2003(1) ALL MR 436
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.C. DAGA, J.

Parvez Rustom Nekoo Vs. Rustom Ardeshir Nekoo(Deceased)

Civil Application No.171 of 2002,Writ Petition No.2581 of 1991

16th October, 2002

Petitioner Counsel: Shri. Y. S. JAHAGIRDAR, P. S. DANI
Respondent Counsel: Shri. C. R. DALVI, P. K. HUSHING

(A) Civil P.C. (1908), S.141 - Expression "Proceedings" under - Does not include writ proceedings under Art.226 of Constitution of India. (Para 13)

Constitution of India, Art.226.

1996(2) SCC 2 Followed.

(B) Civil P.C. (1908), O.22, R.4, O.47, R.22 and S.141 - Suit for possession - Application for substitution - Scope of O.22 - Death of defendant - It is incumbent on part of plaintiff to substitute the heirs of deceased defendant within reasonable time - All known legal heirs must be brought on record - Writ petition filed solely under Art.227 of Constitution - Provisions of Order 22 of C.P.C. would be very much applicable.

Constitution of India, Art.227.

Once some of the legal heirs of the deceased are brought on record, the proceeding does not abate but once petitioner is put on notice with respect to the omission on his part to implead other legal heirs, in that event, it is obligatory on his part to bring left out legal heirs on record. It is thus not open for any litigant who has the knowledge of other legal heirs to contend that one of the legal heirs is on record and therefore, proceeding does not abate. All known legal heirs must be brought on record. In the present case, the petitioner himself being aware of the other legal representatives rightly moved an application to bring them on record. [Para 25]

The case in hand is a writ petition filed under Article 227 of the Constitution of India which is well within the sweep of section 141 of the C.P.C. Therefore, the provisions of O.22 of C.P.C. would be very much applicable to the writ petitions filed solely under Article 227 of the Constitution. Alternatively, assuming it to be not applicable for the sake of argument, the same cannot escape the necessity of moving an application for substitution or bringing the legal heirs on record. In view of death of the respondent No.1, it was obligatory on the part of the petitioner to substitute name of the deceased respondent No.1 in the petition filed under Article 227 of the Constitution of India. If that be so, it cannot escape the legal consequences of dismissal of the application seeking substitution. [Para 20]

1996(2) SCC 2 and AIR 1965 SC 1049 - Referred to.

Cases Cited:
Sheela Vs. C.B.I., 1998(4) ALL MR 173=1998(1) Mh.L.J. 928 [Para 9,13,16,30]
Ram Das Vs. Deputy Director of Consolidation, Ballia, AIR 1971 SC 673 [Para 13]
Mahabir Prasad Vs. Jage Ram, AIR 1971 SC 742 [Para 13,21]
Harihar Prasad Singh Vs. Balmiki Prasad Singh, AIR 1975 SC 733 [Para 13]
Puran Singh Vs. State of Punjab, 1996(2) SCC 2 [Para 18,19]
Daya Ram Vs. Shyam Sundari, AIR 1965 SC 1049 [Para 22]
Bibi Rahmani Khatoon Vs. Harkoo Gope, AIR 1981 SC 1450 [Para 26]
Mela Ram & Sons. Vs. Commissioner of Income Tax, Punjab, 1956(29) 607 [Para 28]
K.K. Porbunderwala Vs. Commissioner of Income Tax, 1952(21) ITR 63 [Para 28]
Bindeshwari Prasad Singh Vs. State of Bihar, (2002) 6 SCC 653 [Para 29]
Rani Choudhary Vs. Suraj Jit Choudhary, AIR 1982 SC 1397 [Para 29]
Vasantdada Shetkari Sahakari Sakhar Karkhana Ltd., Sangli Vs. B.B. Consulting 'N' Engineering, 2001(1) Mh.L.J. 871 [Para 29]
Bakshish Singh Vs. Arjun Singh, (1996) 8 SCC 323 [Para 30]
Amba Bai Vs. Gopal, AIR 2001 (SCW) 1996 [Para 30]


JUDGMENT

JUDGMENT :- The petitioner in the present Civil Application is seeking restoration of the writ petition No.2581 of 1991 which was filed under Article 227 of the Constitution of India, by setting aside the order of abatement dated 21-12-2000, whereby writ petition was dismissed as abated for the reasons recorded therein.

