BANWARI LAL (D) BY LRS. &ANR.versusBALBIR SINGH

                    [2015] 14 S.C.R. 287


            BANWARI LAL (D) BY LRS. &ANR.                    A
                             v.
                      BALBIR SINGH
              (Civil Appeal No. 6567 of 2015)
                                                             B
                     AUGUST 25, 2015
        [T. S. THAKUR AND R. BANUMATHI, JJ.]
        Code of Civil Procedure, 1908..: Or. XX/{ - Manner in
 which the legal representatives of plaintiffs or defendants
 ought to be brought on record - Held: Rules of procedure C
 under Order XX/I 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 D
 facilitate the administration of justice and not to defeat the
 same.
      Sardar Amarjit Singh Ka/ra v. Pramod Gupta
      (2003) 3 sec 212 : 2002 (5) Suppl. scR 350;
                                                             E
      Sita/ Prasad Saxena (D) by Lrs. v. Union of India
      and Ors. (1985) 1 sec 163: 1985 (1) SCR 659
      -relied on.
                     Case Law Reference·
      2002 (5) Suppl. SCR 350 relied on         Para 10      F
      1985 (1) SCR 659             relied on     Para 11
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.
6567 of 2015.
     From the Judgment and Order dated 15.03.2013 of the G
High Court of Delhi at New Delhi in RSA No. 100 of 2008.
    A. Sharan, Sr. Adv., Viresh B. Saharya and Akshat
Agarwal, Advs. for the Appellants.
                                                             H
                            287
288         SUPREME COURT REPORTS                  [2015] 14 S.C.R.

                                                              '
A          R. Venkataramani, Sr. Adv., Santosh Kumar, Bundela,
      Mushtaq Ahmad, Advs. for the Respondent.
           The Judgment of the Court was delivered by
           R. BANUMATHI, J. 1. Leave graQted.
B        2. This appeal arises out of the order dated 15.03.2013
   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 CM Nos.6342/2008, 11811-
   11813/2009 and 1998/2012 to bring on record the legal
 C representatives of the appellants herein.
            3. Respoildent-Balbir Singh filed a suit bearing No.369/
      1986 against one Banwari Lal and Swaraj for declaration and
      permanent injunction. Case of respondent-plaintiff is that he is
      the owner of parcel of land measuring 600 sq. yards, bearing
D     plot 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. lllaqua Shahara, Delhi. The aforesaid parcel of
      land is also claimed by late Banwari Lal contending that the
      land was purchased by him on 25.09.1985 from one Premlata
 E    and her husband Chander Prakash. The trial court initially
      dismissed the suit vide judgment dated 13.02.1997. In the
      appeal, the first appellate court set aside the judgment arid
      decree passed by the trial court and the matter was remanded
      back to the trial court to decide the matter afresh. Trial court
 F    considered the entire matter afresh and again dismissed the
      suit bearing No.276/2004 of the respondenVBalbir Singh vide
      judgment dated 23.09.2005. RespondenVBalbir Singh again
      feeling aggrieved, preferred a fresh appeal bearing RCA
      No.226/2005 against the said judgment and the decree. First
 G    appellate court by judgment dated 04.02.2008 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 30.01.2006 that is
      almost two years prior to the date of judgment of the first
 H
         BANWARI LAL (D) BY LRS. v. BALBIR SINGH                    289
                   [R. BANUMATHI, J.]

   appellate court. Even though .Banwari Lal has expired on A
· 30.01.2006, no steps were taken to bring on record the legal
 · representatives of late Banwari Lal.
        4. 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        B
  the High Court of Delhi. During the pendency of the second
  appeal, appellant No.2-Swaraj also died on 02.12.2008.
        5. Second Appeal itself was dismissed for non
 .prosecution on 02.08.2010. Two applications were filed c
  bearing CM Nos.17569-17570/2010 for restoration and
  condonation of delay. On the basis of the said applications,
  the High Court had passed an order on 02.02.2012 restoring
  the second appeal to its original number. After restoration,
  the second appeal w~s dismissed by the High Court on the D
  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.
       Second appeal was purportedly filed on behalf of the legal E
       heirs of late Banwari Lal without there being any affidavit
       or Vakalatnama signed by any of them or no application
       under Order XXll Rule 3 CPC has been filed along with
       the appeal. The proceedings against Banwari Lal had ·
       abated even during the pend ency of the first appeal itself F
       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 02.12.2008
       and an order was passed on 06.0~.2009 that the second G
       appeal .abated qua the second appellant as no steps
       were taken.to bring on record his legal representatives.
        6. Second appellant-Swaraj died on 02.12.2008. CM
  Nos. 7034 of 2009 (under Order XXll Rule 9 CPC) and 7035          H
290        SUPREME COURT REPORTS                 (2015] 14 S.C.R.


