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Jagdam Ram v. Asarfi Ram And Others
Factual and Procedural Background
The suit originated from a claim by ten persons under Order 1, Rule 8 of the Code of Civil Procedure (CPC) seeking a declaration of the public's right to use a piece of land and a well situated thereon, and for an order requiring the defendant to remove certain structures erected on that land. The trial court dismissed the suit, but the lower appellate court reversed that decision and decreed the suit in favor of the plaintiffs. The defendant then preferred a second appeal to this court. During the pendency of this appeal, two of the plaintiff-respondents died, and no steps were taken to substitute their legal representatives on the record. A preliminary objection was raised by the respondent claiming that the appeal had abated due to these deaths.
Legal Issues Presented
- Whether the death of some of the respondents in a representative suit under Order 1, Rule 8 of the CPC causes the appeal to abate.
- Whether substitution of legal representatives of deceased plaintiffs or defendants is necessary in a representative suit instituted or defended on behalf of numerous persons not on the record.
- The applicability of the provisions of Order 22 of the CPC relating to death of parties in the context of representative suits.
- Whether permission to proceed with the appeal against remaining respondents should be granted without notice to the public.
Arguments of the Parties
Respondent's Arguments
- The appeal has abated due to the death of some respondents, and therefore no further steps can be taken.
- Relied on a decision of a learned Judge of the Court in AIR 1935 Pat 430 to support the contention that the entire appeal had abated under similar circumstances.
- Relied on two decisions of the Lahore High Court (AIR 1925 Lah 1243 and AIR 1926 Lah 31) where appeals were held to have abated when legal representatives of deceased parties were not brought on record.
Court's Observations on Arguments
- The AIR 1935 Pat decision was distinguished as the appeal in that case was dismissed on merits and the observation on abatement was obiter dicta.
- The Lahore High Court decisions were found to be factually different, as those suits were not representative suits and involved all interested persons as parties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1935 Pat 430 | Whether death of some parties leads to abatement of appeal in representative suits. | Distinguished as obiter dicta and factually different; court rejected the contention that appeal abated on this basis. |
| 51 Mad 527 | Authority to proceed in appeal despite death of some respondents in representative suits. | Relied upon to allow appellant time to apply for permission to proceed against remaining respondents. |
| AIR 1925 Lah 1243 and AIR 1926 Lah 31 | Effect of death of parties in suits where all interested persons are parties but only some conduct the suit. | Distinguished on facts; these were not representative suits, so the principle did not apply here. |
| 48 IA 12 (Privy Council) | Death of one plaintiff in a representative suit under Section 92 of the CPC does not cause abatement. | Used as authority to support the view that death in representative suits does not cause abatement. |
| 133 IC 823 | Adding parties in suits instituted under Section 92 of the CPC when original plaintiffs die or collude. | Supported the proposition that abatement does not arise and court may add parties to continue suit. |
Court's Reasoning and Analysis
The Court analyzed the nature of suits instituted or defended by a few persons on behalf of numerous others under Order 1, Rule 8 of the CPC. It held that the death of one or more plaintiffs or defendants in such representative suits does not lead to abatement if their legal representatives are not brought on record. This is because the authority to sue or defend is personal and granted by the Court to specific individuals to act on behalf of the public or numerous persons not on record. The Court reasoned that substitution of legal representatives in such cases is not appropriate as the right to sue or be sued is not a personal right that devolves on the representatives but a delegated authority granted by the Court.
The Court distinguished this principle from cases where all interested persons are parties to the suit in their personal capacities, where death of a party requires substitution. It further held that provisions of Order 22 of the CPC concerning death of parties do not apply to representative suits under Order 1, Rule 8. The Court noted that if some authorized persons become incapable of conducting the suit, it is for the Court to decide whether remaining persons may proceed or additional persons should be added as parties, which constitutes addition and not substitution.
The Court also emphasized the necessity of notice to the public when permission is sought to proceed against remaining respondents, ensuring public awareness given the representative nature of the suit.
Holding and Implications
The Court held that the appeal has not abated due to the death of some respondents in a representative suit under Order 1, Rule 8 of the CPC.
The Court granted permission to proceed with the appeal against the remaining respondents, subject to notice being given to the public of the concerned village. The decision clarifies that death of parties in representative suits does not automatically cause abatement and that substitution of legal representatives is not required. This ruling preserves the continuity of representative litigation and ensures that the interests of the public or numerous persons represented continue to be protected without procedural disruption. No new precedent was set beyond the application of established principles to the facts of this case.
1. In this appeal a preliminary objection has been taken by the respondent to the effect that the appeal has abated on account of the death of some of the respondents. The suit out of which the appeal has arisen was instituted by ten persons under O. 1, R. 8 of the CPC, for a declaration of the right of the public to use a piece of land and a well situated thereon and for ordering the defendant to pull down certain structures erected by him on that land. The trial Court dismissed the suit, but on appeal by the plaintiffs the suit has been decreed by the lower appellate Court. The defendant has preferred this second appeal.
