that the matter was before the Constitution
Bench only on the question of constitutional validity of Section 15 of the
Punjab Pre-emption Act, 1913, and that the appeal (C.A. No. 214/1961) was
dismissed as having abated in view of the earlier unreported decision dated
C 10.4.2002 in C.A. No.344/1956 (Jhanda Singh's case) rendered by a Bench
of three learned Judges, without any further reference either to the other
decisions striking a different note or undertaking any exercise, of the nature
now before us in the light of a specific reference made therefor.
This Court in Jhanda Singh 's case (supra) was dealing with a matter
D wherein one of the two sons of one Ramditta, by name Gurdas, was taken in
adoption by one Mihan, the paternal uncle of his father. The other son Labhu
died possessed of agricultural land of an extent of 56 kanals and 6 marlas,
leaving behind his widow, who also died in 1945. The two grandsons of
another paternal uncle of Ramditta (Jiwa and Gurmukh Singh) filed a suit
E against Gurdas before the Sub-Court for a declaration that they were in
proprietary possession of an half share in the said land and in the alternative
for possession of the same stating that since Gurdas was adopted by Mihan,
he ceased to have any interest in the properties of his brother Labhu, in the
capacity as brother, and, therefore, the plaintiffs also are entitled to an half
share with Gurdas. Ourdas pleaded that his adoption was only as an appointed
F heir under the customary law according to which he does not lose his rights
co succeed in the natural family. The suit was decreed by the Trial Court and
the First Appellate Court also dismissed the appeal against the same. In the
appeal before the High Court, the plea on behalf of Gurdas was upheld and
the suit was dismissed. But in further appeal under LPA, the Division Bench
G agreed with the judgments of the Courts below and reversed the decision of
the Single Judge of the High Court. Then the matter was pursued before this
Court. The appeal before the High Court itself was filed by the three sons of
Gurdas since he died after the decision of the First Appellate Court. After the
appeal was disposed of by the Division Bench in the High Court, the first
plaintiff seems to have died and in the appeal before this Court the second
H plaintiff and three sons of deceased first plaintiff were respondents. Pending
S. AMARJIT SINGH KALRA v. PRAM OD GUPTA [RAJU, J.] 379
appeal, second plaintiff/respondent died and an application was made to bring A
to the notice of the Court that the heirs of second plaintiff are only the sons
of first plaintiff and that they are already on record. It appears that there were
daughters of the first plaintiff also to be brought on record, besides sisters'
sons and daughters. The application thereafter filed was dismissed by declining
to condone the delay in filing it. An application for review of the said order B
was also dismissed for default. But, the Review Petition, though was restored,
was dismissed on the ground that there was no ground for review. Another
application filed for the purpose of bringing on record the legal representatives
though was listed along with the appeal, the said application was also
dismissed. To a preliminary objection that since the decree under challenge
was a joint one in favour of the plaintiffs, the entire appeal has abated even C
in respect of other respondents, the appellants.claimed that since the plaintiffs
and the heirs were tenants in common having separate and distinct shares in
the prope1ty, there is no impediment for the appeal being proceeded with
against others. Since as a result of the dismissal of the applications, the
appeal abated against the 2nd plaintiff/respondent, the impact of the same on
the rest of the appeal came up for consideration by this Court. D
The decision in Jhanda Singh 's case (supra), though of a Bench of
three learned Judges, dealt with the question in the light of the decision in
Nathu Ram's case (supra) and applied the ratio therein to the said case and
in the process observed that "a perusal of the judgment does not disclose that E
the decision was based upon the existence of a joint right as distinguished
from tenancy in common. The emphasis was more on the joint decree passed
. than on the relationship of the respondents inler se ....." and ultimately came
to the conclusion that "Indeed, this Court definitely held that even specification
of shares does not affect the nature of the decree." On that view of the matter,
the Bench specifically declined to consider in detail the other line of decisions F
placed before them. In Nathu Ram's case (supra), the original claim as
projected before the Arbitrator itself was found to be a joint one in respect
of the land acquired, apparently the same being a claim for merely an enhanced
compensation, unlike the present case before us where the further claim
before the Land Acquisition Collector as well as the Reference Court were G
as to the separate and independent shares of each of their own. This is clear