THE FACTS :

The facts giving rise to the present Civil Application in nutshell are as under :

2. The dispute relates to a shop premises located on the ground floor of House No. 259/260, M.G.Road, Pune. The original plaintiffs Mr. Phiroz Dara Suratia and one Mrs. Dina Dara Suratia claiming to be landlords, filed a suit being Civil Suit No.5998 of 1981 for recovery of possession and mesne profits against their tenants M/s. Mazda Electric Stores, of which Mr. Rustom Ardeshir Nekoo and Mr. Dara Phiroz Suratia were the partners. These persons were shown as defendant Nos.1 to 3. The detailed reference to the status of other defendants viz. Defendant Nos.4- Abdul Kadar Mohammed Gaus Chaviwala and Defendant No.5- Fatimabai Hussainbhai Pakitwala is not necessary except that they were also arrayed as parties to the suit. The suit came to be tried by the 3rd Additional Small Causes Court, Pune, who was pleased to decree the suit and directed the defendant Nos.1, 2 and 3, viz. M/s. Mazda Electric Stores, Mr. Rustom Ardeshir Nekoo and Mr. Dara Phirozshaw Suratia to deliver vacant possession of the suit premises. The suit claim for possession against defendant Nos.5 and 6 came to be dismissed.

3. Being aggrieved by the aforesaid judgment and decree, 2 appeals came to be filed: one by M/s. Mazda Electric Stores being Civil Appeal No.666 of 1985, another by original defendant No.3- Mr. Dara Suratia being Civil Appeal No.702 of 1985. During the pendency of these two appeals in the District Court, Pune, one Mr. Parvez Nekoo, son of Rustom Nekoo (original defendant No.2) sought to get himself impleaded as appellant, as a third party, in these two appeals numbered as Civil Appeal No.666/85 and 702/85. His prayers in both appeals came to be rejected by the District Court, Pune.

4. Being aggrieved by the aforesaid orders of rejection, he preferred revision petition before this Court: being Civil Revision Application No.678 of 1989, which was heard and allowed by S.M.Daud, J. (as he then was), by an order dated 7th November, 1989. The impleadment of Mr. Parvez Nekoo, the present petitioner, as a party to the appeals, upon his statement agreeing to be bound by the result of two appeals was allowed. Relevant part of the order passed by Daud, J. reads as under :

"The petitioner wants to be impleaded as an Appellant in the two appeals being Civil Appeal No.666 and 702 of 1985 pending in the District Court at Pune. He agrees to be bound by the result in the 2 appeals and not claim any right to lead additional evidence etc. etc. Next the suit instituted by him would to some extent depend on the result of the 2 appeals. Until the decision of the 2 appeals, the hearing of that suit being Regular Civil Suit No.177 of 1989 as also the counter suit i.e. Regular Civil Suit No.121 of 1989 is stayed. These reliefs will save multiplicity of proceedings ensuring saving of time and costs for all concerned. I, therefore, allow the revision and make the rule absolute as per the above terms. Costs in this Court to abide the result in the appeals." (Emphasis supplied)

The petitioner on the aforesaid terms got himself impleaded in one of the Civil Appeal bearing No.666 of 1985 as Appellant No.3, but he failed to get himself impleaded in another appeal bearing Civil Appeal No.702/85.

5. The then 4th Additional District Judge, Pune, vide order dated 23rd April 1991, after hearing parties to the appeals, was pleased to dismiss both appeals, and granted time to the appellant i.e. original defendant No.1 to vacate the suit premises.

