Sabitribai Debi v. Jugal Kishore Das

The Judgment of the Court was as follows:—

Ghose, J.:— These two second appeals arise out of two suits which, along with other two suits, were tried analogously. The two suits in question are Suit No. 17 of 1931 and Suit No. 72 of 1932. The Plaintiffs' case is that Mouza Daskalgram appertains to certain touzis which are held in ejamali by him and the pro formâ Defendants and that the Plaintiffs had 2 annas odd share in the land in Suit No. 17 and 4 annas odd share in the land in Suit No. 72. In the record-of-rights, however, the lands were erroneously recorded in Touzi No. 1247 which belongs exclusively to Defendant No. 1. The Plaintiffs' case is that the lands in Suit No. 17 appertain to eleven touzis and the lands, in the other suits appertain to ten touzis held jointly by them and the pro formâ, Defendants. They accordingly brought the suits for declaration of their title to the aforesaid lands and confirmation of possession. The only contesting Defendant is Defendant. No. 1. Her defence is that the record-of-rights is correct and that the lands appertain exclusively to her Touzi No. 1247. The Subordinate Judge gave a decree in favour of the Plaintiffs. Then there was an appeal by Defendant No. 1 alone. In that appeal she made all the Defendants parties Respondents. It appears that Defendant No. 6 who was Respondent No. 10 died on 22nd May, 1936 and an application for substitution of his heirs was not made until 10th October, 1936. On 21st December, 1936, the District Judge recorded an order in which he pointed out that the application for substitution of the heirs of Respondent No. 10 was made long after the statutory period of limitation. On the face of it, therefore, the appeal had abated as against deceased. Respondent No. 10. But the learned Judge went further and held that in view of the nature of the suits, the appeals could not abate in part and that, therefore, the appeals had abated in toto. He next made an order that the question whether the order of abatement should be set aside had to be determined for which purpose he fixed a date. Against that order, the present appeals have been filed.

It appears that in this Court on 11th November, 1937, an order was recorded stating that the Appellants did not wish to proceed with the appeals as against the Respondents other than the Respondents Nos. 1 to 5 and, therefore, the appeals would proceed against those Respondents only and would stand dismissed as against the other Respondents at the Appellants' risk.

For the Respondents, a preliminary point is taken that the appeal as now constituted is incompetent. The learned Advocate for the Appellant has conceded that he cannot get the benefit of Or. 41, r. 4 of the Code of Civil Procedure for the reason that there is no ground which is common to all the Defendants. But he has contended that the pro formâ Defendants Nos. 6 to 73 are not necessary parties, that the decision of the Courts below will not operate as res judicata as against them and that, therefore, the present appeals ean be heard in their absence. He has pointed out that these numerous Respondents Nos. 6 to 73 are only pro formâ Defendants who according to the Plaintiffs' case were made Defendants because they refused to join the Plaintiffs as co-Plaintiffs. There is no relief asked for against them and there is no issue framed as to the shares to which these pro formâ Defendants are entitled. The decree also makes no declaration of their shares. Mulla, in his commentary on sec. 11 of the Code of Civil Procedure, points out that a party may be joined as a Defendant in a suit merely because his presence is necessary in order to enable the Court to effectually and completely adjudicate upon the questions involved. In such a case, there is no matter in issue between him and any other party and the decision cannot, therefore, be res judicata as against him. (See page 64, 10th Edition, where the authorities are quoted). We have also been referred to a few more decisions on this subject. In [Krishna Kumar Deb v. Atul Chandra Ghose (1)] the Plaintiff sued for declaration of title and confirmation of possession in respect of his share, naming Defendants Nos. 11 and 12 as pro formâ Defendants, being his other co-sharers. Mukherji, J., held that a pro formâ Defendant need not be joined in appeal. To the same effect is the decision in the case of Sundar Ali v. Nur Mamud (2) and in the case of Madhusudan Chakravarti v. Satish Chandra Nag (3). In the present case, it seems to us, having regard to the pleadings, that we would be justified in holding that the pro formâ Defendants Nos. 6 to 73 were not interested in the result of the appeals and so the appeals as now constituted would not be incompetent.

Coming to the merits of the appeals, the first question is whether the order of 21st December, 1936, as it stands, is appealable. For the Respondents, stress is laid on the fact that the provisions of Or. 22, rr. 3 and 4 of the Code of Civil Procedure have undergone a change and that the words, “the suit shall abate” have been substituted for the words, “the Court may pass an order that the suit shall abate.” It is contended, therefore, that it is not necessary for the lower Court to make an order directing that the appeals had abated. This argument, however, overlooks, first, that the learned Judge below did choose in fact to make such an order and, secondly, that the order has been made not only with regard to the Respondent who had died but with regard to all the Respondents. It must he admitted that such an order comes within the definition of decree and as such is appealable. The learned Advocate for the Respondents at one stage of his argument conceded that there could be no objection to the order of the District Judge being set aside in so far as he held that the appeals had abated in toto. He suggested that the learned Judge should proceed with the second part of the decision, namely, to take up the questions whether the order of abatement should be set aside and after he had decided that question, he should be at liberty to decide further whether the appeals had abated in toto. It was, however, necessary for us to consider whether the learned Judge was justified in holding that the other Respondents were necessary parties to the appeals and, therefore, whether he was justified also in holding that the entire appeals had abated. The learned Advocate for the Respondents has relied strongly on the case of Naimuddin Biswas v. Maniraddin Laskar (4) but that was a case in which an appeal had abated in respect of one of several Defendants and the right to appeal did not survive to the remaining Appellants, which is not the position here. He has relied also on the case of Rai Harendra Nath Chaudhuri v. Dwijendra Nath Banerji (5), but that was a case under sec. 106 of the Bengal Tenancy Act in which considerations as to the joining of co-sharers are entirely different. It has been held under Or. 22, r. 4, C.P.C, that the omission to bring on record the legal representative of the Defendant against whom no relief is claimed does not cause the suit to abate. (See Mulla's Code of Civil Procedure, 10th Edition, page 867, where also the authorities are collected). In the present case, I have already held that the appeals are not incompetent by reason of the absence of those Respondents who are pro formâ Defendants. The same reasons will apply to the appeals in the Court below and in that view we set aside the decision of the learned Judge to the effect that the appeals had abated in toto.

The second appeals, therefore, succeed. There will be no order as to costs in these appeals.

The Rules stand discharged but without costs.

Patterson, J.:— I agree.

P.C