from the observation in Nathu Ram's case (supra) that, 'Their claim was a
joint claim based on the allegation that the land belonged to them jointly. The
Award and the joint decree are on this basis and the Appellate Court cannot
· decide on the basis of the separate shares". The assumption in Jhanda Singh 's
case (supra) as though this Court in Nathu Ram's case, as a matter of general H
380 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A principle held that specification of shares does not affect the nature of the
decree, cannot be considered to be the correct position emerging on a proper
appreciation of the decision in Nathu Ram's case (supra). It was, at any rate,
observed in this decision also that the nature and extent of abatement in a
given case and the decision to be taken thereon will depend upon the facts
of each case and, therefore, no exhaustive statement can be made either way
B and that the decision will ultimately depend upon the fact whether the decree
obtained was a joint decree or a separate one. This question, in our considered
view, cannot and should not also be decided merely on the format of the
decree under challenge or it being one or the manner in which it was dealt
with before or by the Court, which passed it. It may usefully be noticed at
C this stage that the decision in Harihar Prasad's case (supra) wherein the
principles have been considered elaborately in the light of the overall
distinguishing features from an aspect very relevant for the purpose of the
cases before us·, specifically adverted to the decision in Ram Swarup 's case
(supra) of the Constitution Bench as also the unrepo1ied decisions in Jhingan
D Singh 's case (supra) and Kishan Singh 's case (supra) and distinguished them
with observations as hereunder:-
"We do not think that the decision relied upon by the appellants in
Jhinghan Singh and Anr. etc. v. Singheshwar Singh and Ors. etc.,
(C.A. Nos.114-122 of 1958 decided on 20.4.1965) helps the appellants.
In that case Singheshwar Singh was one of the appellants in C.A.
E Nos.114 and 115 and respondent in the other appeals. Kaushal Kishore
Prasad Singh was one of the appellants in C.A. Nos. 116 and 117 and
a respondent in the other appeals. Both of them died and the pending
appeals abated against them. The contesting respondents took the
preliminary objection that all the appeals had become defective for
F non-joinder of the legal representatives of Singheshwar Singh and
Kaushal Kishore Prasad Singh and this objection was accepted. The
decision proceeded on !he basis !hat the plainls in the several suils
raised a dispute be/ween a body of landholders claiming Khas
possession of the lands and a number of persons claiming to be
occupancy tenants thereof Iha! in substance, the plaintiffs asked for
G an adjudication that the land1 were bakasht and !he first party
defendants were not occupancy tenants and to such suits all the
landholders l\;ere necessaiy parlies. It was therefore held that as in
the appeals before this Court the landholders claimed the same relief,
which they sought in the trial court and in those appeals also
H Singheshwar ~ingh and Kaushal Kishore Prasad Singh, were necessary
S. AMARJ!TSINGH KALRA v. PRAMODGUPTA [RAJU, J.] 381
parties, in the absence of their legal representatives the appeals were A
not maintainable. It would be seen that the two appellants whose
legal representatives were not added as parties were parties in all the
four suits and in all the four appeals and the question was a common
question to which all the landholders were necessary parties. As we
have explained earlier that is not the position here.
B
The decision in Kishan Singh and Ors. v. Nidhan Singh and
Ors., (C.A.No.563of1962 decided on 14-12-1964) and the statement
of law laid down by this Court therein in the following terms : ·
"Mr. Bishan Narain points out that in substance, the present suit
is between the landholders on the one hand and those who claimed C
to be occupancy tenants on the other. It is true that the plaint
alleges that the occupancy rights were extinguished on the death
of the last occupancy tenant Narain Singh, but that has been
denied by the appellants, and in fact, round this dispute the whole
controversy centers in the present suit. There is no doubt that the D
allegations made in the plaint clearly show that the dispute is
between the landholders and the person who claim to be .
occupancy tenants and so, it is plain that in such a dispute the
whole interest of the landholders and the whole interest of the
tenants must be adequately represented The tenancy rights, which
the appellants claim, are no doubt based on the presumption E
under Section 5(2) of the Tenancy Act. But the relationship in
respect of which the said presumption would arise is a relationship
of landlord and tenant, and this relationship in the very nature
of things is one and indivisible. Therefore, when a claim is made
to evict the persons who allege that they are tenants the whole F
of the landlord's interest must be before the Court. "
was cited with approval in Jhinghan Singh and Anr. etc. v.