6. Being aggrieved by the aforesaid judgment and order, Mr. Parvez Rustom Nekoo, petitioner herein, the added appellant in the appeal before the District Judge, preferred writ petition under Article 227 of the Constitution of India being writ petition No.2581/1991 before this Court. The original respondent Nos.1, 2 and 3 viz. Mazda Electrical Stores, Mr. Rustom Nekoo and Mr. Dara Suratia along with original plaintiffs and original defendant Nos.5 and 6 were impleaded as respondents in the petition. The rule was issued in the writ petition. By way of interim relief execution of the decree was stayed by the learned Single Judge of this Court vide order dated 2-7-1991.

7. During the pendency of the aforesaid writ petition, Mr. Rustom Nekoo - original defendant No.2 expired. Consequently, the petitioner moved Civil Application No.4434 of 1988 for substitution to substitute deceased with 2 legal heirs whose names were disclosed as under :

(1A) Mrs. Khorshad Gustad Sadri.

(1B) Mrs. Zareen Jimmy Bodhanwala.

The prayers were made to substitute the name of the deceased respondent No.1 (original defendant No.2) i.e. Rustom Nekoo with that of his aforesaid legal heirs as shown in the cause title of the Civil Application. The said Civil Application also contained prayer that the applicant be permitted to prosecute the petition against the aforesaid two legal heirs of deceased respondent No.1 shown in cause title of the Civil Application. The statement was also made that the petitioner himself is one of the legal heirs of the deceased respondent No.1 besides the persons whose names shown as respondent Nos. (1A) and (1B).

8. The aforesaid Civil Application was dismissed by the Additional Registrar of this Court for non-removal of office objections against Mrs. Zareen Bodhanwala, the respondent No.1B: vide his order dated 8-3-1999. In other words, the said Civil Application came to be dismissed against respondent No.1B, Mrs. Bodhanwala, one of the legal heirs of the deceased respondent No.1. No steps were taken by the petitioner to get this dismissal set aside and or to get the application restored.

9. On 21-12-2000, the aforesaid Civil Application No.4434/98 which was partly alive came up for further hearing before this Court. Nobody appeared for the petitioner. The record revealed the death of respondent No.1 on 6-2-1995. Record further revealed that civil application was dismissed against respondent No.1B- Mrs. Zareen Bodhanwala vide order dated 8-3-1990. Consequently, this Court found that with the dismissal of the application for substitution against respondent No.1B, impugned decree for eviction had become final in view of the judgment of the Division Bench of this Court in the case of Sheela Vs. C.B.I. 1998(1) Mh.L.J. 928 : [1998(4) ALL MR 173], as such this Court recorded in the order that since decree had become final against one of the legal heirs of the deceased i.e. against Zareen Bodhanwala, the main writ petition itself would not survive as there could be no two inconsistent decrees in one suit. This Court finding that no useful purpose would be served by allowing civil application by order dated 21-12-2000 rejected Civil Application No.4434/98 with the result writ petition automatically stood dismissed as abated.

10. The writ petitioner (original third party in lower appellate Court) has moved the present Civil Application for restoration bearing No.171/2002 with a prayer that order of the Additional Registrar dated 8-3-1999 as well as order of this Court dated 21-12-2001 be set aside and Civil Application No.4434/99 as well as Writ Petition No.2581 of 2002 be restored to file and be heard on merits. It was placed for hearing and order before Justice A.M.Khanwilkar, learned Single Judge of this Court, who was of the opinion that the prayer in substance, amounts to seeking review of the order dated 21-12-2001, as such he was pleased to direct the office of this Court to place this matter before this Court. That is how this application is placed before me for hearing and order.

The Argument :

Heard learned Senior Counsel Shri.Y.S.Jahagirdar, with Shri. Dani, appearing for the petitioner and Shri.C.R.Dalvi, learned Counsel appearing for the contesting respondents- non applicants.

11. At the outset, learned Counsel for the respondents raised preliminary objections as to the maintainability of the application on the ground that no grounds are to be found for invoking review jurisdiction of this Court and that the application has to be dismissed for not filing it within a reasonable time.

12. The learned Counsel for the applicant/petitioner in reply submits that provisions of the Code of Civil Procedure, 1908 (the "CPC" for short) per se are not applicable to the writ proceedings. Therefore, it was not necessary to adhere to the said procedure in writ petition.