2. During the pendency of the appeal in this Court two of the plaintiff-respondents, i.e, Nos. 2 and 8, died and no steps were taken to substitute their legal representatives on the record. On 2nd August 1934 the learned Registrar noted that the appeal against respondent 8 had abated. No note has been made about the death of respondent 2. I do not take the note of the learned Registrar as a decision that the appeal against respondent 8 has abated. Such a decision can only be given by the Court. The case was placed before Varma, J., who without expressly deciding the question of abatement, on the authority of the decision in 51 Mad 5271 allowed the appellant time to take steps for applying for permission to proceed against the remaining respondents as representing the public under O. 1, R. 8 of the CPC. Mr. G.P Das, who appears on behalf of the respondents, however contends that the appeal has abated and no further steps can be taken. He has relied upon a decision of a learned Judge of this Court in AIR 1935 Pat 4302 in which under similar circumstances he held that the entire appeal had abated. First of all the appeal in that case was dismissed on merits and therefore the observation about its abatement of the appeal was in the nature of obiter dicta. Then it appears that both the parties took it for granted that the appeal had abated against the deceased respondents and the only question raised was whether it had abated as a whole. In my opinion death of one or more of several plaintiffs or defendants suing or being sued in a representative character does not lead to abatement of the suit if his or their legal representatives are not brought on the record. The same principle mutatis mutandis applies to appeals. A case instituted or defended on behalf of the public in which only some out of numerous persons interested in the right are parties, stands on quite a different footing from a suit for individual rights in which all the interested persons are parties. If numerous persons have the same interest in a suit the Court may permit only some of them to sue or be sued and defend in such suit on behalf of or for the benefit of all persons so interested. When the Court permits this the remaining interested persons are not on the record at all.
3. The nominees of the Court are the only persons who can sue or be sued and if one of them dies, there is no question of substitution of his representatives as the right of the deceased to sue or be sued does not devolve upon his personal representatives and they as such representatives cannot be substituted as parties to the suit. But if all the persons interested are parties but only some of them under O. 1, R. 8 have been permitted to defend the suit, death of some of the defendants will have a different effect, as all the defendants are on the record in their personal capacities. In the former case the position of those who figure as plaintiffs or defendants in the suit is that they claim or defend a right not only on behalf of themselves but on behalf of numerous interested persons. It is the permission of the Court which clothes them with authority to sue or be sued not only on their own behalf but on behalf of those also who are not parties to the suit. As has been pointed out in the Madras case above referred to, anomalies will arise if we hold that when a party suing or being sued in a representative capacity dies it is essential to bring his legal personal representatives on the record as party to the suit. The legal representatives of the deceased party for some reason or other become incapable of acting as representatives of the interested persons who are not on the record. If a Court gives permission to certain persons to prosecute or defend a suit on behalf of the public after notice to the public, they and they alone are authorized to act for the public. The authority is a personal authority eo nomine and cannot, in my opinion, be utilised by their personal legal representatives. In my opinion the provisions of O. 22, which relate to the death of plaintiff or defendant, cannot be applied to a case instituted or defended by a few persons on behalf of numerous persons not on record under O. 1, R. 8. In ordinary cases the parties act independent of any permission of any authority; but in cases like the present one or in a case instituted under Section 92 of the CPC, the authority of those who conduct or defend a suit is derived from the order of the Court or from the Advocate-General.
4. If the Court has permitted a certain number of persons to institute or defend a suit on behalf of others, and when some of them for some reason or other either by death or otherwise become incapable to conduct the suit, it is for the Court to order whether or not the remaining persons should be allowed to conduct the case, or whether more persons should be added as parties for this purpose. If others are brought on the record it is addition of parties and not substitution on devolution of interest. I am therefore in agreement with the reasons given by the learned Judge of the Madras High Court in the case above referred to that in such a case no question of abatement arises and the Court can permit the appellant to proceed with the appeal against the remaining respondents.
5. The learned advocate for the respondents has relied upon two decisions of the Lahore High Court, in AIR 1925 Lah 1243 and AIR 1926 Lah 31.4 But the facts of those cases were different. There all the interested persons were parties to the suit, but some of them only were permitted to conduct it. Some of the parties (not those who were permitted to conduct the suit on behalf of all) died and their representatives were not brought on record. The appeals were held to have abated. The suit in those cases was not representative suit. All the interested persons were parties. Only some of them were authorized to conduct the suit. Those cases have been referred to in the Madras case and I agree with the view taken by the learned Judge of that Court.
6. A suit instituted by some on behalf of numerous interested persons is analogous to a suit under Section 92 of the CPC. It has been held by the Privy Council in 48 IA 12,5 at p. 16 that in a suit instituted by two plaintiffs under Section 92 of the CPC, death of one of them was not fatal to the suit as it was a representative suit. In 133 IC 8236 the Bombay High Court held that if those who obtained the consent of the Advocate-General to institute a suit under Section 92 of the CPC, die or collude with the defendant the Court may add other persons as parties under O. 1, R. 10, and for this consent of the Advocate-General is not necessary. I express no opinion on the last point decided in the case as it is not before me. I am relying upon the case for the proposition that in such cases the question of abatement does not arise. I therefore hold that the appeal has not abated. Now an application has been filed by the appellants for permission to proceed with the appeal against the remaining respondents. The original permission granted by the trial Court to institute the suit was to 10 persons. Permission to prosecute the appeal against the remaining persons should not in my opinion be given without notice to the public of the village concerned. I, therefore, direct that a notice of this application, by publication in the village concerned, be given to the inhabitants of the locality. The appeal will come up for hearing after the return of service of the notice.
W.D/A.L
7. Order accordingly.
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