Holding

The Supreme Court dismissed the appeals, holding that the High Court's orders should not be interfered with and the technical error does not merit Supreme Court intervention.

Summary

The plaintiff sought vacant and peaceful possession of a Delhi property, but the suit was dismissed. The plaintiff appealed, and during the first appeal the sole defendant died. An application for substitution of the defendant’s legal heirs was filed but remained pending, and the decree was erroneously drawn up against the deceased. The second appeal upheld the decree, but it could not be executed because the deceased was not substituted. The High Court allowed applications to rectify the decree and amend the memo of parties, directing a fresh decree naming the correct parties. The Supreme Court considered whether such High Court orders warranted interference under Article 136 and whether the technical error should be corrected. Applying the maxim *actus curiae neminem gravabit*, the Court held that the High Court’s orders should not be disturbed and dismissed the appeals.

Issues considered

Whether the High Court could amend the decree and memo of parties after a decree was drawn up against a deceased defendant.
Whether the Supreme Court should intervene under Article 136 of the Constitution to correct the technical defect.
Whether the maxim *actus curiae neminem gravabit* applies to prevent prejudice to the parties due to a court’s inadvertent error.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 3, s. Section 151

Subjects

vacant possessionsubstitution of legal heirsdecree rectificationtechnicalityactus curiae neminem gravabitArticle 136CPC Order 22 Rule 3Section 151decree executionappellate jurisdiction

Judgment

[2008] 16 S.C.R. 712

A · OMPRAKASH MARWAHA·(D) THR. LRS. & ORS.
v.
JAGDISH LAL MARWAHA (D) THR. LRS.
(Civil Appeal No. 6850-6851 of 2008)
.NOVEMBER 26, 2006
B
[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.] ,,

Code of Civil Procedure, 1f}08: 0. XU r. 3 -Amendment
of memorandum - Decree in first appeal drawn up against
C original defendant who had expired even though application
for substitution of legal heirs of original defendant was filed
and same remained pending - Decree upheld by High Court
in second appeal but its execution could not be carried out -
Application for rectification of decree drawn up - Allowed by
D High Court and Registry directed to draw up the decree in
second appeal mentioning names of parties of appeal when
it was finally disposed of - Applications by legal
representatives .of plaintiff for bringing them on record also
allowed - Directions by High Court to amend the memo of
E · parties - Interference with - Held: Not called for - Act of court
should do no harm to litigant - Heirs of plaintiffs and
defendants were duly represented before High Court in
second appeal - Technicality prevented heirs of plaintiff from
enjoying benefits of the decree passed in their favour- 0.22,
F r.3 rlw s.151. ..
Maxims: Actus curie neminem gravabit - Act of Court +-
should do no harm to a litigant - Applicability of.

The plaintiff-JL, predecessor in interest of
G respondents filed suit for vacant and peaceful
possession of the property against the original
defendant. The suit was dismissed. JL filed first appeal.
During pendency, the original defendant died. The
plaintiff filed application for substitution of legal heir_s but
H 7~
OM PRAKASH MARWAHA (D),THR. LRS. & ORS. v. JAGDISH 713
LAL MARWAHA (D) THR. LRS.

>- it remained pending. The heirs of the original defendant A
were not brought on record and the decree was passed·
against the original defendant. The second appeal was
also dismissed. However, the decree passed by first
appeUate court and upheld by High Court in second
appeal could not be executed. The legal heirs of plaintiff- B
.... decree holder in the second appeal then filed application
for rectification of the judgment and decree drawn up and
'T
the same was allowed. The Registry of High Court was
directed to draw up the decree in terms of second appeal
mentioning the names of the parties of the appeal at the c
time the same was finally disposed of. Meanwhile,
applications were also filed by legal representatives of JL
for bringing them on record as legal representatives of
deceased-plaintiff and for condonation of delay in making .
the application. High Court allowed the applications and D
directed the memo of parties to be amended accordingly.
Hence, the present appeals.
~

y Dismissing the appeals, the Court
HELD : 1.1 The original defendant had died during E
the pendency of the First Appeal, bu,t it is equally
important that an application for substitution of his legal
heirs -had been made though no order has been passed
thereupon and a decree was consequently drawn up
against the original defendant who had already expired. F
• The legal heirs of the plaintiff had brought the fact of the
+ death of the sole defendant to the notice of the Court, but
it is through sheer inadvertence thaUhe substitution was
not effected. However, in the Second Appeal, the legal
representatives of the original plaintiff were made parties
G
by the heirs of the deceased defe·ndant, who ·are the
appellants. The heirs of both the plaintiffs and the
defendants were, therefore, duly represented before the
High Court in the Second Appeal and it is essentially a
technicality which prevented the heirs of the plaintiff from
H
714 SUPREME COURT REPORTS [2008] 16 S.C.R.

