GOBIND LAL Vs. BANDHU RAM KAHAR

JUDGEMENT

(1.) The plaintiff, who brought a suit for damages, is the appellant. By an order of this Court, dated December 2, 1959, the heirs of deceased respondents 4 and 12 were substituted in the present appeal. But the application made for setting aside the abatement and for substitution in respect of respondents 1, 29 and 30 was dismissed on the same day. The appeal stood dismissed against respondents 1, 29, 30. At the time of the hearing, learned Counsel for the respondents raised a preliminary objection and contended that the whole appeal has abated and cannot be proceeded with by the plaintiff now, He urged that there would be conflict of decrees, if in this appeal the plaintiff succeeded ultimately on merit. I do not think so. No decree in favour of the deceased respondent was passed in this case by the lower Court. If any decree will be passed here in favour of the plaintiff, that will alone be binding against the defendants-respondents on record here, and will, in no way, affect the heirs of deceased respondents 1, 29 and 30. Learned Counsel cited the Case of Rameshwar Singh Bahadur v. Ram Charan Sahu, AIR 1932 Pat 327 and the case of Apurba Krishna v. Ram Baha-dur, AIR 1936 Pat 191. These cases, in my view, are not of any assistance to the contention raised. The former case was for possession of Certain im-moveable property and for mesne profits. There was a decree in favour of the plaintiff both for possession and certain amount of mesne profits. But as the plaintiff wanted higher mesne profits, he came in appeal. One of the respondents died during the pendency of the appeal, and his heirs were not substituted within time. There, it was held that the whole appeal had abated, because. if a decree for higher mesne profits was passed in the appeal itself, that would result in variance with the decree that had been passed by the lower Court and had become final, as far as the heirs of the deceased respondent were concerned. Similarly, in the latter case, in a suit based on handnote the plaintiff obtained a decree both for the principal and interest; but as he claimed pen-dente lite interest, he came in appeal. There, the same view was taken. Both the cases are distinguishable from the facts of the present case, where no decree fixing any liability on any of the defendants has been passed, and therefore, there is no chance of any conflict in the decrees, if the appeal as decided on merit in favour of the appellant.

(2.) Learned counsel urged that it was open to the plaintiff to proceed against any of the defendants who were alleged to have committed damage to him. He might have left out some of those persons and impleaded others as defendants in the suit. Once he those to proceed against some named defendants, it would not be open to him at a subsequent stage, either during the suit of in the appeal, to forgo his claim against some of the defendants by not bringing on record their substituted heirs, and proceed against the rest. The question that really arises for consideration can be framed as follows: According to the allegation of the plaintiff, there was a large number of joint tort-feasors. He claimed in his suit damages against some of them, leaving others from the suit. Is it open to him either in the first appeal stage, or in the second appeal stage to give up voluntarily some of the defendants and confine bis claim of damages against others? In the present case, having tailed to bring the heirs of the deceased respondents 1, 29 and 30, the position is that the plaintiff wants to press his claim for damages against the other defendants. In my view, it is undoubtedly in the option of the plaintiff to choose against which of the joint tort-feasors he would like to proceed, and once he makes such a choice and comes to the court and brings the joint tort-feasors as the defendants in his suit, it will not be permissible for him at a later stage to proceed against some of them and leave others alone. It may be that during the trial, on evidence, if it is found that some of the joint tort-feasors, impleaded as defendants, were not involved in the alleged wrong and were not liable to the plaintiff for damages, the suit may be dismissed by the court as against them. That is not the same as the plaintiff choosing some of the joint tort-feasors out of those whom he brought on record. I may here refer to the Case of the Calcutta High Court in Kali Narayan v. Haran Chandra, 62 Ind Cas 714 (Cal). The judgment delivered by the late Sir Asutosh Mookerjee, C. J. in that case is a short one, where it was held that in the suit which was framed as a suit for damages for tort against all wrong-doers, it would not be open to the plaintiff-appellant to contend that he could proceed against some of them at his choice in appeal. In that case, one of the respondents died, and no one was substituted in her place. For lack of substitution of the representatives of the deceased defendant, the whole appeal was held to be incompetent to be proceeded with. That principle completely applies to the present case. No reason, of course, has been given in that judgment, but it appears to be quite obvious. The op-tion which the plaintiff possesses in such cases can be exercised before the suit is instituted, and not thereafter. Otherwise, it would lead to absurd positions and to great disadvantages of the parties. Suppose, a plaintiff claimed damages of Rs. 5000/-against five wrong doers impleaded as defendants. His suit was dismissed by the trial court. He comes in appeal, and there he leaves out two of the defendants and proceeds with his appeal against three. He gets a decree of Rs. 3000/. as damages in the first appellate Court. When he comes for enhanced damages in second appeal, he only impleads two of the three defendants against whom he had preferred the appeal at the first appellate stage. In second appeal, let us suppose that the plaintiff gets a decree of damages of Rs. 5000/-, which alone will be payable, if his option in regard to the defendants is left unrestricted, by the two persons against whom the second appeal is preferred. In other words, the person who had been impleaded as a party defendant-respondent in the first appellate stage where a decree was passed for a lesser amount will go scot-free whereas the Only two persons proceeded against in the second appeal will be saddled with the damages of Rs, 5000/-. Other disadvantages of like nature also may be caused if unrestricted option is left to the plaintiff after the institution of the suit. In my view, once the plaintiff chooses to bring on record a number of defendants as wrong doers for a claim of damages against them, he will have to proceed against all of them until the matter is adjudicated finally one way or the other. Lack of substitution of the heirs of any of the defendants, at the appellate stage will result in the abatement of the whole appeal.

(3.) In the present case, the plaintiff contended that he was a raiyat in respect of the land, from which, it was alleged that the defendants took away forcibly the crop. The finding of the trial court Ss that he is not a raiyat. The defence was that the defendants had taken settlement from the landlord in respect of those lands. The effect of the decree passed by the trial court against the plaintiff was that the plaintiff was not a raiyat, and whatever interest there was in the defendants in regard to their alleged settlement was not affected, in any way. In the present appeal, if it is now allowed to be proceeded on merits, and if the finding comes to be that the plaintiff is a raiyat, then certainly in regard to the status what has already been found in favour and in the presence of the deceased defen-dants 1, 29 and 30 would be in conflict with the finding of this Court. That is one of the reasons also for which this appeal cannot be proceeded with.