MARINGMEI ACHAM versus M MARINGMET KHURIPOU on 3 November 2022

1. The impugned order is an order passed in a Civil RevisionPetition. The High Court has found that in view of the fact that the suit,filed by the appellant’s late father (Maringmei Thaitoungam) who haddied and as no steps had been taken to implead his legal representatives,had abated, the result of the abatement of the suit filed by the appellant’sfather, it was held, was that the civil miscellaneous appeal filed underOrder XLIII Rule 1 of the Code of the Civil Procedure against an orderrefusing temporary injunction would no longer have to be proceededwith.

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2. It is the case of the appellant that his father (MaringmeiThaitoungam) became the headman of a village by name Lamdan Kabuiin the year 1972. It is his further case that the post of Chief (Khullakpa)of the village Lamdan Kabui is hereditary as per the Rongmei KabuiCustomary Law and as per which on the death of the chief of the village,the eldest clan member /son becomes the chief. The custom has been inexistence since time immemorial and even notified in the Gazette. It is interms of such custom that the appellant’s father became the chief in theyear 1972.

3. The appellant’s father filed Original (Declaratory) Suit No.3 of2014 on 10.03.2014 contending that he was the chief of village since1972. His wife had passed away in the year 2013. The respondent hereinclaiming that a widower cannot become the chief, had forged certainproceedings declaring himself to be the chief. It was his further contentionthat even if the original plaintiff could not act as a chief, his son canbecome the chief. The appellant’s father sought a relief of declarationof his right as chief (Khullakpa). He further sought a declaration that theorder passed by the Deputy Commissioner, Churachndpur dated A

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A20.01.2014 by which the respondent was recognised as chief was nulland void and a permanent injunction was also sought for against thefelling of trees.

4. The original plaintiff filed an application seeking injunction underOrder XXXIX Rule 1 again seeking to restrain the respondent fromBacting as chief, felling of trees and collecting of house tax. The respondentfiled his written objections. Suffice it to notice that the application seekinginterim injunction was declined by the trial Court which resulted in CivilMiscellaneous Application No. 2 of 2014 being filed before the DistrictJudge by the original plaintiff. Records came to be called for. The nextcircumstance to be noticed is crucial as it consists of the death of theCoriginal plaintiff-the appellant’s father (Maringmei Thaitoungam) whichtook place on 07.09.2014. This event took place during the pendency ofthe appeal against the refusal to grant interim order. In September, 2014,the appellant filed application before the appellate Court seeking to comeon record as his legal representative. This application came to be allowedDby order dated 18.09.2014.

5. On 23.12.2014, the respondent filed a suit (Original (Injunction)Suit No. 39 of 2014) seeking to restrain the appellant from acting asvillage chief. The respondent also filed an application seeking temporaryinjunction. The said application came to be allowed. Civil MiscellaneousEAppeal No. 2 of 2015 was filed again by the appellant challenging theorder granting injunction against the appellant. The High Court by orderdated 12.01.2016 directed verification as to whether after the death ofthe original plaintiff (the appellant’s father), any substitution had takenplace in the suit.F6. On the application filed by the appellant seeking amalmagationof the two civil miscellaneous appeals, by order dated 27.11.2018,amalmagation as prayed for was allowed. A challenge to the same bythe respondent resulted in order dated 15.04.2019 affirming theamalmagation. However, it was observed by the High Court that it wasopen to the respondent to contest the maintainability of the appeals. It isGthis order which led to the passing of order dated 13.05.2019. By thesaid order, the District Judge found apparently that the appeals aremaintainable. This led to the filing of the revision petition and culminatedin the impugned order dated 11.03.2021.

We have heard learned counsel for the appellant and the learnedHcounsel for the respondent.

7. The findings of the High Court at paragraph No. 11 are asfollows:

“[11] It is however significant to note that the suit prayer ofMaringmei Thaitoungam was not only to declare him as the existingor continuing Chief of Lamdan Kabui Village but also to declarethe order dated 20.01.2014 passed by the Deputy Commissioner,Churachandpur, to be null and void. By the said order, the DeputyCommissioner had approved and validated the claim of MaringmeiKhuripou that he was the new Khullakpa/Chief of Lamdan Kabuivillage. In effect, the claim of Maringmei Thaitoungam to the saidpost stood rejected by this order. Unless the said order is set aside,the question of Maringmei Acham seeking any hereditary rightsunder his deceased father in relation to the Chiefship of the villagewould not arise. To that extent, Maringmei Acham had an interestin and the right to continue the suit proceedings as the cause ofaction in relation to the Deputy Commissioner’s order dated20.01.2014 still remained alive for him even after the death ofMaringmei Thaitoungam. Therefore, the plea of MaringmeiKhuripou that the cause of action in the suit stood extinguished inits entirety upon the death of Maringmei Thaitoungam, the soleplaintiff, cannot be accepted.”

