- (1.) The brief facts of the case are that Rattan Singh, plaintiff-respondent, filed a suit on 28th February, 1972, for permanent injunction to the effect that the defendants be restrained from further construction of the Kotha at the site in suit and also for mandatory injunction to the effect that the construction of Kotha by the defendants be removed and the status quo be restored. This suit was decreed on 16th February, 1973 by the trial Court against Giani Kartar Singh, proprietor, Giani Goods Transport Company and Gurdial Singh. Both the defendants filed an appeal before the Additional District Judge, Jullundur, against the said decree of the trial Court. During the pendency of the said appeal, Giani Kartar Singh, one of the appellants, died. An application under Order 22 Rule 3 of the Code of Civil Procedure, was filed on behalf of Smt. Shanti Devi and Surinder Singh, alleging that Kartar Singh deceased was the husband of smt. Shanti Devi and father of Surinder Singh had he having died on June 26, 1973, they be brought on record as his legal representatives. The said application was contested by the plaintiff-respondent. One of the issues framed by the Court was whether the application was barred by time. As the said legal representatives did not lead any evidence, the application was dismissed, and, consequently, under Order 22 Rule 3(2) the appeal abated so far as the deceased appellant was concerned. Simultaneously the question as to the effect of the abatement on the appeal qua Gurdial Singh, was taken up for consideration and relying upon certain authorities of the Supreme Court, it was held that the appeal has abated as a whole. This order was passed on 15th April, 1974.
(2.) On 23rd April, 1974, the said legal representatives of the deceased Giani Kartar Singh and the surviving appellant Gurdial Singh, filed an application under Order 22 Rule 9 read with Section 151 of the Code of Civil Procedure, for setting aside the abatement. An objection to its maintainability was taken by the plaintiff-respondent. Consequently, an issue to this effect was framed by the learned Senior Subordinate Judge, with enhanced appellate powers, and he vide his order dated 11th January, 1977, held that this application under Order 22 Rule 9 of the Code of Civil Procedure, is not maintainable. The view taken by him was that this rule does not apply to those cases where the Court has already dismissed an application under Order 22 Rule 3 of the Code of Civil Procedure, because that order amounts to a decree which could be appealed against as such. In support of this proposition, he relied upon Mt. Laxmi V. Ganpat,1921 AIR(Nag) 23 and Arjun and others V. Balwant,1954 AIR(MB) 45. The present appeal has been filed against this order dismissing the application under Order 22 Rule 9 of the Code of Civil Procedure. Earlier this appeal came up for hearing before S.P. Goyal, J., but his Lordship was of the opinion that there is some conflict in two Single Bench decisions of the Lahore High Court, reported as General Trading Company, Kahuta V. Nihal Singh and others, 1925 AIR(Lah) 208 and Nand Ram V. Mt. Ralli and others,1927 AIR(Lah) 865(1 , and the question involved being such as is likely to arise frequently, his Lordships referred the case to be settled by a Division Bench.