13. He, on merits of the application under consideration, made two submissions: Firstly: the provision of O.22 of C.P.C. was not applicable and that the petitioner himself: being one of the legal heirs of the deceased respondent No.1: was on record to represent the estate of the deceased, the civil application for substitution and for that purpose even writ petition could not have been dismissed as abated. Secondly, there was no question of decree for eviction becoming final as against the petitioner qua the respondent No.1B inasmuch as the decree itself was passed in favour of respondent Nos.3 and 4 qua the petitioner as well as original respondent No.1 which included respondent No.1B, consequently, there was no question of abatement of entire proceedings as against other respondents merely because substitution application was dismissed as against respondent No.1B. In support of this submission, he placed reliance upon the judgments of Apex Court in Ram Das Vs. Deputy Director of Consolidation, Ballia AIR 1971 SC 673; Mahabir Prasad Vs. Jage Ram AIR 1971 SC 742 and lastly in the case of Harihar Prasad Singh Vs. Balmiki Prasad Singh AIR 1975 SC 733. He further submitted that reliance on the judgment in the case of Sheela (supra) was misplaced. In his submission, the petitioner/applicant being one of the legal representatives, was already on record: may be in another capacity, as such petition could not abate. He went a step ahead and urged that even if no application for substitution would have been moved to bring other legal heirs of the deceased on record, even then: there could not have been any abatement.

14. Shri. Dalvi, learned Counsel appearing for the contesting respondents while replying on merits pressed into service the order of Justice S.M.Daud (as he then was) passed in exercise of revisional jurisdiction of this Court on 7-11-1989 and urged that the present petitioner is bound by the result of the appeal in view of his own statement made and recorded by the revisional Court. He submits that the decree for eviction having become final against one of the legal heirs of the deceased respondent No.1/original defendant No.1, it is binding on the present applicant/petitioner.

15. He further submits that the writ petition filed was under Article 227 and not under Article 226 of the Constitution of India, was to be governed by the provisions of the C.P.C. in view of section 141 of the said Code. Consequently, provisions of O.47 & 22 were very much applicable to the writ petition.

16. Shri. Dalvi further contended that decree under challenge was joint and indivisible, as such there could not be two inconsistent decrees in one suit. He further contends that when decree is single and indivisible, no two inconsistent decrees can stand: one against the deceased and another against the contesting surviving respondents or for that purpose there can not be two inconsistent decrees even against two surviving respondents. He urged that the order of this Court dated 21st December 2001 is perfectly legal and valid. He reiterated his reliance upon judgment of the Division Bench of this Court in the case of Sheela Vs. C.B.I. (supra) in support of his submission.

17. Shri. Dalvi further submitted that the original petitioner- Parvez Nekoo was claiming right in the writ petition in his own independent right, not as legal heir of deceased respondent No.1. The interest of the present applicant/petitioner was adverse to that of the deceased respondent No.1. In order to demonstrate that the claims of both the parties were rival to each other, he invited my attention to the prayer clauses in the Civil Application No.4434/98 and pressed into service the second prayer in support of his contention. The submission advanced was that the petitioner could not be treated as party to the petition as legal heir of the deceased, as the interest of both was adverse to each other: as such no cause of action survived in his favour. Therefore, he could not have been treated as legal representative of the deceased respondent No.1 under O.22, R.4 of the C.P.C. On the aforesaid backdrop he prayed for rejection of the application.