After so finding, the High Court has proceeded to notice that theOriginal (Declaratory) Suit No. 3 of 2014 filed by the appellant’s fatherhad abated long back in December, 2014, on account of the death of thesole plaintiff. Since no application was filed within time under OrderXXII of the CPC, the suit stood abated. It was on this basis essentiallythat the Court went on to find that the appellate Court erred in not takingnote of this vital aspect while considering the maintainability of the CivilMiscellaneous Appeal No. 2 of 2014 and limiting itself only to the meritsof the matter.

8. The High Court observed that procedure while is only handmaidof justice but it could not be ignored to the extent of dealing with anappeal on merits when the basis of the order under appeal stooddemolished. Essentially this meant that the High Court found that sincethe suit from which the appeal arose itself stood abated, nothing furthersurvived.

9. Learned counsel for the appellant would contend that theapproach of the High Court is fallacious. He would point out that paragrah A

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A11 (supra) reflected the correct approach of the High Court finding thatthe appellant has a right to continue to prosecute the suit which was filedby his father. But thereafter, the premise of the impugned order is thatthe suit having been abated as a result of the death of appellant’s father-the only plaintiff, and it was not unsettled by bringing on record of thelegal representatives within time, nothing more survives for beingBconsidered in an appeal from the grant or refusal of injunction.

He would submit that this is a matter which is to be decided infavour of the appellant having regard to the position at law which hasbeen clearly laid down by the judgment of this Court in Rangubai KomShankar Jagtap v. Sunderabai Bhratar Sakharam Jedhe & OthersC[AIR 1965 SC 1794]. Therein this Court inter alia laid down as follows:

“9. Let us now consider the question on principle. A combinedreading of Order XXII, Rules 3, 4 and 11, of the Code of CivilProcedure shows that the doctrine of abatement applies equallyto a suit as well as to an appeal. In the application of the saidDRules 3 and 4 to an appeal, instead of “plaintiff” and “defendant”,“appellant” and “respondent” have to be read in those rules. Primafacie, therefore, if a respondent dies and his legal representativesare not brought on record within the prescribed time, the appealabates as against the respondent under Rule 4, read with Rule 11,Eof Order XXII of the Code of Civil Procedure. But there is anotherprinciple recognized by the Judicial Committee in the aforesaiddecision which softens the rigour of this rule. The said principle isthat if the legal representatives are brought on record within theprescribed time at one stage of the suit, it will enure for the benefitof all the subsequent stages of the suit. The application of thisFprinciple to different situations will help to answer the problempresented in the present case. (1) A filed a suit against B for therecovery of possession and mesne profits. After the issues wereframed, B died. At the stage of an interlocutory application forproduction of documents, the legal representatives of B wereGbrought on record within the time prescribed. The order bringingthem on record would enure for the benefit of the entire suit. (2)The suit was decreed and an appeal was filed in the High Courtand was pending therein. The defendant died and his legalrepresentatives were brought on record. The suit was subsequentlyremanded to the trial court. The order bringing the legal H

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representatives on record in the appeal would enure for the furtherstages of the suit. (3) An appeal was filed against an interlocutoryorder made in a suit. Pending the appeal the defendant died andhis legal representatives were brought on record. The appeal wasdismissed. The appeal being a continuation or a stage of the suit,the order bringing the legal representatives on record would enurefor the subsequent stages of the suit. This would be so whether inthe appeal the trial court’s order was confirmed, modified orreversed. In the above 3 illustrations one fact is common, namely,the order bringing on record the legal representatives was madeat one stage of the suit, be it in the suit or in an appeal against theinterlocutory order or final order made in the suit, for an appeal isonly a continuation of the suit. Whether the appellate orderconfirms that of the first Court, modifies or reverses it, it replacesor substitutes the order appealed against. It takes its place in thesuit and becomes a part of it. It is as it were the suit was broughtto the appellate court at one stage and the orders made thereinwere made in the suit itself. Therefore, that order enures for thesubsequent stages of the suit.”

