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Banwari Lal (Dead) By Legal Representatives And Another v. Balbir Singh .
Factual and Procedural Background
Respondent Balbir Singh filed Suit No. 369 of 1986 seeking declaration and permanent injunction over 600 sq. yds. of land in Village Karawal Nagar, Delhi. The land was also claimed by Banwari Lal, who asserted purchase on 25-9-1985 from Premlata and Chander Prakash.
The trial court dismissed the suit on 13-2-1997. On appeal the matter was remanded, but the trial court again dismissed the suit (Suit No. 276 of 2004) on 23-9-2005. Balbir Singh’s fresh appeal (RCA No. 226 of 2005) succeeded on 4-2-2008, reversing the dismissal.
During pendency of that first appeal, defendant Banwari Lal died on 30-1-2006; no legal representatives (LRs) were substituted. Banwari Lal (through purported LRs) and co-defendant Swaraj then filed Second Appeal RSA No. 100 of 2008 before the Delhi High Court. While that appeal was pending, Swaraj died on 2-12-2008, and no LRs were timely substituted. The High Court:
- Declared abatement against Swaraj on 6-8-2009.
- Dismissed the entire second appeal for non-prosecution on 2-8-2010.
- Restored the second appeal on 2-2-2012, but did not expressly revive the pending applications to set aside abatement and bring LRs on record.
- Ultimately dismissed the second appeal as abated on 15-3-2013, holding that no valid steps had been taken to substitute the LRs of either deceased appellant.
The present Supreme Court appeal challenges that High Court order.
Legal Issues Presented
- Whether the Delhi High Court was justified in holding that RSA No. 100 of 2008 had abated for failure to substitute the legal representatives of Banwari Lal and Swaraj.
- Whether applications already on record for condonation of delay, setting aside abatement, and substitution of legal representatives ought to have been allowed or revived when the second appeal itself was restored.
- Whether recourse to Order 1 Rule 10 CPC could validly cure the non-substitution, or whether strict compliance with Order 22 CPC was mandatory in the circumstances.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 | Order 22 CPC is procedural, intended to advance substantial justice; courts should adopt a flexible, constructive approach and not non-suit parties on technicalities. | Relied upon to emphasise that dismissal of the appeal purely on procedural grounds was unjust and that applications for substitution should have been favourably considered. |
| Sital Prasad Saxena v. Union of India, (1985) 1 SCC 163 | Rules under Order 22 are meant to advance justice; on sufficient cause delay in bringing LRs on record should be condoned. | Used to reinforce that the High Court’s strict view of abatement was contrary to the purposive approach mandated by precedent. |
Court's Reasoning and Analysis
1. The Supreme Court observed that fresh applications (CMs Nos. 11811, 11812 and 11813 of 2009) had in fact been filed for condonation of delay, setting aside abatement, and substitution of Swaraj’s LRs. When the High Court restored the second appeal on 2-2-2012, it should also have restored and decided these applications. Dismissing the appeal without disposing of them was erroneous.
2. As to Banwari Lal, the Court noted that his death occurred during the first appeal where Balbir Singh was the appellant; therefore the responsibility for substitution initially lay with Balbir Singh. Although the memo of second appeal listed Banwari Lal’s heirs without their signatures, the Registry did not flag this defect at filing. Given the procedural history, refusing substitution at the second-appeal stage would unfairly defeat adjudication on merits.
3. Citing the precedents, the Court stressed that Order 22 CPC is not penal; procedural rules must serve the ends of justice. A “pedantic approach” would unjustly deprive remaining parties of a merits determination.
4. The Court therefore converted the pending application under Order 1 Rule 10 CPC into one under Order 22 Rule 3 CPC for Banwari Lal, allowed all substitution and condonation applications, and directed that the second appeal be restored for decision on merits.
Holding and Implications
APPEAL ALLOWED; DELHI HIGH COURT ORDER DATED 15-3-2013 SET ASIDE; RSA NO. 100 OF 2008 RESTORED.
Consequences for the parties:
- Legal representatives of both deceased appellants (Banwari Lal and Swaraj) are brought on record.
- The memorandum of second appeal will be amended within four weeks and the Delhi High Court must now hear and dispose of the appeal on merits after affording the parties an opportunity to be heard.
Broader implications: The decision reiterates the Supreme Court’s long-standing view that procedural rules, particularly under Order 22 CPC, must be applied flexibly to promote substantive justice and should not operate as technical traps to defeat adjudication on the merits; however, it sets no new legal precedent beyond reaffirming this principle.