A enjoying the benefits of the ~ecree passed in favour of
th_~ plaintiff. This .is a fit c.as~ where applying the maxim .
actus curiae neminem gravabit-an act of Court should do .
no. h~um t~ a litigant, interference with the orders passed
by, the High.Court is not called for. [Paras 13 and 14] [718-
B E-H; 719-A-B] . .

Jang Singh vs Brij Lal AIR 1966 SC 1631 and N.
Suriyakala vs A Mohahdoss 2007 (9) SCC 1960, relied on.

Case Law Reference:
c
AIR 1S6fSC 1631 Relied on Para 11
2oot (9) sec 1960 Relied on Para 11

CIVIL AP PELLATE JURISDICTION : Civil Appeal Nos.
D 6850-6851_ of 2008. -

· From the final Judgment and Order dated 23.1.2004 of the
High Court of Delhi at New Delhi in C.M. No. 584-585 of 2003 ~
in RSA No. 126 of 1989. of

E . WITH ..
C.A. No. 6852 of 2008
Harnen and va·rind~r Kumar Sharma for the Appellants.
F T.L.V. Iyer. T.P. vrnod and M.K. Miehael for the
Re~pondents.

The Judgment of the Court was delivered by_
+
AL TAMAS KABIR, J. 1. Leave granted in both the
Special Leave Petitions wherein. the parties are the same and
G both arise· out of orders passed by th~ Delhi High Cour~ in RSA _
No. f26 cif 1989.
2. The appellants herein are the legal representatives of
the original defendant; Nanak Chand in a suit brought against
H himby'Jagdish L~I Marwaha, the predecessor-in-interest of the
OM PRAKASH MARWAHA (D) THR. LRS. & OR~. v. JAGDISH 715
LAL MARWAHA (D) THR. LRS. [ALTAMAS KABIR, J.]
respondents, to makeover vacant and peaceful possession of A
quarter No. 37-38, Block No. C-1, M~lkaganj, Delhi, and,
thereafter, not to interfere with the plaintiffs possession therein.
On the suit being dismissed, the plaintiff, Jagdish Lal Matwaha,
filed a First Appeal in the Court of Additional District Judge.
While the First Appeal was pending, Nanak Chand died on 3rd B
January, 1985, and apparently an application for substitution of
....
his legal heirs was made in the pending appeal. The said
~ application, however, remained pending and undisposed of,
though the appeal was finally decided. Consequently, although,
an application had been made for substitution, the heirs of c
deceased, Nanak Chand, were not brought on record in the
first appeal and as a result when the decree was drawn up it
was drawn up against Nanak Chand, who, as mentioned
hereinabove had died during the ~endency of the appeal.,,

3. Although, no formal orc;te~of substitUt,ion had been made, D
the legal representatives of Nanak Chand filed a second appeal
before the High Court, which was ultimately dismissed on 12th
• December, 1991, with the judgment and decree of the First
r
Appellate Court being affirmed. However, since the legal heirs
of deceased Nanak Chand he?d not been brought on the E
records of the first appeal, a decree in terms of the judgment
passed by the High Court in the Regular Second Appeal could
not be drawn up and as a result, the decree passed by the First
Appellate Court and affirmed by the High Court in second
appeal could not be executed. An application, being CM 2873 F
• of 1998, was thereupon filed by the legal heirs of the plaintiff
.+ decree-holder in the second appeal praying for rectification of
the judgment and decree drawn up by the First Appellate Court
or in the alternative to draw-up a fresh decree in the second
appeal in terms of the order dated 12th December, 1991, G
dismissing the appeal.
....
4. The aforesaid application was strongly opposed on
behalf of the respondents on the ground of maintainability. \twas·
alleged that the applicants had no locus standi to file an
H

t
716 SUPREME COURT REPORTS [2008] 16 S.C.R.

A application, as they were not the legal representatives of the
plaintiff, Jagdisti Lal Marwaha.

·5. The aforesaid submission did not find favour with the·
High Court since by an order dated 23rd January, 2004, they
had been substituted in place of the original plaintiff, Jagdish
B
Lal Marwaha as his legal representatives. Furthermore, when
the appeal was dismissed on 12th December, 1991, they were
.
parties to the appeal. The application was, therefore, allowed ·~

with a direction upon the Registry of the High Court to draw up
the decree in the second appeal mentioning the names of the
c parties of the appeal at the time the same was finally disposed
of. The said order is the subject matter of challenge in SLP(C)
No. 3856 of 2007, which is being heard along with SLP(C) No.
7099-7100 of 2008.

D 6; At this juncture, it may be stated that two applications,
being CM Nos. 584 and 585 of 2003, were filed by the legal ·
representatives of Jagdish (al Marwaha, the plaintiff in the suit, 4

for bringing them on record as the legal representatives of the 1
deceased plaintiff and for condonation of delay in making the
E application. It was sought to be explained that since an
application had already been made under Order 22· Rule 3 read
with Section 151 of the Code of Civil Procedure, on which no
order had been passed, the applicants had been advised that
they .were not required to file a separate application for the
F same purpose. Accepting the explanation, the Delhi High Court •
allowed both the applications and directed the Memo of Parties
to be amended accordingly. SLP(C) Nos. 7099-7100 of 2008 +
was filed against the said order of the High Court.