10. The learned Counsel for the respondent, on the other hand,would submit that the position at law canvassed by the appellant isunexceptionable and the High Court may have been in error in ignoringthe effect of the order by which the District Court had in the civilmiscellaneous appeal brought on record the appellant as legalrepresentative of the original plaintiff-appellant’s father. However, hewould point out that his complaint in the petition under Article 227 hasnot been considered by the High Court. He would point out that hiscontention was that on the death of the original plaintiff, the relief whichwas purely personal to him could not have been allowed to be pursuedby the appellant-son of the original plaintiff in the appeal.

He would therefore, pray that the matter should go back to theHigh Court for consideration of his contention which according to himhas not been done by the High Court.

11. In the suit as we have noticed, Suit No. 3 of 2014, which wasthe suit filed by the father of the appellant, the High Court has enteredthe finding as we have noticed in paragraph 11 of the impugned order.

Learned counsel for the respondent, as we have noticed, does nottake objection to the said reasoning of the High Court. This means that ABC

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Athe suit can be continued by the appellant despite the passing away ofthe only sole plaintiff. As far as the effect of the death of the originalplaintiff during the pendency of the miscellaneous appeal, is concerned,we have noticed the pronouncement of this Court. This case attractsillustration number three which has been referred to in paragraph 9 ofthe judgment. For the sake of clarity, we recapitulate the same:B

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(3) An appeal was filed against an interlocutory order made in asuit. Pending the appeal the defendant died and his legalCrepresentatives were brought on record. The appeal was dismissed.The appeal being a continuation or a stage of the suit, the orderbringing the legal representatives on record would enure for thesubsequent stages of the suit. This would be so whether in theappeal the trial court’s order was confirmed, modified or reversed.DIn the above 3 illustrations one fact is common, namely, the orderbringing on record the legal representatives was made at one stageof the suit, be it in the suit or in an appeal against the interlocutoryorder or final order made in the suit, for an appeal is only acontinuation of the suit. Whether the appellate order confirmsthat of the first Court, modifies or reverses it, it replaces orEsubstitutes the order appealed against. It takes its place in the suitand becomes a part of it. It is as it were the suit was brought tothe appellate court at one stage and the orders made therein weremade in the suit itself. Therefore, that order enures for thesubsequent stages of the suit.”F

12. In this case itself, similarly in the suit, temporary injunctionsought by the original plaintiff was refused. An appeal was filed againstthe refusal to grant interlocutory order. The original plaintiff-appellant’sfather having passed away during the pendency of the appeal, the legalrepresentative that is the son of the original plaintiff viz., the appellant,Gwas brought on record by the order of the Court dated 18.09.2014 in theappeal. The fact that in the suit, the legal representative was notsubstituted would not result in the consequence which the High Courthas found in the impugned order having regard to the declaration of thelaw made by this Court. In other words, in view of the fact that the legalrepresentative has been brought on record in appeal though from an H

interlocutory order, such impleadment will enure towards the proceedingsin the suit itself. To make it further clear, the failure to get the appellantimpleaded in the suit itself would not be fatal to the continued prosecutionof the suit. The suit, therefore, must be proceeded with and it cannot beextinguished by virtue of the abatement which the High Court attributeson account of the death of the sole plaintiff and non impleadment in thesuit of his legal representative.

13. Having so found, the question arises as to whether it shouldgo back to the District Judge for consideration of the appeal or whetherit should be remitted to the High Court for considering the complaint ofthe respondent that the appeal before the District Judge was notmaintainable having regard to the death of the original plaintiff in Original(Declaratory) Suit No. 3 of 2014.

In this regard, we find that in the interest of justice, since the suitsare still pending and the issue must be decided in the said suits, it wouldbe more appropriate if we direct that the suits filed by both the appellant’sfather and the respondent are taken up and decided within a reasonabletime. In this regard and to facilitate the same, we record the submissionof the appellant that the appellant will not press Civil Miscellaneousappeals.

We record the submission and we allow the appeal and set asidethe order of the High Court and having regard to the commonality of theissues which appear to arise and the commonality of the parties to thesuits, we further direct that Original (Declaratory) Suit No. 3 of 2014and Original (Injunction) Suit No. 39 of 2014 shall be consolidated andthe cases be disposed of as early as possible and within a period of eightmonths from the date of production of a copy of this judgment beforethe Civil Judge (Senior Division), Churachandpur.

We make it clear that we have not made any pronouncement onthe merits of the contentions of the parties which we leave open.