Consideration and finding

18. At the outset, the first question which needs consideration is whether Order 22, R.4 of the C.P.C. is applicable to writ petitions filed under Article 227 of the Constitution of India. The Apex Court had occasion to consider this aspect of the matter in the case of Puran Singh Vs. State of Punjab 1996(2) SCC 2. The Apex Court held that when High Court exercises extraordinary jurisdiction under Article 226 of the Constitution of India, it aims at securing a very speedy and efficacious remedy to a person whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Civil Procedure Code are to be applied to writ proceedings the very object and purpose is likely to be defeated. The Apex Court observed that in view of the conflicting views expressed by different Courts, Parliament by the aforesaid Amending Act introduced an Explanation saying that in section 141 of the C.P.C. expression "proceedings" does not include "any proceeding under Article 226 of the Constitution" and statutorily recognised the views expressed by some of the Courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of Section 141 of the Code. After the introduction of explanation to section 141, it can be said, when section 141 provides procedure prescribed in the Code in regard to suit shall be followed as far as it can be made applicable in all proceedings "in any Court of Civil Jurisdiction", it shall not include a proceeding under Article 226 of the Constitution.

19. At the same time, the Apex Court while recognising above legal position held that though it cannot be said that provisions contained in Order 22 of the Code are applicable per se to writ proceedings or writ appeal, it does not mean that the petitioner or appellant in such writ petition or writ appeal can ignore the death of the respondent, if the right to pursue remedy even after death of the respondent survives. The Apex Court ruled that after the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such deceased respondent within a reasonable time. For the purpose of holding as to what would be the reasonable time, the Apex Court further ruled that the High Court many take note of the period prescribed under Article 120 the Limitation Act for substituting the heirs of the deceased respondent. However there is no question of automatic abatement of the writ proceedings, even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and consideration of a particular case for the purpose of condoning delay in filing the application for substitution. At this juncture, it will not be out of place to mention that the Apex Court in the case of Puransingh (supra) was dealing with the proceedings under Articles 226 and 227 of the Constitution of India, even then the necessity of moving an application for substitution was recognised.

20. But the case in hand is a writ petition filed under Article 227 of the Constitution of India which is well within the sweep of section 141 of the C.P.C. Therefore, the provisions of O.22 of C.P.C. would be very much applicable to the writ petitions filed solely under Article 227 of the Constitution. Alternatively, assuming it to be not applicable for the sake of argument, the same cannot escape the necessity of moving an application for substitution or bringing the legal heirs on record. In view of death of the respondent No.1, it was obligatory on the part of the petitioner to substitute name of the deceased respondent No.1 in the petition filed under Article 227 of the Constitution of India. If that be so, it cannot escape the legal consequences of dismissal of the application seeking substitution. The legal consequences have its own role to play on the pending litigation, which I propose to consider in the later part of this judgment.

21. Another submission advanced by the learned Counsel for the petitioner was that the petitioner (being one of the legal heirs) was already on record may be in another capacity, as such no application to bring other legal heirs on record was necessary. In support of his submission he relied upon judgment in Mahabir Prasad's case (supra). On facts of the present case, the ratio of Mahabir Prasad's case is not applicable. The petitioner, though one of the legal heirs of the deceased, his interest was adverse to the interest of the deceased- respondent No.1. He was prosecuting the petition against the interest of the deceased. Petitioner was prosecuting the petition in his own rights and/or canvassing contentions relevant to his own rights. He was not canvassing the contentions which deceased respondent was canvassing, otherwise he had no reason to get himself impleaded at appellate stage: especially, when respondent No.1 was already a contesting party to the litigation. The petitioner did not come on the scene when the suit was pending. He moved for getting himself impleaded in the appeal at the appellate stage of the litigation. Therefore, one has to conclude that the interest of the petitioner and the deceased in the suit property was adverse to each other as such the case of Mahabir Prasad, in my view, has no application to the facts of this case.

22. Assuming for the sake of argument that his interest in the property was similar and common with that of deceased respondent No.1 and that both of them had no adverse interest adverse to each other and that without moving any application for substitution to substitute the name of the deceased, he was entitled to prosecute writ petition he being already on record may be in some other capacity, as such there was no question of any abatement of the writ petition. Let me consider the case from this angle. The submission, in my view, has no strength for the simple reason that it is settled law that if the petitioner is aware of names of the other legal representatives of the deceased, then, it is not open for him to say that he does not want to join them in the proceeding even though the cause of action survives in their favour. It was, therefore, incumbent upon him to bring them on record in place of the deceased. The above question has been considered by the Apex Court in the case of Daya Ram Vs. Shyam Sundari AIR 1965 SC 1049. In that case, the appellant had impleaded the heirs of the deceased respondent so far as known to him within the time allowed by law, but had omitted to bring on record some of the heirs details of which were made known to him. The question was about the effect of the applicant having omitted to include two of the legal heirs, a son and a daughter who admittedly had interest in the property and the omission to bring them on record was brought to the notice of the Court before hearing of the appeal.

