P L D 1957 (W (PLP)

B. Z. KAIKAUS, J.‑

One Fazal Dad, a proprietor of village Makhan, District Gujrat, purchased a house from one Allah Rakha who was a non‑proprietor in the village. At this Nek Alam and 39 other proprietors filed a suit against Fazal Dad, impleading the rest of the proprietors as pro forma defendants. for joint possession of the house to the extent of 8/9th share. The allegations in the plaint were that the site on which the house was built was shamilat, that the house too had been built by the proprietors themselves, and that Allah Rakha had no right to sell the house. The suit was dismissed by the trial Court on the ground that the construction of the house by the proprietors was not established. The site underneath the house had been admitted by Fazal Dad to be joint and it does not appear from the judgment of the trial Court why a decree for joint possession of the site was refused. On appeal, the learned District judge agreed with the trial Court that the house had not been built by the proprietors. However, he passed in favour of the plaintiffs and the pro forma defendants a decree for joint possession (without specifying the share to which they were entitled in joint possession). In the decree there was a direction that the superstructure of the house could be removed by Fazal Dad defendant within one month and if he did not so remove it, it could be removed by the executing Court on petition by the decree‑holders. A further appeal against this decree was filed in the High Court by Fazal Dad. During the pendency of the appeal, two of the plaintiff respondents, i.e., Ahmad son of Wali respondent No. 4, and Maula son of Karam Dad respondent No, 17, died and their legal representatives were not brought on the record in time, An application for stay of execution had been filed by the appellant and, while contesting that application, learned counsel for the respondents raised an objection that tile whole of the appeal had abated. I have, therefore, been obliged to decide the question of abatement in the application for stay. It will be seen that there are two parts of the decree‑.in this case. One part is the decree for joint possession in favour of the proprietors of village Makhan and the other part is the decree for removal of the superstructure. I am dividing this decree into two distinct parts, for, while deciding the question of abatement, it will be possible to advance different argu ments in respect of the two parts of this decree. The decree as regards the removal of the superstructure is in favour of each of the respondents so that each respondent could indivi dually get the whole of the superstructure removed. So far as the decree for joint possession is concerned, it is a decree in respect of which it may be urged that though worded as a decree for joint possession in favour of all, it amounts to a decree in favour of each respondent to the extent of his own share. It is conceded before me by learned counsel for the appellant that the appeal has abated in respect of the shares of the two deceased respondents. The only question is whether the abatement of the appeal is total. Under Order XXII, rule 4, Civil P. C., where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, and no application for bringing' the legal representatives of the deceased defendant is made within the time allowed by law, the suit abates "as against the deceased defendant". By virtue of rule 11 of the same Order, the word "respondent" is to be substituted for "defendant" while dealing with appeals. Reading the two rules together, on the death of a deceased respondent, if his legal representatives are not brought on the record in time, the appeal abates "as against the deceased respondent." In the Code of Civil Procedure of 1882, the relevant section was 368 and it provided that if the plaintiff' failed to make an application for bringing on the record the legal representative of the deceased defendant within time, the suit would abate. The words "as against the deceased defendant" were inserted for the first time in the Civil P. C. of 1908 and were intended to set at rest the conflict of opinion which prevailed between the different High Courts as to whether the suit abated as a whole or only in respect of the deceased. The Legislature, in making this amendment, made it clear that the suit was to abate only as against the deceased respondent. Abatement as such, therefore, takes place only in respect of the person who is dead, and when we speak of a total abatement of the suit or appeal, what we mean to say is that on account of the situation created by the abatement of the suit with respect to a particular party, the suit or appeal cannot for some other reason proceed at all. Truly speaking, the words "total abatement" only cause confusion and it would have been far better if the word "abatement" had not been employed at all with respect to the consequent failure of a suit or appeal as against the living parties. Instead of saying that a suit or appeal has abated in toto, we should say that it had abated as regards the deceased and that on account of another principle of law the decision of the appeal on the merits has become impossible. I will now proceed to consider the circumstances in which the abatement of an appeal against the deceased respondent will result in what is called abatement in toto. Three grounds have generally been accepted in reported cases as leading to this result. It has been held that an appeal would abate in toto ; (1) if in the absence of the deceased respondent the appeal is not properly constituted; (2) if a decision on the merits will result in contradictory decrees ; and (3) if in view of the decree in favour of the deceased respondent any further decree which may be passed, will be ineffective. With respect to the first of these grounds, (or criteria) there can be no two opinions. If the appeal be not properly constituted, it obviously cannot proceed. It is true that according to Order I, rule 9, Civil P. C., the non‑joinder of a party is not a ground for dismissal of the suit and the Court has to decide