Singheshwar Singh and Ors. etc., (supra). It does not, therefore, stand
on any different footing." (Emphasis supplied)
The question, therefore, as to when a proceeding before the Court G.,.
becomes or rendered impossible or possible to be proceeded with, after it had
partially abated on account of the death of one or the other party on either
side has been always considered to depend upon the fact as to whether the
decree obtained is a joint decree or a severable one and that in case of a joint
and inseverable decree if the appeal abated against one or the other, the same H
382 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A cannot be proceeded with further for or against the remaining parties as well.
If otherwise, the decree is a joint and several or separable one, being in
substance and reality a combination of many decrees, there can be no
impediment for the proceedings being proceeded with among or against those
remaining parties other than the deceased. As observed in Nathu Ram's case
(supra) itself, the code does not itself provide for the abatement of the appeal
B against the other respondents even where, as against one such it has abated
but it is only the Courts which have held that in certain circumstances the
appeal also would abate against a co-respondent as a result of abatement
against the deceased respondent. The same would be the position of an appeal
vis-a-vis the appellants, as in the other cases. Order 22 Rule 4 also was
C considered not to provide for abatement of the appeal(s) against the co-
respondents of the deceased respondent and it was specifically observed therein
that to say that the appeals against them also abated in ce1tain circumstances
is not a correct statement. It was held that the appeals against such other
respondents cannot be proceeded against and, therefore, had to be dismissed,
in certain circumstances.
D
But, in our view also, as to what those circumstances are to be, cannot
be exhaustively enumerated and no hard and fast rule for invariable application
can be devised. With the march and progress of law, the new horizons explored
and modalities discerned and the fact that the procedural laws must be liberally
E construed to really serve as handmaid, make it workable and advance the
ends of justice, technical objections which tend to be stumbling blocks to
defeat and deny substantial and effective justice should be strictly viewed for
being discouraged, except where the mandate of law, inevitably necessitates
it. Consequently, having regard to the nature of the proceedings under the
Act and the purpose of reference proceedings and the appeal therefrom, the
F Courts should adopt a liberal approach in the matter of condonation of the
delay as well as the considerations which should weigh in adjudging nature
of the decree, i.e., whether it is joint and inseverable or joint and severable
or separable. The fact that the Reference Court has chosen to pass a decree
jointly in the matters before us is and should be no ground by itself to
G construe the decree to be joint and inseparable. At times, as in the cases on
hand, the Court for its convenience might have combined the claims for joint
consideration on account of similar nature of the issues in all such cases and
for that reason the parties should not be penalized, for no fault of them. Actus
curiae neminem gravabit (an act of Court shall prejudice no one) is the
maxim of law, which comes into play in such situations. Number of people,
H more for the sake of convenience, may be counselled to join together to
S. AMARJIT SINGH KALRA v. PRAM OD GUPTA [RAJU, J.] 383
ventilate, all their separate but similar nature of claims and this also should A
not result in the claims of all such otht>rs being rejected merely because one
or. the other of such claims by one or more of the parties abated on account
of death and consequent omission to bring on record the legal heirs of the
deceased party. At times one or the other parties on either side in a litigation
involving several claims or more than one, pertaining to their individual B
rights may settle among themselves the dispute to the extent of their share or
proportion of rights are concerned and may drop out of contest, bringing
even the proceedings to a conclusion so far as they are concerned. If all such
move is allowed to boomerang adversely on the rights of the remaining
parties even to contest and have their claims adjudicated on merits, it would
be a travesty of administration of justice itself. C
The area of differences in the catena of decisions brought to our notice
is not so much with reference to the principles to be applied to different
nature of decrees but only as to which of the decree(s) falls, when or under
what circumstances under one or the other of the classification, i.e., joint and
inseverable or joint and severable or separable. This aspect seems to have D
been adjudged in different cases depending upon the nature/source of rights,
the cause of action, the manner they were asserted by the parties themselves
and the contradictory nature of decrees impossible of execution, likely to
result when considered differently. It is for this reason any standardised
formula was avoided and matter left for the consideration of Courts, on the E
peculiar nature of the cases coming for determination. Having regard to the
peculiar facts and circumstances noticed by us that the claimants appellants
have each their own distinct, separate and independent rights, the principles
enumerated in.Harihar Prasad's case (supra) and Indian Oxygen Ltd. case
(supra) squarely apply with all force. The appeals even dehors the claims of F
the deceased and others who have not chosen to approach the High Court or
this Court, were neither rendered incapable of consideration nor impossible
of according any relief or could be held difficult to enforce the decree that
may be passed, in favour of the remaining appellants without suffering the
vice of inconsistency. Even if it is likely to result in two different sets of
judgments of varying content, purport or reason, as long as the enforcement G
of the decrees passed therein are not rendered impossible due to mutual
contradiction in terms of self-destructive nature, there is no justification
whatsoever to assume them to be inconsistent or contradictory decrees, at all.