7. Appearing for the appellants, Mr. Hasnain, learned
G advocate, urged that once the second appea1 had been
disposed of, it was no longer open to the High Court to )-

entertain ·the several applications filed on behalf of the plaintiffs/ +
respondents to allow the heirs of the deceased-plaintiff to rectify
the cause~title of the said appeal. Mr. Hasnain submitted that
H
o'M PRAKASH MARWAHA (0) THR. LRS. & ORS. v. JAGDISH 717
LAL MARWAHA (D) THR. LRS, [ALTAMAS KABIR, J.]

when the first appeal filed by the plaintiff had been allowed and A
the judgment of dismissal of the suit had been reversed, and,
thereafter, confirmed in second appeal and the review therefrom-
had been dismissed, it was no longer within the jurisdiction of
the High Court to allow the decree of the first appeal to be
amended when the same had been drawn up against a dead B
man.
--
'!" 8. Mr. Hasnain submitted that the procedure adopted by
the High Court was not in consonance with law and legal
procedur.es and the orders impugned therein were, therefore,
liable to be set aside.
c
9. Appearing for the respondents, Mr. Iyer, learned senior
advocate, submitted that undoubtedly the suit filed by the ·
predecessor-in-interest of the respondent was decreed in the
First Appeal. The said decree was also confirmed by the High D
Court in Second Appeal:i.earned counsel submitted that apart
> from the above, an application had been duly made by the
)' plaintiff for substitution of the deceased defendant, but through
inadvertence no order had been passed thereupon and the '
decree came to be drawn up agRinst Nanak Chand, who had E
died.

10. Mr. _Iyer submitted that since the default leading to the
passing of the decree against a dead person was not wholly
on account of any negligence on the part of the plaintiff or his
" -4 F
legal heirs, they should not be made to suffer o_n account of
such technicality and there was, therefore, no reason for this
Court to intervene in the matter under Article 136 of the
Constitution.

11. In support of his submission, Mr. Iyer firstly referred to G
.._
a decision of a Three-Judge Bench of this Court in Jang Singh
vs. Brij Lal, [AIR 1966 SC 1631] wherein this Court was called
upon to consider whether a litigant should suffer on account of
the lapse made by an officer of the Court. Applying the well
known maxim, actus curiae neminem gravabit - that an act of H
718 SUPREME COURT REPORTS [2008] 1{f s:c.R.

A Court should do no harrri to a litigan( this Court held that the
mistake shc;>uld be rectified by the ·court and the parties
relegated to the position on the date when the mistake
occurred.,Mr. Iyer also referred to the decision of this Court in
N. Suriyakala vs. A. Mohandoss, (2007 (9) SCC 1960) where,
B in considering the scope and object of Article 136 of the··
Constitution, it was explained that the same was a residual ·
provision which enabled this Court to interfere with the judgment
and orde~ of any Court or Tribunal in India in its discretion ..
Laying emphasis on the phrase "in its discretion", this Court
c. held that jurisdiction under Article. 136 was meant to deal with
important issues and to deal with important questions relating
to the Constitution or the law or where grave injustice. had been
done.

12. Mr. Iyer submitted that this was r:iot a case which called
D for any interference by this Court under Article 136 of the
Constitution. ·

13. Having carefully considered the submissions made on
behalf of the respective parties,· we are also inclined to hold
E that the facts of this case do not warrant any interference with
the orders impugned in these two appeals. Admittedly, the
original defendant, Nanak Chand, hap died during the
pendency of the First Appeal, but it is equally imp.ortant that an
application for substitution of his legal 'heirs had been made
though no order has been passed thereupon and a decree was
F consequently drawn up against the original defendant who had +- i

already expired. The legal heirs of the plaintiff had brought the
fact of the death of the sole defendant tb the notice of the Court,
but it is through sheer inadvertence that the substitution was not
G effect13d. However, in the Second Appeal, the legal
representatives of.the original plaintiff, Jagdish Lal Marwaha,
were made parties by. the heirs· of the deceased- defendant,
Nanak C.hand, who are the appellants herein. The heirs of both
the plaintiffs and the defendants were, therefore, c:luly
represented pefore the High Court in the Second Appeal and
H
OM PRAKASH MARWAHA (D) THR. LRS. & ORS. v. JAGDISH 719
LAL MARWAHA (D) THR. LRS. [ALTAMAS KABIR, J.]

it is essentially a technicality which has prevented the heirs of A
the pfaintiff from enjoying the benefits of the decree passed in
favour of the plaintiff.
14. We are convinced. that this is a fit case· where applying
the above-mentioned maxim, this Court should not interfere With B
the orders passed by the High Court.
15. We;· accordingly, dismiss both the appeals but without
any orders as to costs.
N.J. Appeals dismissed. c