the rights of the parties that are before it, but there are cases where the nature of the dispute between the parties necessitates the presence of a number of persons and the matter involved is such that the right of A against B cannot be determined without at the same time determining the right of B against C. Cases of this nature are suits for partition and rendition of accounts. There may be also cases where there is a joint right held by persons who in law consti tute one legal entity so that they can only sue jointly or a joint and indivisible cause of action against more than one person. In all such cases, the absence of any party from the record may render the suit incompetent. However, it does not necessarily follow that in an appeal relating to partition or rendition of accounts, the abatement of the appeal against one respondent will necessarily result in the abatement of the appeal as a whole. In view of the pleas of the parties the rights and liabilities of the parties may have become so separated that the adjudication of an appeal as between the appellant and living respondents may not at all involve a decision of any matter between the deceased respondent and the appellant. For instance, A files a suit for rendition of accounts against B and C and gets a decree against both for separate sums. B files an appeal impleading A and C, and C dies during the pendency of the appeal without his legal repre sentatives being brought on the record. The dispute involved between B and A in the appeal may not at all be connected with any dispute between B and C. Similarly, in a decree relating to partition the dispute between the living respondent and the appellant may be confined to a particular property with which the deceased respondent was pot concerned. In such cases the appeal may remain properly constituted even in a suit relating to rendition of accounts or partition, It is a matter to be decided according to the circumstances of each case. The second criterion, that is, one which says that abatement will be total if a decision on merits will bring into existence two contradictory decrees, is one on which there is a difference of opinion. In the leading Full Bench case of the Lahore High Court, dealing with the question of abatement, that is, Sant Singh and another v. Gulab Singh and others (A I R 1928 Lah. 573), while Shadi Lal, C. J. and Tek Chand, J accepted this as a good criterion, Jai Lal and Agha Haider, JJ. did not agree and pointed out that contradictory decrees have to be passed in some cases. This difference in opinion is due, at least partly, to the absence of any definition of contradictory decrees. The meaning which the different learned judges attach to the words "contradictory decrees" is not the same. The learned Judges who say that contradictory decrees can be passed, generally go on to point out that there is in fact no inconsis tency between the two decrees. It appears to me that if the two decrees be really contradictory they cannot stand together. The real question to determine is what decrees can be said to be truly contradictory. The first question that arises in one's mind is whether decrees can ever be said to be contradictory if parties to the decrees be not the same. They will certainly not be so if they are passed in several suits. The fact that the executable part of a decree in one suit apparently clashes with the executable part of the decree in another suit or the determinations on which the two decrees are based are inconsistent neither makes the two decrees inconsistent nor prevents the passing of the second decree in the presence of the first. The fact that A has already obtained a decree for possession of land against B on the ground that he is the owner of such land does not prevent C from getting a decree against B with respect to the same land on the ground that he is the owner of it. If A files a suit for possession of land against B on the ground that he is a co‑sharer to the extent of one‑half along with C and the suit is dismissed on the ground that the sale deed which is the source of title was procured by fraud, there is no bar to the passing of a decree for possession in favour of C against B for the same land on the basis of the same sale deed. To take another similar case A sues B for possession of land on the ground that he is the son of C, the deceased owner of the land. The suit is dismissed on the ground that he is not the son of C. A then files another suit against D for possession of the same or other land on the ground that he is the son of C, the deceased owner of the land. There is no bar to a decree in his favour. A and B, two decree‑holders, who have common judgment debtor C, get the same property attached and file separate suits for declaration that the property belongs to C. The suit of one may be decreed and that of the other may be dismissed. With A's right of passage over certain land, B and C interfere and he files separate suits against them for injunction. One suit may fail and the other may succeed. These examples are simple enough and it may be said that it was not necessary to cite them. But sometimes it is good to keep simple cases in mind when deciding the correctness of a legal proposition. In all these cases there is no contradictory decree though the assumption of fact on which the decrees proceed are inconsistent. Why ? Because we are dealing with judgments in personam. These judgments, though apparently purporting to decide rights relating to property and status, truly never decide them. They only determine the rights of the parties to the litigation as against each other. Even when a decree expressly says : "A is owner of property", it does not make him the owner of that property, the only effect of such a decree being that henceforth the defendant in the suit is debarred from disputing the ownership of the plaintiff. Similarly, when a decree says "A is the legitimate son of B", it does not establish the paternity of A but prevents the defendant from disputing it henceforth. The principle that two decrees are not inconsistent merely because they proceed .on inconsistent determinations is not confined to decrees passed in several suits.: Decrees in the same suit, when parties to such decrees are not the same, can proceed on the basis of directly contradictory assumptions of fact. This has never been contested even in cases which pronounce a total abatement on the ground of contradictory decrees and is established by. the two leading Full Bench Cases of the Lahore High Court. In Sant Singh and another v. Gulab Singh and others (A I R 1923 Lah. 573) a suit had been filed to impeach sale deed in favour of four vendees on the usual ground under custom that it was without consideration and necessity. The suit had been dismissed and during the pendency of the appeal one of the vendees respondents died without his legal repre sentatives being brought on the record. It was held that no contradictory decrees could result by a decision of the appeal on merits against the living respondents as the shares of the vendees were ascertainable. It will be observed that the basis of the decision in the case of one decree would be that the sale was for consideration and necessity and in the case of the other decree it would be that the sale was with consideration and necessity, yet it was held that there was no contradiction because the decrees related to separate shares of vendees. In the second Full Bench Case, Nanak v. Ahmad Ali (A I R 1946 Lah. 399). a suit had been filed for a declaration that the property in dispute belonged to the plaintiff and for a cancellation of the sale deed executed in favour of the two defendants by another person. The suit had been decreed and during the pendency of the appeal one of the appellants died without his representatives being brought on the record. It was held that the abatement affected only the deceased appellant and that there would be no contradiction between the decree which subsisted against the deceased appellant and the decree which may be passed in favour of the living appellant although one decree provided for cancellation of the sale deed and the other dismissed the suit for cancellation. The reason given was that the share of the deceased appellant was ascertainable. The question may now be asked : if we are dealing with judgments in personam, can decrees never be contradictory if the appeal abates against one respondent and against the other respondent the appeal is decided on the merits ? It appears to me that there will still be two kinds of cases where decrees may be said to be contradictory : (1) where there is a joint and indivisible right which belongs to a number of persons so that they can either act together, as if they constituted in the eye of law one legal person, or mere is a joint and indivi sible cause of action against more than one person so that the substantive law envisages only one decision of such a dispute, and (2) where the rights of parties are so inter‑linked that a decree against one party necessarily involves a determination in respect of another party also so that a relief against the living respondent necessarily involves a relief against the deceased respondent too. Decrees can be contradictory in spite of being judgments in personam, if the substantive lam, envisages only one determination of a dispute to which more than two persons are parties or if some persons together constitute a single legal entity for a particular purpose. In cases relating to class (2) the nature of the right is such that the extent of the right of A against B depends upon the extent of the right of D against C. As an example of cases of class (1), may be cited the instances of shits by joint tenants of English Law or joint promisses who call only exercise their right jointly and suits for pre‑emption. Instances of the second class are suits for partition and rendition of accounts. Allotment of areas in partition is inter‑dependent and in an appeal it may not be possible to set aside a decree for partition which stands in favour of a living respondent without affecting a decree which stands in favour of the deceased respondent. Similar would be the position in a suit for rendition of accounts. It should be explained here, as I explained when considering the question of necessary parties, that the mere fact that the suit is one for partition or rendition of accounts will not be sufficient for holding that contradictory decrees will come into existence. There may be cases where the decree in favour of the deceased respondent may be altogether separable from the dispute in appeal between the appellant and the living respondent. Each case shall have to be con sidered from the point of view of the practical clash between the two decrees. Let me here state that the practical value of the criterion of contradictory decrees is nil, for in all cases where contra dictory decrees can result, the appeal will fail because it would not remain properly constituted in the absence of the deceased respondent. What would be the test for determining in a particular case whether a decree in fact is contradictory ? One test would be furnished by asking the question : Could there be a separate compromise between the deceased respondent and the appellant ? If there could be a compromise and as a result of that compromise the decree in his favour could have been allowed to stand without any further effect upon the appeal, there is no reason why the appeal should not be heard on the merits if the same result has been brought about not by means of a compromise but on account of the abatement of the appeal as against the deceased respondent. Similar would be the situation if the appellant withdraws his appeal as against the deceased respondent. Another method of determining whether the criterion of contradictory decrees is applicable would be to ask whether separate suits could originally be filed and if separate suits had been filed would a decision in one suit have barred the decision of the other? If it would not have created a bar then it cannot be said that just because the decrees with which we have to deal have been passed in the same suit they will become