The mere fact that in a set of similar or identical nature of cases two different
nature or type of decrees was necessitated is no reason to treat them to be H
inconsistent or contradictory decrees, so long as both can be executed and
384 SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.
A enforced without either of them being destructive of the other. Contradictory
or inconsistent decrees, consequently, could be held to have resulted only in
a given case when the relief granted in one cannot be enforced/realized
without denying the relief in the other or totally nullifying or setting at
naught the relief granted in the other, and in no other class of cases.
B 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
C 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 parties before
D it. The only exception to th is 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-ii-vis the other part, which
had become final. As far as possible Courts must always aim to preserve and
protect the rights of panies and extend help to enforce them rather than deny
E 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:-
F
(I) 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
G 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
H sought to be vindicated in one single proceedings, as the one
S. AMARJIT SINGH KALRA v. PRAMOD GUPTA [RAJU, J.] 385
now before us, under the Land Acquisition Act or ir• similar A
nature of proceedings and/or claims in assertion of individual
rights of parties are cluubed, consolidated and dealt with together
by the Courts concerned and asingle 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 B
as joint and inseparable decrees.
(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 C
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 D
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-it-vis the remaining
parties would suffer the vice of contradictory or inconsistent
decrees. For that reason, a decree can be said to be contradictory E
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.
The Award/decrees, which were the subject-matter of challenge before p
the High Court, in these cases, viewed in the light of the above conclusions,
would not render them to be a joint and inseparable decree but in substance
a mere combination of several decrees depending upon the number of claimants
before the Court and, therefore, joint and several or separable vis-a-vis the
individuals or their claims concerned. Consequently, even the abatement of
the appeal in the. High Court in respect of one or other of the appellants G
cannot by itself result in the abatement of the appeal in its entirety or render
it liable to be dismissed as not duly or properly constituted or not possible
to be proceeded with. The conclusions to the contrary arrived at by the High
Court and liable to be and are hereby set aside. That apart, since we have also
arrived at a conclusion that the rejection of the applications by the High H
386 SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.
A Court was erroneous, the orders passed by the High Court in this regard also
are set aside and the legal representatives of the deceased appellants before
the High Court are directed to be brought on record in the appeals before the
High Court.
For all the reasons stated above, we are unable to approve the decision
B or the manner of disposal given by the High Court in these cases, which
resulted· in grave injustice to the remaining appellants in denying them of
their right to have an adjudication of their claims on merits. The High Court
ought to have condoned the delay as prayed for, keeping in view the pendency
of the main appeals on its file, adopting a liberal and reasonable approach,
C which would have facilitated an effective adjudication of the rights of parties
on either side, avoiding summary rejection of the appeals in entirety. The
judgment and decrees passed by the High Court in all these appeals are set
aside and appeals are remitted to the High Court to be restored to their
original files for being disposed of afresh on merits of the claims of both
parties and in accordance with law. These appeals are allowed on the above
D terms, with ·no order as to costs.
The observations, if any, made in this judgment about the respective
claims of parties are merely for the sake of indicating the serious and disputed
nature of claims between the parties necessitating an effective adjudication·
on merits and not to be construed as any expression of opinion on any such
E claims which the High Court shall .be at liberty to deal with and dispose of
on their own merits, after hearing both parties, in accordance with law.
K.K.T. Appeals allowed.
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