R. Banumathi, J.— Leave granted. This appeal arises out of the order dated 15-3-2013 2013 SCC OnLine Del 6406 passed by the High Court of Delhi dismissing the second appeal being RSA No. 100 of 2008 as abated and also the interlocutory applications being CMs Nos. 6342 of 2008, 11811-13 of 2009 and 1998 of 2012 to bring on record the legal representatives of the appellants herein.
2. Respondent Balbir Singh filed a suit bearing No. 369 of 1986 against one Banwari Lal and Swaraj for declaration and permanent injunction. Case of the respondent-plaintiff is that he is the owner of parcel of land measuring 600 sq yd, bearing Plots Nos. 5, 6 and 7 out of Rect. No. 42, Kila No. 5/1 situated in the area of Village Karawal Nagar, Delhi in the abadi of Prem Nagar Extn. Illaqua Shahara, Delhi. The aforesaid parcel of land is also claimed by late Banwari Lal contending that the land was purchased by him on 25-9-1985 from one Premlata and her husband Chander Prakash. The trial court initially dismissed the suit vide the judgment dated 13-2-1997. In the appeal, the first appellate court set aside the judgment and decree passed by the trial court and the matter was remanded back to the trial court to decide the matter afresh. The trial court considered the entire matter afresh and again dismissed the suit bearing No. 276 of 2004 of the respondent Balbir Singh vide the judgment dated 23-9-2005. Respondent Balbir Singh again feeling aggrieved, preferred a fresh appeal bearing RCA No. 226 of 2005 against the said judgment and the decree. The first appellate court by the judgment dated 4-2-2008 set aside the judgment and decree passed by the trial court and allowed the appeal of Balbir Singh. During the pendency of the first appeal, defendant Banwari Lal died on 30-1-2006 that is almost two years prior to the date of judgment of the first appellate court. Even though Banwari Lal has expired on 30-1-2006, no steps were taken to bring on record the legal representatives of late Banwari Lal.
3. Being aggrieved by the judgment of the first appellate court, Banwari Lal represented by his legal representatives and the second appellant Swaraj filed second appeal before the High Court of Delhi. During the pendency of the second appeal, Appellant 2 Swaraj also died on 2-12-2008.
4. The second appeal itself was dismissed for non-prosecution on 2-8-2010 RSA No. 100 of 2008. Two applications were filed bearing CMs Nos. 17569-70 of 2010 for restoration and condonation of delay. On the basis of the said applications, the High Court had passed an order on 2-2-2012 RSA No. 100 of 2008 restoring the second appeal to its original number. After restoration, the second appeal was dismissed by the High Court on the following grounds:
(i) The appellants have not taken steps to bring on record the legal representatives of Banwari Lal either in the first appeal or at the time when the second appeal was filed. The second appeal was purportedly filed on behalf of the legal heirs of late Banwari Lal without there being any affidavit or Vakalatnama signed by any of them or no application under Order 22 Rule 3 CPC has been filed along with the appeal. The proceedings against Banwari Lal had abated even during the pendency of the first appeal itself and it was improper on the part of the appellants to have mentioned the names of legal heirs of Banwari Lal in the memo of second appeal.
(ii) Second appellant Swaraj also died on 2-12-2008 and an order was passed on 6-8-2009 RSA No. 100 of 2007 that the second appeal abated qua the second appellant as no steps were taken to bring on record his legal representatives.
5. Second appellant Swaraj died on 2-12-2008. CMs Nos. 7034 of 2009 (under Order 22 Rule 9 CPC) and 7035 of 2009 (under Order 22 Rule 3 CPC) in RSA No. 100 of 2008 were filed to set aside the abatement against Appellant 2 and also to bring on record the legal representatives of the second appellant. Since application for condonation of delay in filing the applications was not filed, those applications were withdrawn with liberty to file a fresh application. Since fresh applications were not filed to bring on record the legal representatives of the second appellant, the second appeal was dismissed qua the second appellant by the order dated 6-8-2009. It is clear from the combined reading of Order 22 Rules 3, 4 and 11 CPC that the doctrine of abatement is applicable equally to a suit as well as to an appeal. It is seen from the records that fresh applications viz. CMs Nos. 11811 of 2009 (for condonation of delay), 11812 of 2009 (under Order 22 Rule 9 CPC) and 11813 of 2009 (under Order 22 Rule 3 CPC) were filed to set aside the abatement caused due to the death of the second appellant Swaraj. As noticed earlier, second appeal being RSA No. 100 of 2008 was dismissed for non-prosecution on 2-8-2010 RSA No. 100 of 2008. By the order dated 2-2-2012 RSA No. 100 of 2008, the second appeal was restored to file on payment of cost of Rs 5000. The relevant portion of the order reads as under:
“…. In view of the reasoning given, the order dated 2-8-2010 is recalled subject to costs of Rs 5000. The application stands disposed of.
