IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6850-6851 ………… of 2008 @

SPECIAL LEAVE PETITION (C) NOs.7099-7100 of 2008

Om Prakash Marwaha (D) Thr. LRS. & Ors. Appellants

Vs.

Jagdish Lal Marwaha (D) Thr. LRS          …Respondents

With Civil Appeal No…6852.. of 2008

(Arising out of SLP(C) No. 3856 of 2007)

J U D G M E N T  

ALTAMAS KABIR, J.

1. Leave  granted  in  both  the  Special  Leave

Petitions wherein the parties are the same and

both arise out of orders passed by the Delhi

High Court in RSA No.126 of 1989.

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2. The  appellants  herein  are  the  legal

representatives  of  the  original  defendant,

Nanak Chand in a suit brought against him by

Jagdish  Lal  Marwaha,  the  predecessor-in-

interest of the respondents, to makeover vacant

and peaceful possession of quarter No. 37-38,

Block  No.C-I,  Malkaganj,  Delhi,  and,

thereafter,  not  to  interfere  with  the

plaintiff’s  possession  therein.  On  the  suit

being  dismissed,  the  plaintiff,  Jagdish  Lal

Marwaha, 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

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was  drawn  up  it  was  drawn  up  against  Nanak

Chand, who, as mentioned hereinabove had died

during the pendency of the appeal.

3. Although, no formal order of substitution 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 had 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

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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.

4. The aforesaid application was strongly opposed

on behalf of the respondents on the ground of

maintainability.  It  was  alleged  that  the

applicants  had  no  locus  standi  to  file  an

application,  as  they  were  not  the  legal

representatives of the plaintiff, Jagdish Lal

Marwaha.

5. The aforesaid submission did not find favour

with the High Court since by an order dated

23rd January, 2004, they had been substituted

in place of the original plaintiff, Jagdish Lal

Marwaha  as  his  legal  representatives.

Furthermore, when the appeal was dismissed on

12th December, 1991, they were parties to the

appeal.   The  application  was,  therefore,

allowed with a direction upon the Registry of

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the High Court to draw up the decree in the

second  appeal  mentioning  the  names  of  the

parties of the appeal at the time the same was

finally disposed of.  The said order is the

subject matter of challenge in SLP(C) No.3856

of 2007, which is being heard along with SLP(C)

No. 7099-7100 of 2008.

6. At this juncture, it may be stated that two

applications,  being  CM  Nos.  584  and  585  of

2003, were filed by the legal representatives

of Jagdish Lal Marwaha, the plaintiff in the

suit, for bringing them on record as the legal

representatives of the deceased plaintiff and

for  condonation  of  delay  in  making  the

application.  It was sought to be explained

that since an application had already been made

under Order 22 Rule 3 read with Section 151 of

the Code of Civil Procedure, on which no order

had  been  passed,  the  applicants  had  been

advised that they were not required to file a

separate  application  for  the  same  purpose.

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Accepting the explanation, the Delhi High Court

allowed both the applications and directed the

Memo of Parties to be amended accordingly.  SLP

(C) Nos. 7099-7100 of 2008 was filed against

the said order of the High Court.

7. Appearing  for  the  appellants,  Mr.  Hasnain,

learned advocate, urged that once the second

appeal had been disposed of, it was no longer

open to the High Court to entertain the several

applications  filed  on  behalf  of  the

plaintiffs/respondents  to allow  the heirs  of

the  deceased-plaintiff to  rectify the  cause-

title  of  the  said  appeal.   Mr.  Hasnain

submitted that when the first appeal filed by

the plaintiff had been allowed and the judgment

of dismissal of the suit had been reversed,

and, thereafter, confirmed in second appeal and

the review therefrom had been dismissed, it was

no longer within the jurisdiction of the High

Court to allow the decree of the first appeal

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to be amended when the same had been drawn up

against a dead man.

8. Mr.  Hasnain  submitted  that  the  procedure

adopted by the High Court was not in consonance

with law and legal procedures and the orders

impugned therein were, therefore, liable to be

set aside.  

9. Appearing  for  the  respondents,  Mr.  Iyer,

learned  senior  advocate,  submitted  that

undoubtedly the suit filed by the predecessor-

in-interest of the respondent was decreed in

the First Appeal.  The said decree was also

confirmed by the High Court in Second Appeal.

Learned counsel submitted that apart form the

above, an application had been duly made by the

plaintiff  for  substitution  of  the  deceased

defendant,  but through  inadvertence no  order

had been passed thereupon and the decree came

to be drawn up against Nanak Chand,  who had

died.

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10. Mr.  Iyer  submitted  that  since  the  default

leading to the passing of the decree against a

dead person was not wholly on account of any

negligence on the part of the plaintiff or his

legal heirs, they should not be made to suffer

on account of such technicality and there was,

therefore,  no  reason  for  this  Court  to

intervene in the matter under Article 136 of

the Constitution.

11. In support of his submission, Mr. Iyer firstly

referred to a decision of a Three-Judge Bench

of this Court in Jang Singh vs. Brij Lal, [AIR

1966 SC 1631] wherein this Court  was called

upon  to  consider  whether  a  litigant  should

suffer  on  account  of  the  lapse  made  by  an

officer of the Court.  Applying the well known

maxim,  actus curiae neminem gravabit – that

an  act  of  Court  should  do  no  harm  to  a

litigant,  this  Court  held  that  the  mistake

should  be  rectified  by  the  Court  and  the

parties relegated to the position on the date

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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 order 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.

12. Mr. Iyer submitted that this was not a case

which called for any interference by this Court

under Article 136 of the Constitution.

13. Having  carefully  considered  the  submissions

made on behalf of the respective parties, we

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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,  had  died  during  the  pendency  of  the

First Appeal, but it is equally important 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 to the notice of the Court,

but it is through sheer inadvertence that the

substitution was not effected.  However, in the

Second Appeal, the legal representatives of the

original plaintiff, Jagdish Lal Marwaha, were

make  parties  by  the  heirs  of  the  deceased

defendant, Nanak Chand, who are the appellants

herein.  The heirs of both the plaintiffs and

the  defendants  were,  therefore,  duly

represented before the High Court in the Second

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Appeal  and  it  is  essentially  a  technicality

which has prevented the heirs of the plaintiff

from enjoying the benefits of the decree passed

in favour of the plaintiff.   

14. We are convinced that this is a fit case where

applying the above-mentioned maxim, this Court

should not interfere with the orders passed by

the High Court.    

15. We, accordingly, dismiss both the appeals but

without any orders as to costs.

_______________J. (ALTAMAS KABIR)

_______________J. (MARKANDEY KATJU)

New Delhi Dated: 26.11.2008

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