23. The Apex Court in the above case considering the provisions of O.22, R.4 of the C.P.C. posed a question. Is it the intention of the legislature that unless each and every one of the legal representatives of the deceased defendants, where there are several, is brought on record, there is no proper constitution of the suit or appeal, with the result suit or appeal would abate? While answering this question the Apex Court noted almost universal consensus of opinion of all the High Courts that where a plaintiff or an appellant after diligent and bonafide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and bring them on record within the time limited by law, there is no abatement of the suit or appeal and ruled that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those persons impleaded but the entire estate including those not brought on record as such it is well settled that if one of the legal heir is on record, the appeal or suit would not abate.

24. But the next question in the very same judgment posed and considered by the Apex Court is with respect to effect of omission to include all the known legal heirs, who admittedly, had an interest in the property, and the effect of this matter being brought to the notice of the Court before the hearing of the proceedings. The Apex Court no doubt reiterated and recognised well established legal position that there would be no abatement of the suit or appeal if the estate of the deceased is sufficiently represented, but went a step ahead and held that once it is brought to the notice of the Court hearing the appeal that some of the legal heirs of the deceased have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring others on record, so that the appeal could be properly constituted. In other words, if the appellant should succeed in the appeal, it would be necessary for him to bring on record those representatives whom he had omitted to implead originally. The observations made by the Apex Court in para 12 of the said judgment are reproduced hereinbelow :

"..... it would be his duty to bring these others on record so that the appeal could properly be constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading two legal representatives whom the appellant had omitted to bring on record in the first instance."

25. Reading aforesaid judgment in general and para 12 in particular clearly goes to show that once some of the legal heirs of the deceased are brought on record, the proceeding does not abate but once petitioner is put on notice with respect to the omission on his part to implead other legal heirs, in that event, it is obligatory on his part to bring left out legal heirs on record. It is thus not open for any litigant who has the knowledge of other legal heirs to contend that one of the legal heirs is on record and therefore, proceeding does not abate. All known legal heirs must be brought on record. In the present case, the petitioner himself being aware of the other legal representatives rightly moved an application to bring them on record. Now the question is once having moved, to bring on record the legal heirs, and in the said process, if any adverse order is suffered: can the pending litigation escape the impact of its legal consequences thereon.

26. In Bibi Rahmani Khatoon Vs. Harkoo Gope, AIR 1981 SC 1450, the Apex Court held at page 1453 at para 10 as under :

"The concept of abatement is known to civil law. If a party to a proceeding either in the trial Court or any appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have an impact on the judgment, decree or order against which the appeal or revision is preferred. In fact, such judgment, decree or order under appeal or revision would become final."

27. In the above view of the matter, the contention of Shri. Jahagirdar that once petitioner being on record may be in some other capacity, no further application was necessary to bring other left out heirs on record is misplaced. Once the appellant or the petitioner is put on notice or knows well that some of the legal representatives are left out, then, in that event, it is obligatory on the part of such applicant or petitioner to bring them on record. Now the question is once having made such an application to bring left out legal heirs on record and when such application met with rejection, then what is the effect of such rejection on the pending writ petition as well as on decree which was the subject matter of challenge in the petition.

