Om Prakash Marwaha (D) Thr. Lrs. & Ors. versus Jagdish Lal Marwaha (D) Thr. Lrs.

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[2008] 16 S.C.R. 712

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A · OMPRAKASH MARWAHA·(D) THR. LRS. & ORS. v.

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JAGDISH LAL MARWAHA (D) THR. LRS. (Civil Appeal No. 6850-6851 of 2008)

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.NOVEMBER 26, 2006

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[ALTAMAS KABIR AND MARKANDEY KAT JU, JJ.]

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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.}

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Maxims: Actus curie neminem gravabit - Act of Court should do no harm to a litigant - Applicability of.

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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~

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OM PRAKASH MARWAHA (D),THR. LRS. & ORS. v. JAGDISH 713 LAL MARWAHA (D) THR. LRS.

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it remained pending. The heirs of the original defendant 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 plaintiffdecree holder in the second appeal then filed application for rectification of the judgment and decree drawn up and 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 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 directed the memo of parties to be amended accordingly. Hence, the present appeals.

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Dismissing the appeals, the Court

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HELD : 1.1 The original defendant had died during 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. 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

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

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714

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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. hum t a litigant, interference with the orders passed by, the High.Court is not called for. [Paras 13 and 14] [718B E-H; 719-A-B] . .

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

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Case Law Reference:

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AIR 1S6fSC 1631 Relied on Para 11 2oot (9) sec 1960 Relied on Para 11

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

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· 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.

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. WITH ..

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of

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C.A. No. 6852 of 2008

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Harnen and va·rindr Kumar Sharma for the Appellants. F T.L.V. Iyer. T.P. vrnod and M.K. Miehael for the Repondents.

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The Judgment of the Court was delivered by_

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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.

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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

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OM PRAKASH MARWAHA (D) THR. LRS. & OR~. v. JAGDISH 715 LAL MARWAHA (D) THR. LRS. [AL TAMAS KABIR, J.]

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respondents, to makeover vacant and peaceful possession of 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 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 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.,,

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Although, no formal orc;te~of substitUt,ion had been made, 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 Appellate Court being affirmed. However, since the legal heirs of deceased Nanak Chand he?d not been brought on the 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 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, dismissing the appeal.

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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

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[2008] 16 S.C.R.

SUPREME COURT REPORTS

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716

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

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· 5. The aforesaid submission did not find favour with the· High Court since by an order dated 23rd January, 2004, they B^{hadbeensubstitutedinplace of theoriginal plaintiff,Jagdish} 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 c^{the decree in the secondappeal mentioning the names of the} 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.

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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, for bringing them on record as the legal representatives of the deceased plaintiff and for condonation of delay in making the E^{application. Itwassoughttobeexplained that sincean} 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.

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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

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o'M PRAKASH MARWAHA (0) THR. LRS. & ORS. v. JAGDISH 717 LAL MARWAHA (D) THR. LRS, [AL TAMAS KABIR, J.]

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when the first appeal filed by the plaintiff had been allowed and the judgment of dismissal of the suit had been reversed, and, thereafter, confirmed in second appeal and the review therefromhad 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 man.

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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, c liable to be set aside.

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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 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 died.

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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 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.

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In support of his submission, Mr. Iyer firstly referred to 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

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[2008] 1{f s:c.R.

SUPREME COURT REPORTS

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718

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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,

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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

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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.

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Mr. Iyer submitted that this was r:iot a case which called

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D for any interference by this Court under Article 136 of the Constitution. ·

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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 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

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OM PRAKASH MARWAHA (D) THR. LRS. & ORS. v. JAGDISH 719 LAL MARWAHA (D) THR. LRS. [AL TAMAS KABIR, J.]

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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.

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We are convinced. that this is a fit case· where applying the above-mentioned maxim, this Court should not interfere With the orders passed by the High Court.

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We;· accordingly, dismiss both the appeals but without any orders as to costs.

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N.J.

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Appeals dismissed. c

Om Prakash Marwaha (D) Thr. Lrs. & Ors. v. Jagdish Lal Marwaha (D) Thr. Lrs.

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Om Prakash Marwaha (D) Thr. Lrs. & Ors. v. Jagdish Lal Marwaha (D) Thr. Lrs.

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