contradictory. There is in this respect no difference between one suit and several suits. It will not be proper to end this discussion without reference to the test for contradictory decrees mentioned in a number of judgments that if shares are ascertainable there can be no contradictory decrees while there will be contradictory decrees if shares are not ascertainable. I can only understand this distinction as meaning that in cases where several persons together constitute so to say one legal person, when a joint and indivisible right vests jointly in some persons so that they can only act together there will be contradictory decrees. It should be remembered that according to jurisprudence a right inheres in a `person' and where there be shares or not, the rights of persons are always separate and distinct (except in the case mentioned above where they constitute one person). Every person who litigates does so in respect of his own right and even when these rights appertain to the whole of property they do not cease to be separate and distinct rights. The third criterion for determining whether abatement is total has reference to the ineffectiveness of the decree that may be passed. It has been held in a number of judgments that if the decree that may be passed against the living respondents would be in fructuous in view of the decree that exists in favour of the deceased respondent the abatement is total for the Court cannot be called upon to pass an ineffec tive decree. The first objection to this criterion is that the principle of ineffective decrees is truly applicable only to cases where the relief prayed for is equitable and, therefore, in the discre tion of Court, for instance in suits for declaration, injunction and specific performance. The principle has also been applied to cases arising under International Law with respect to jurisdiction over foreigners but it cannot be applied to an ordinary case of relief to which a party is in law entitled. If the right of a person has been infringed by another, he is entitled to relief in respect of that infringement without any enquiry by the Court as to whether the decree will in fact benefit him. It is also to be kept in view that I am dealing with a case of an appeal where a decree has been passed and the appellant is asking the Court to set aside the decree. The setting aside of a decree is by itself sufficient relief and it will be surprising if a decree is to be allowed to stand against the appellant on the ground that the setting aside of the decree would not benefit him. The appellant has a statutory right of appeal. He has paid proper Court‑fee for an adjudication of his right. The appeal must be decided on the merits if there is no legal obstacle Whether he is going to be benefited by the adjudication is his concern, not that of the Court. Another objection to this criterion is that it assumes the ineffectiveness of a decree that may be passed in favour of the appellant against one respondent by the mere fact that a decree exists in favour of another respondent. I will deal with this aspect in more detail when I actually apply this criterion to the present case. But I will add here that it does not at all seem proper to call it abatement if what happens is that on account of your view as to the ineffective ness of a decree you refuse to grant a discretionary relief. Abatement is something which occurs automatically. I now proceed to determine in the light of what I have stated above whether the abatement will be total in this case, and I will begin with the criterion of necessary parties. Were the deceased respondents necessary parties to the constitution of this appeal ? The matter in dispute is one relating to an encroachment on the shamilat. I have already explained while dealing with Order I, rule 9 Civil P. C., that it is only in cases where there is joint and indivisible right or an inter‑dependence of rights that the absence of some person from the record will make the suit not properly constituted. In the case of an improper encroachment on the shamilat it is the individual right of every co‑sharer to have the encroach ment removed. Every co‑sharer has a separate cause of action and can file a separate suit for removal of the structure without impleading the other co‑sharers. As a general proposition every legal "person" has a separate cause of action because rights belong to "persons" (juristic or natural) and suits are based on infringements of rights. It is only where some persons constitute together, so to say, one person, that there is a joint and indivisible cause of action. Shamilat land is no more than land jointly owned with the addition that there may exist some customs with respect to it, and the incidents of this joint ownership are the same as those of any joint property. In the present case several suits could have been filed by the plaintiffs for joint possession of their own shares and for removal of the structure without impleading the other co‑sharers though the other co‑sharers may be proper parties to the suits. The fact that one suit has been filed and there is a joint decree in favoured of the plaintiffs makes no difference. In fact the two Full Bench cases of this Court, Sant Singh Gulab Singh (A I R 1928 Lah. 573) and Nanak v. Ahmad Ali (A I R 1946 Lah. 399), to which I have already referred, are sufficient answers to the contention that the deceased respondents were necessary parties. The first case is of joint decree‑holders and the second of joint judgment‑debtors. It was held in both cases that as the rights of the deceased party were separable the appeal did not fail except as regards the deceased party. Here too the shares though not specified are ascertainable. It is not a case of one joint and indivisible right but of the individual separate rights of co‑sharers in the shamilat. Hayat v. Mutalli (A I R 1938 Lah. 35), too is a similar case where it was held that as the shares were ascertainable there was no total abatement. The extreme proposition put forward by learned counsel for the respondents that in all cases relating to the shamilat all co‑sharers