MOHAMMED ALI Vs. VALSALAKUMARI

JUDGEMENT

(1.) ONE Chellappa Rowther was a tenant of some properties. All these three revision petitions arose consequent on the resumption proceedings initiated by the landlords. Resumption was allowed. There were appeals and revisions and the matter was remanded for exercise of option by the tenant. Tenant opted for 50 cents in Sy. No. 3171. The option was accepted and the Land Tribunal passed orders on 9-1-1975. Pending appeal before the appellate authority two of the landlords died and the legal representatives were impleaded. From the order of the appellate authority there was revision before this Court and the matter was remanded solely for the purpose of demarcating the 50 cents and fixing compensation. Before the Land Tribunal the legal representatives of the tenant (who also died) contended that fresh application and substitution of the legal representatives of the deceased landlords is necessary. That contention was opposed on the ground that since the legal representatives were substituted in appeal it is not necessary to have a fresh substitution before the Land Tribunal. Land Tribunal impleaded the legal representatives suo mote without an application. That order was first challenged by the tenants in OP 1846 of 1984 and then by AA 80 of 1984, and both were dismissed. Hence CRP 1566 of 1986 was filed by them.

(2.) MOHAMMED Ali, one of the legal representatives of the deceased tenant challenged the resumption proceedings in OS 154 of 1984 on the ground that he was not substituted as one of the legal representatives of his deceased father. In that suit he applied for injunction to restrain the proceedings in the resumption matter. That was dismissed and C. M. Appeal filed against that order was also dismissed. CRP 2688 of 1985 was filed against the refusal of injunction. In that suit he also filed IA 1584 of 1984 to call for the records of the resumption case to disprove the contention of the opposite side that he was impleaded and represented by his guardian during his minority and thereafter he himself prosecuted the case. That petition was rejected on the ground that he can produce attested copies of documents and the question of calling for original records will arise only when steps are taken to prove signatures by comparison by expert. C. M. Appeal filed by them was also dismissed and CRP 2686 of 1985 is challenging the same.

(3.) THEN what remains is only CRP 1566 of 1986. The only question for consideration in that revision is whether an order impleading the legal representatives of a deceased appellant, respondent or revision petitioner in appeal or revision will enure to the benefit of all the subsequent stages of the suit or whether they have to be impleaded again in the trial court. The relevant provisions are 0. 22 R. 3 and 4 read with R. 11. On the death of a party whether the right to sue survives for or against the surviving parties alone is a matter for the court to examine and decide after hearing the parties. The basic principle underlying 0. 22 R. 3 and 4 is a facet of natural justice or a limb of audi alteram partem rule. A person must be given an opportunity of being heard before a decision affecting him is recorded. It is as a corollary to this rule that it is provided that when a party dies pending a proceeding and the cause of action survives, the legal representatives should be brought on record. That only means that the legal representatives must be afforded an opportunity before any liability is fastened upon them. It is not the form in which they are given that opportunity that always counts. What is relevant is whether in substance they got an effective opportunity. The theory of substantial representation could also be made applicable in appropriate cases. So also if some legal representatives are already before the court in another capacity or are brought on record at some stage of the suit, the action may not abate even if there is no strict compliance with the requirements of r. 3 and 4. For eg: in a matter involving cress-appeal and cross-objections the requirements are substantially satisfied when in cross-appeal the party occupying the position of an appellant in one appeal and respondent in the other dies and his legal representatives are brought on record in the appeal in which he is the appellant and not in the other appeals where he is a respondent because the subject-matter of both the appeals being the decree under attack, they have an opportunity to support the decree in their favour and challenge the decree adverse to them.