A of 2009 (under Order XXll Rule 3 CPC) in RSA No.100/2008
  were filed to set aside the abatement against appellant No.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
B 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 order dated
  06.08.2009. It is clear from the combined reading of Order
C XXll 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. 1181112009
  (for condonation of delay), 11812/2009 (under Order XXll Rule
  9 CPC) and 11813/2009 (under Order XXll Rule 3 CPC)were
o filed to set aside the abatement caused due to the death of
  the second appellant-Swaraj. As noticed earlier, second appeal
  being RSA No.100/2008 was dismissed for non prosecution
  on 02.08.2010. By order dated 02.02.2012, the second appeal
  was restored to file on payment of cost of Rs.5,000/-. The
E relevant portion of the order reads as under:-
           " ... .In view of the reasoning given, the order dated
           02.08.2010 is recalled subject to costs of Rs.5000/-
           . The application stands disposed of.

 F
           RSA 100/2008 and CM 6342/2008 (for stay), 11811/
           2009 (for delay), 11812/2009 (u/o 22 R 9 CPC) and
           11813/2009 (u/o 22 R 3 CPC)

 G
           Since the appeal has been revived, the interim order
           dated 01.05.2008 also stands revived."
           It appears, even though second appeal was restored,
      no specific order was passed to restore the applications CM
 H    No.11811/2009, 11812/2009and 11813/2009.
            BANWARI LAL (D) BY LRS. v. BALBIR SINGH                      291
                      [R. BANUMATHI, J.]

           7. But the facts remain that three fresh applications A
.,   No.11811/2009, 11812/2009 (under OrderXXll Rule 9 CPC)
     and 1181.3/2009 (underOrderXXll Rule 3 CPC)were fried for
     condonation of delay and to set aside the abatement and to
     bring on record the legal representatives of appellant No.2-
     Swaraj. When the second appeal was restored to file, specific B
     order ought to have been passed restoring the above three
     applications and setting aside the abatement and the legal
     representatives of the appellant No.2 ought to have been_
     brought on record. Without passing specific order on those
     three applications, High Court was not right in dismissing the c
     second appeal as abated qua the second appellant.
            8. In so far as the first appellant late Banwari Lal, he died
     on 30.01.2006 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, D
     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 E
     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 F
     appellate court arid 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 ofsecond appeal
     and the defects should have been pointed out at that time. But G
     that was not to be so.
           9. 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/
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292         SUPREME COURT REPORTS                    [2015] 14S.C.R.


A     2012 (under Order I Rule 10 CPC read with Section 151 CPC)
      to implead (i) Shakuntala ~i) Gaurav (iii) Rachna and (iv) Manju.
      Civil Procedure Code Order XXll stipulates the manner in which
      the legal representatives of plaintiffs or defendants ought to
      be brought on record. The prescribed procedure cannot be
B     circumvented by filing application under Order I 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.
             10. Provisions of Order XXll CPC are not penal in nature.
      It is a rule of procedure and substantial rights of the parties
C     cannot be .defeated by pedantic approach by observing strict
      adherence to the procedural aspects of law. In Sardar Amarjit
      Singh Katra v. Pramod Gupta, (2003) 3 SCC 272, a Five
      Judge Bench of this Cour:t held as under:-
           "26. Laws of procedure are meant to regulate effectively,
D
           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
 E
           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
 F
           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.
G
           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
H
      BANWARI LAL (D) BY LRS. v. BALBIR SINGH                     293
                [R. BANUMATHI, J.]

      them had their own independent, distinct and separate A
      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
      should have, on the very perception it had on the question
      of abatement, allowed the applications for impleadment B
      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 ofthe other remaining appellants for
     ·no fault of theirs. Interests of justice would have been C
      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        o
      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 conformitv
      with the avowed object of the Court to do real. effective
      and substantial justice ... " (Underlining added) ·         E
       11. In Sita/ Prasad Saxena (D) by Lrs. v. Union oflndia
and Ors., (1985) 1SCC163, it was observed thatthe rules of....
procedure under Order XXll 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 F
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 G
powers and the impugned order cannot be sustained.
    12. In the result, the impugned order is set aside and this
appeal is allowed and the following directions are issued:-

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294         SUPREME COURT REPORTS                  [2015] 14S.C.R.


A          (i). Necessary applications were filed to bring on record
           the legal representatives of appellant No.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, the
           applications No. 6342/2008 (for stay), 1181112009 (for
B          condonation of delay), 11812/2009 (under Order XXll
           Rule 9 CPC) and 11813/2009 (underOrderXXll Rule 3
           CPC) are allowed and legal representatives of appellant
           No.2-Swaraj are ordered to be brought on record.
           (ii). CM No.1998/2012 filed under Order 1 Rule 10 CPC
c          is treated as an application under Order XXll 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.
D
           (iii). RSA No.100/2008 on the file of the High Court is
           ordered to be restored. Memorandum of 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
 E
           hearing to both parties and shall dispose of the second
           appeal in accordance with law as expeditiously as
           possible.
           In the facts and circumstances of the case, we make no
 F    order as to costs.


      Bibhuti Bhushan Bose                              Appeal allowed.