(3.) The main contention of the learned counsel for the appellants is that the application under Order 22 Rule 9 of the Code of Civil Procedure is maintainable on behalf of the surviving appellant, i.e. Gurdian Singh, as well as on behalf of the legal representatives of the deceased appellant Kartar Singh. For this proposition, he relied upon Nand Ram s case and Tirithdas Keshavdas and another V. Dr. Harchandrai and others, 1940 AIR(Sind) 137 On the other hand, the learned counsel for the respondent cited Niranjan Nath V. Afzal Hussain,1916 AIR(Lah) 245 (Full Bench); Ram Sarup V. Moti Ram and others,1920 AIR(Lah) 8 General Trading Company's case and Arjan's case and also a Full Bench Decision of the Allahabad High Court Habibur Rahman Khan V. Pooran and others, 1966 AIR(All) 353 We have gone through the said authorities and also the relevant provisions of the Code of Civil Procedure. Order 22 Rule 3 and Order 22 Rule 9 of the Code of Civil Procedure read as under :- "3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. - (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff." "9. Effect of abatement or dismissal. - (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. Explanation. - Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order ... ... ...". An application under Order 22 Rule 9(2) can be filed to set aside the abatement only if no application under Order 22 Rule 3 has been made earlier. If an application under Order 22 Rule 3 has been made and dismissed, then no application under Order 22 Rule 9 of the Code of Civil Procedure is maintainable. The question referred to the Full Bench in Niranjan Nath's case was, whether an adjudication directing abatement of a suit on account of the death of a plaintiff, amounts to a decree within the definition of the term contained in Section 2 of the Code of Civil Procedure. According to this authority, it is perfectly clear that the answer to the question must depend upon the determination of the point whether the adjudication in question satisfies the requirements of the definition of the word 'decree'. Now, the adjudications of a Court of justice fall under two main heads; they may be either decrees or orders. To constitute a decree, the decision must fulfil the following conditions :- (i) It must have been arrived at in a suit. (ii) It must have been expressed on the rights of the parties with regard to all or any of the matters in controversy. (iii) It must be a conclusive determination of those rights, so far as the Court expressing the adjudication is concerned. It is a matter for consideration in each case whether the particular decision conclusively determines the rights of the parties with regard to all or any of the matters in controversy between them or not. If a Court passes purely formal order recognising the abatement which is a fait accompli, such an order, though virtually disposes of the suit, it does not adjudicate upon any rights and cannot be treated as a decree. An order of this nature, merely records an abatement, which has already taken place by reason of the lapse of time after the death of the plaintiff and does not contain any decision arrived at by the Court. In a case of this kind, Order 22 Rule 9 of the Code of Civil Procedure allows the legal representatives to make an application for the revival of the suit, and the only question the Court is thereupon required to determine is whether the applicant was prevented by any sufficient cause from continuing his suit and if the decision is in the negative, the aggrieved party is entitled to prefer an appeal against that order under Order 43 Rule 1. The language of Order 22 Rule 9(2), when carefully examined, leads us to the conclusion that it is confined to cases in which the abatement takes place by reason of an application not having been made within the time permitted by law to implead the legal representative of the deceased plaintiff, and that it has no applicability to cases in which the suit has abated on account of some other cause. In case when there are two or more plaintiffs or appellants (as in the present case) and one of them dies and the right to sue does not survive to the surviving plaintiff or the appellant alone, and no application to bring the legal representative of the deceased on the record is made within time, Order 22 Rule 3 lays down that the suit shall abate, so far as the deceased plaintiff is concerned. What is the effect of this partial abatement on the suit of the surviving plaintiff or plaintiffs ? If the suit is of such a nature that it cannot proceed in the result in the total abatement or dismissal of the suit. Whether the final decision is called an abatement, or a dismissal, qua the surviving plaintiff or plaintiffs, it is manifest that it falls, within the definition of the term 'decree and is appealable as such. In the present case, an order was passed by the learned Additional District Judge on 15th April, 1974 dismissing the appeal as having abated as a whole and in view of the observations made in Niranjan Nath's case , the said order amounts to a decree, and, therefore, no application under Order 22 Rule 9 of the Code of Civil Procedure was maintainable either on behalf of the surviving appellant Gurdial Singh or on behalf of the legal representatives of the deceased appellant, as they had already moved an application under Order 22 Rule 3 of the Code of Civil Procedure, which had been decided against them. The ratio of the Full Bench decision of the Lahore High Court was also followed in Ram Sarup's case and in General Trading Company's case and the later decision was subsequently followed in Arjun's case . Even in Nand Ram's case , mainly relied upon by the learned counsel for the appellant, Sir Shadi Lal, the Chief Justice, who was the member of the Full Bench in Niranjan Nath's case , did not decide against the ratio of the Full Bench. In that case there was a formal order passed by the Court declaring that the suit had abated as against the deceased defendant. There was no adjudication as such nor any application under Order 22 Rule 3 of the Code of Civil Procedure was made in that case which could debar him subsequently to make an application under Order 22 Rule 9 of the Code of Civil Procedure. The relevant observations are as under :- "Now that portion of the order which decided that the suit had abated in toto may be a decree, but, in so far as the order declaring the partial abatement as against the deceased Lalji is concerned, I am of opinion that it is an order which could be set aside on the application under Order 22 Rule 9, Code of Civil Procedure.";