***
RSA No. 100 of 2008 and CMs Nos. 6342 of 2008 (for stay), 11811 of 2009 (for delay), 11812 of 2009 (under Order 22 Rule 9 CPC) and 11813 of 2009 (under Order 22 Rule 3 CPC).
***
Since the appeal has been revived, the interim order dated 1-5-2008 also stands revived.”
It appears, even though the second appeal was restored, no specific order was passed to restore the applications CMs Nos. 11811, 11812 and 11813 of 2009.
6. But the facts remain that three fresh Applications Nos. 11811 of 2009, 11812 of 2009 (under Order 22 Rule 9 CPC) and 11813 of 2009 (under Order 22 Rule 3 CPC) were filed for condonation of delay and to set aside the abatement and to bring on record the legal representatives of Appellant 2 Swaraj. When the second appeal was restored to file, specific order ought to have been passed restoring the above three applications and setting aside the abatement and the legal representatives of Appellant 2 ought to have been brought on record. Without passing specific order on those three applications, the High Court was not right in dismissing the second appeal as abated qua the second appellant.
7. Insofar as the first appellant late Banwari Lal is concerned, he died on 30-1-2006 during the pendency of the first appeal and in the first appellate court no steps were taken to bring on record the legal representatives of late Banwari Lal. In the first appeal, respondent Balbir Singh was the appellant and it was his responsibility to bring on record the legal representatives of late Banwari Lal. When the second appeal was filed, memo of appeal contained the names of legal representatives of late Banwari Lal. It may be that legal representatives have not signed memo of appeal. In the first appeal, if the legal representatives of Banwari Lal were brought on record, the cause-title in the decree of the first appellate court would have carried the names of legal heirs of late Banwari Lal. There would have been discrepancy between the decree of the first appellate court and the memo of the second appeal. When the second appeal was filed, the High Court Registry should have checked up the names of the parties as occurred in the decree of the courts below and the memo of second appeal and the defects should have been pointed out at that time. But that was not to be so.
8. Since no steps were taken to bring on record the legal representatives of late Banwari Lal either in the first appeal or in the second appeal, the appellants have filed CM No. 1998 of 2012 (under Order 1 Rule 10 CPC read with Section 151 CPC) to implead (i) Shakuntala; (ii) Gaurav; (iii) Rachna; and (iv) Manju. Civil Procedure Code Order 22 stipulates the manner in which the legal representatives of the plaintiffs or the defendants ought to be brought on record. The prescribed procedure cannot be circumvented by filing application under Order 1 Rule 10 CPC read with Section 151 CPC. However, in our view, it would be unjust to non-suit the appellants on the ground of technicalities.
9. Provisions of Order 22 CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta (2003) 3 SCC 272, a five-Judge Bench of this Court held as under:
“26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in 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 provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court 1991 SCC OnLine Del 131, (1991) 20 DRJ 337 should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing 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 the Court to do real, effective and substantial justice.”
(emphasis supplied)
10. In Sital Prasad Saxena v. Union of India (1985) 1 SCC 163, it was observed that the rules of procedure under Order 22 CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order 2013 SCC OnLine Del 6406 cannot be sustained.
11. In the result, the impugned order 2013 SCC OnLine Del 6406 is set aside and this appeal is allowed and the following directions are issued:
11.1. Necessary applications were filed to bring on record the legal representatives of Appellant 2 Swaraj. Since the suit is of the year 1986 and the second appeal is of the year 2008 and in the interest of justice, Applications Nos. 6342 of 2008 (for stay), 11811 of 2009 (for condonation of delay), 11812 of 2009 (under Order 22 Rule 9 CPC) and 11813 of 2009 (under Order 22 Rule 3 CPC) are allowed and legal representatives of Appellant 2 Swaraj are ordered to be brought on record.
11.2. CM No. 1998 of 2012 filed under Order 1 Rule 10 CPC is treated as an application under Order 22 Rule 3 CPC. The legal representatives of late Banwari Lal viz. (i) Shakuntala; (ii) Gaurav; (iii) Rachna; and (iv) Manju are ordered to be brought on record and the application is allowed.
11.3. RSA No. 100 of 2008 on the file of the High Court is ordered to be restored. Memorandum of the second appeal be suitably amended and amended memo of appeal shall be filed before the High Court within four weeks. The High Court shall afford sufficient opportunity of hearing to both parties and shall dispose of the second appeal in accordance with law as expeditiously as possible.
12. In the facts and circumstances of the case, we make no order as to costs.
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