- (1.) The predecessor-in-interest of the appellant herein filed a suit for recovery of money against the respondent. On 16-7-1985, the respondent filed appearance in the said suit and prayed for grant of time for filing written statement. On 16-1-1986, the respondent filed the written statement in the said suit along with the counter-claim. On 12-2-1986, the appellant informed the respondent about the death of one of the original plaintiffs. On 3-4-1986, the appellant filed an application for substitution of the deceased plaintiff which was allowed on 11-7-1986. Thereafter on 24-6-1988, the appellant moved an application that the counter-claim filed by the respondent may be held as abated as he has failed to substitute the deceased defendant in the counter-claim. The trial court accepted the plea of the appellant and held that in the absence of substitution of the deceased defendant in the counter-claim, the counter-claim has abated. Against the said order, the respondent herein filed a revision petition before the High Court. The High Court was of the view that once the legal representatives of the plaintiff are brought on record, there was no requirement under law to substitute the deceased respondent in the counter-claim. In view of that, the revision was allowed and the order passed by the trial court was set aside. This appeal is preferred against the judgment of the High Court.
(2.) Learned counsel appearing for the appellant referred to the provisions of Order 8 Rule 6-A and argued that in view of sub-rule (4) of Rule 6-A, the counter-claim is to be treated as a plaint and governed by the Rules applicable to the plaint and, therefore, unless the deceased defendant in the counter-claim is substituted counter-claim would abate. At the first glance the argument appeared attractive. However, on the consideration, we find that the similar situation arose in the case of N. Jayaram Reddy v. Revenue Divisional officer and Land Acquisition Officer, Kurnool. In the said case, under the land acquisition proceedings, the State of Andhra Pradesh preferred an appeal to the High Court and a cross-appeal was also filed by the claimants against the judgment of the court below. In the cross-appeal filed by the claimants, one of the claimants died. After his death, his heirs moved an application for substitution and the deceased claimant was substituted by the legal representatives. However, the State Government did not take any steps for substitution in cross-appeal. The question arose whether the omission to substitute the deceased respondent in the appeal, the appeal filed by the State would abate. Justice D. A. Desai who concurred with the judgment of Justice p. N. Shingal held as under: "Shorn of embellishment, when legal representatives of a deceased appellant are substituted and those very legal representatives as legal representatives of the same person occupying the position of respondent in cross-appeal are not substituted, the indisputable outcome would be that they were on record in the connected proceeding before the same court hearing both the matters, in one capacity though they were not described as such in their other capacity, namely, as legal representatives of the deceased respondent. To ignore this obvious position would be giving undue importance to form rather than substance. The anxiety of the court should be whether those likely to be affected by the decision in the proceeding were before the court having full opportunity to canvass their case" (emphasis supplied)
(3.) Coming to the provisions of Order 8 Rule 6-A, although sub-rule (4) says that the counter-claim will be treated as a plaint, under sub-rule (2) , such counter-claim has the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original suit and on the counter-claim. As the substitution has been made by the plaintiff in the suit, the legal heirs of the plaintiff will have full opportunity to defend the counter-claim as both the suit and the counter-claim will be tried in the same proceeding and therefore, no prejudice would be caused to the legal heirs of the plaintiff in the counter-claim. We, therefore, find that the contention of the learned counsel for the appellant has no force.;