OM PRAKASH MARWAHA (D) THR. LRS. & ORS. versus JAGDISH LAL MARWAHA (D) THR. LRS.

Leave granted in both the Special Leave Petitions wherein. the parties are the same and both arise· out of orders passed by th~ Delhi High Cour~ in RSA _ No. f26 cif 1989.

p. 714, margin F

The appellants herein are the legal representatives of the original defendant; Nanak Chand in a suit brought against himby'Jagdish L~I Marwaha, the predecessor-in-interest of the 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.,,

pp. 714–715, margin G

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.

p. 715, margin D

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

pp. 715–716, margin G

The aforesaid submission did not find High Court since by an order dated 23rd January, had been substituted in place of the original plaintiff, Lal Marwaha as his legal representatives. Furthermore, the appeal was dismissed on 12th December, parties to the appeal. The application was, therefore, with a direction upon the Registry of the High the decree in the second appeal mentioning parties of the appeal at the time the same was of. The said order is the subject matter of challenge No. 3856 of 2007, which is being heard along 7099-7100 of 2008. 6; At this juncture, it may be stated that being CM Nos. 584 and 585 of 2003, were representatives of Jagdish (al Marwaha, the for bringing them on record as the legal representatives deceased plaintiff and for condonation of delay application. It was sought to be explained that since application had already been made under Order with Section 151 of the Code of Civil Procedure, order had been passed, the applicants had been they .were not required to file a separate application same purpose. Accepting the explanation, the allowed both the applications and directed the to be amended accordingly. SLP(C) Nos. 7099-7100 was filed against the said order of the High

p. 716, margin A

Appearing for the appellants, Mr. Hasnain, advocate, urged that once the second appea1 disposed of, it was no longer open to the entertain ·the several applications filed on behalf respondents to allow the heirs of the deceased-plaintiff the cause~title of the said appeal. Mr. Hasnain when the first appeal filed by the plaintiff had been allowed the judgment of dismissal of the suit had been reversed, 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 amended when the same had been drawn up against a man.

pp. 716–717, margin F

Mr. Hasnain submitted that the procedure adopted the High Court was not in consonance with law and procedur.es and the orders impugned therein were, therefore, liable to be set aside.

p. 717, margin B

Appearing for the respondents, Mr. Iyer, learned advocate, submitted that undoubtedly the suit filed predecessor-in-interest of the respondent was decreed First Appeal. The said decree was also confirmed by the Court in Second Appeal:i.earned counsel submitted that from the above, an application had been duly made plaintiff for substitution of the deceased defendant, but through inadvertence no order had been passed thereupon and decree came to be drawn up agRinst Nanak Chand, who died.

p. 717, margin C

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

p. 717, margin E

In support of his submission, Mr. Iyer firstly referred a decision of a Three-Judge Bench of this Court in Jang vs. Brij Lal, [AIR 1966 SC 1631] wherein this Court was upon to consider whether a litigant should suffer on account of the lapse made by an officer of the Court. Applying the known maxim, actus curiae neminem gravabit - that an 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, 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 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.

pp. 717–718, margin G

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

p. 718, margin B

Having carefully considered the submissions made on behalf of the respective parties,· we are also inclined to hold 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 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 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 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.

pp. 718–719, margin D

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.

p. 719

We;· accordingly, dismiss both the appeals but without any orders as to costs. N.J. Appeals dismissed. c

p. 719