HEMAREDDI (D) THROUGH LRS. versus RAMACHANDRA YALLAPPA HOSMANI AND ORS.

Citation: [2019] 7 S.C.R. 262 · Decided: 07-05-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

Cited by 3 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 7 S.C.R.
HEMAREDDI (D) THROUGH LRs.
v.
RAMACHANDRA YALLAPPA HOSMANI AND ORS.
(Civil Appeal No. 4103 of 2008)
MAY 07, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Civil Procedure, 1908 – Or.XXII, rr.2, 3 & 4 and
Or.41 – Plaintiffs’ (appellant and his late brother) case that one ‘G’
died leaving behind two sons (‘SR’ and ‘B’) and a daughter –
Plaintiffs were the children of ‘SR’ – Plaintiffs filed suit against the
second defendant, wife of ‘B’ for declaration that she had no right
in the suit property and that the document of adoption dtd. 27.04.91
adopting the first defendant was a false document – Trial Court
dismissed the suit and upheld the adoption – Plaintiffs preferred
first appeal before the High Court – During the pendency of the
appeal, the second plaintiff/second appellant therein died – His
LRs were not brought on record – High Court held that the appeal
abated not only qua the second appellant/plaintiff but as a whole –
Held: Or.XXII, r.3 is applicable also to appeals filed u/Or.41 –
Or.XXII, r.3 therefore is applicable when either a suit or an appeal
is filed by more than one plaintiffs/appellants and on the death of
one of the plaintiffs/appellants, the right to sue does not survive to
the remaining plaintiff/plaintiffs or appellant/appellants alone, then
the LRs of the deceased party can come on record – On that not
being done, the proceeding will abate as far as the deceased party
is concerned – In the present case, there were legal representatives
available for the appellant’s deceased brother– Admittedly, steps
were not taken for their substitution– Appeal, therefore, abated qua
the deceased brother and the decree of the trial Court became final
qua him – Effect of the same is that the adoption is found legal –
Result of the appellant being allowed to proceed further and succeed
in the appeal would be the passing of a decree by the High Court to
the effect that the adoption is invalid – It would be absolutely contrary
to the decree which has also attained finality between his late brother
and the defendants – Both the inconsistent decrees cannot stand
together – There would be irreconcilable conflict – Defendants are
   [2019] 7 S.C.R. 262
262
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common and would be faced with two decrees regarding the same
subject matter – Appellant and his late brother sued as plaintiffs
for declaration that the first defendant was not the adopted son
and has no rights – Right set up by them was joint – They were
members of the joint Hindu family consisting of late ‘G’, their father
‘SR’ and ‘B’ – This is not a case where their claims were distinct –
Mere fact that the appellant was permitted to prosecute the appeal
by an interlocutory order by the High Court would not be sufficient
to tide over the legal obstacle posed by the inconsistent decree
which emerges as a result of the failure to substitute legal
representative of the late brother and the abating of the appeal
filed by his late brother.
Practice & Procedure – Procedural requirement vis-a-vis
principle of substantive law – Discussed.
Dismissing the appeal, the Court
HELD: 1.1  Procedure is the hand maiden of justice, the
technicalities of law should not be allowed to prevail over the
demands of justice and obstacles in the path of the Court
considering a case on merit should not ordinarily become
insuperable.  On the other hand, if the so called procedural
requirement is drawn from a wholesome principle of substantive
law to advance the cause of justice, the same may not be
overlooked. There can be no doubt that Order XXII, Rule 3,
CPC is applicable also to appeals filed under Order 41. Order
XXII, Rule 3 declares that where one of two or more plaintiffs
dies and the right to sue does not survive to the surviving plaintiff
or plaintiffs alone inter alia the Court on an application can
substitute the legal representatives of the deceased plaintiff and
proceed with the suit. Sub-rule (2) provides that if it is not so
done, the suit shall abate as far as the deceased plaintiff is
concerned. Order XXII, Rule (3) therefore is applicable when
either a suit or an appeal is filed by more than one plaintiffs or
appellants as the case may be. This is apart from it applying when
there is a sole plaintiff or sole appellant. In such a situation, on
the death of one of the plaintiffs or appellants and the right to sue
does not survive to the remaining plaintiff/plaintiffs or appellant/
appellants al

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