are necessary parties, is wholly unsupportable. I concede that in suits relating to partition of the shamilat all will be necessary parties though all may not be necessary at the stage of appeal, for that would depend on the conten tions raised in the appeal and the relief asked for. In suits between co‑sharers which relate to the ascertainment of shares it has sometimes been held that all co‑sharers are necessary parties on the ground that shares inter se cannot be fixed unless all co‑sharers are bound by the decision. On the other hand it was held by Addison, J. in Karam Khan v. Mast Ali Khan (A I R 1927 Lah. 851), that even in respect of fixity of shares the presence of all co‑sharers is not needed. I will only say that as the ascertainment of shares is only preliminary step for partition, it requires presence of all co‑sharers. It is not necessary for me to discuss the various cases cited by learned counsel as regards necessary parties. Not one of them is a case of the kind before me. To consider the second criterion, will any contradictory decree come into existence if the appeal is heard on the merits ? There can be no contradiction between the decrees in favour of the deceased and those that may be passed against the living respondents. Even if we proceed in accordance with the two Full Bench judgments mentioned above, there can be no contradictory decrees for the shares of the plaintiffs are all ascertainable. Learned counsel for the respondent says they are not stated on the record. That makes no difference. Whether abatement is total or partial does not depend on the accident of the sharers being mentioned on the record. According to reported cases they should only be ascertainable. To determine whether the decree in favour of the deceased would bar the passing of a decree in favour of the appellants, let us consider what happens if there was a compromise in the appeal. Suppose a compromise was effected between the deceased respondent and the appellant by which the appeal was dismissed as against him. Could not the appeal proceed on the merits ? Could it be said that the decree which may be passed in favour of the appellants on the merits would be contradictory to the decree on the basis of compromise and, therefore, the appeal could not be heard ? Or take the opposite case. Suppose, by a com promise one of the respondents agreed that the appeal be accepted as against him. Could the appellant then say that the whole appeal should be decreed because otherwise there may come into existence contradictory decrees ? If it be held that no contradictory decree could come into existence in such a case, is there any ground for holding that they would come into existence by the decree in favour of a deceased respondent becoming unimpeachable on account of the failure to bring his legal representative on record ? To apply another test, could not several suits have been filed by the different plaintiffs ? If one suit was decreed or dismissed could the other suit not be heard at all on the ground that there was an apprehension of the decrees being contradictory ? Would the second have to be decided Just in accordance with the decree in the first ? I would mention here that in accordance with Order I, rule 1, Civil P. C., persons in whom a joint right to relief in respect of the same act exists are not bound to file one suit though they "may" do so. To come to the third criterion can it be said that the decree in favour of the appellant will be wholly ineffective because the decree in favour of the deceased has become infructuous ? Of course this argument is being advanced not in respect of the decree for joint possession but the decree, which enables removal of the structure. It is urged that because the legal representative of the deceased respondent can get the structure removed, this appeal can not be heard. It is a matter of some surprise for me that such at: argument can be put forward. Suppose there were separate suits by co‑sharers for removal and one suit succeeded, could it be urged in the other suits that the defendant was not entitled to contest the suit as in the other suit a decree had been passed against him. Suppose A gets a decree for possession against B and then C files a suit for same property against B, will B not be allowed to defend the suit because someone also has a decree against him for the same property ? Or if in this very suit by a compromise the appeal had been dismissed against one respondent could it have been dismissed against all others on account of ineffectiveness ? One of the reasons why the decree that may be passed on the merits will not be ineffective is that the appellant may compromise with the heirs of the deceased or may acquire their share. It has also to be remembered that if the appeal is dismissed the decision of the trial Court would be res judicata against the appellant and those who claim through him for all time. Getting rid of res judicata would be sufficient benefit for the appellant. The object of all procedure is the determination of rights of parties. We cannot refuse such determination on any ground of procedure unless it becomes practically impossible C to do so. We will have to refuse determination if the appeal becomes imperfectly constituted. We may also not bring into existence contradictory decrees, though this test is practically of no importance because in all cases of contradictory decrees the appeal must also become imperfectly constituted. The test or ineffectiveness of decrees is not a proper test, for it is only in cases of discretionary relief that the question of ineffectiveness of decree can be considered and in such cases the refusal to grant discretionary relief should not be termed abatement. So the practical test for determining whether there is total abatement is whether the appeal is imperfectly' constituted. In the present case the appeal is not imperfectly constituted without the deceased respondents. As the appeal does not abate, I direct that execution by the living respondents should remain stayed during the pendency of the appeal. A.H. Execution stayed.