28. In order to answer the above question one has to turn to the legal effect of rejection of application for substitution being Civil Application No.4434/98 by order dated 8-3-1999 and pose a question: Can this order of rejection be an order passed in writ petition? In order to answer this question one has to refer to the judgment of the Apex Court in the case of Mela Ram & Sons. Vs. Commissioner of Income Tax, Punjab reported in 1956(29) 607 wherein, an order dismissing the application for condonation of delay under section 5 of the Limitation Act to excuse the delay in presenting the appeal was held to be one "passed on appeal" within the meaning of section 109 of the C.P.C. even though the appeal was not registered. On the principle laid down in various other decisions, the Apex Court ruled that it must be held that the appeal presented out of time is an appeal, and an order dismissing it as time barred is one passed in appeal. The Apex Court while taking the above view relied upon the decision of this Court in the case of K.K. Porbunderwala Vs. Commissioner of Income Tax 1952(21) ITR 63 wherein Hon'ble Shri. Chagla, C.J. (as he then was) observed :

"..... although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order under section 31 and the effect of that order was to confirm the assessment which had been made by the Income-tax Officer."

29. The aforesaid principle is again reiterated by the Apex Court in the recent case: Bindeshwari Prasad Singh Vs. State of Bihar (2002) 6 SCC 653. The Apex Court observed as under :

"The High Court has noticed the fact that the State had preferred an appeal against the acquittal of the appellants. The appeal was dismissed by the High Court on the ground of limitation. In principle that makes no difference, because the dismissal of the appeal even on the ground of limitation is a dismissal for all purposes."

Though in the above case the Apex Court was dealing with a criminal case but the aforesaid principle is well accepted principle of law as can be seen from another judgment of the Apex Court in the case of Rani Choudhary Vs. Suraj Jit Choudhary AIR 1982 SC 1397 followed by this Court in the case of Vasantdada Shetkari Sahakari Sakhar Karkhana Ltd., Sangli Vs. B.B. Consulting 'N' Engineering, 2001(1) Mh.L.J. 871.

30. On the aforesaid principle of law, one has to reach to the conclusion that rejection of application for substitution against the respondent No.1B vide order dated 8-3-1999 will be an order in the writ petition. Consequently, the writ petition against one of the legal heirs of the deceased respondent No.1 will have to be treated as dismissed. Thus the net effect is the "dismissal" of the writ petition against one of the heirs of the deceased, and confirmation of the decree of eviction against him. If that be so, the question would be what happens to the decree which is single and indivisible? Can there be 2 inconsistent decrees as against deceased respondent and the surviving respondents? Another question would be: Can there be 2 inconsistent decrees against surviving heirs or respondents? All these questions squarely fell for consideration before the Division Bench in the case of Sheela Vs. C.B.I. 1998(1) Mh.L.J. 928 : [1998(4) ALL MR 173]. In my view, this judgment fully answers all the questions raised in this application. For immediate reference I may refer to the judgment of the Apex Court in the case of Bakshish Singh (Dead) by LRS Vs. Arjun Singh (1996) 8 SCC 323, wherein a more or less similar questions have been answered. The Apex Court observed thus :

"It is well settled law that when the decree is single and indivisible, there cannot be inconsistent decrees as against the deceased respondents and the contesting surviving respondents. It is seen that two respondents- partners died pending second appeal. Therefore, there cannot be any inconsistent decree as against the dead persons and against whom the decree dismissing the suit had become final and other contesting respondents whose rights are to be adjudicated in the second appeal.

It would, therefore, be clear that the High Court has not committed any error of law. Since the appeal has already got abated as against the deceased respondents, the Court cannot proceed further on merits. Equally, the same situation is confirmed in this appeal also. Since Respondent Nos.8 and 14(i) had already died and their rights have become final: since their legal representatives have not been brought on record and the appeal stands abated as against them, it would be inconsistent if we go into the merits of the matter as against the contesting respondents in this appeal. Under these circumstances, this appeal also stands abated as against all the respondents."

The above view is further reiterated by the Apex Court in the case of Amba Bai Vs. Gopal reported in AIR 2001 (SCW) 1996.

31. Apart from the above order in the facts and circumstances of this case even Order 41, Rule 4 cannot come to the rescue of the petitioner, since he was not a party to the suit. He was neither the plaintiff nor the defendant in the suit. He did not file the petition on the ground common to all the defendants.

32. On the aforesaid canvas of facts and law and specific finding having been recorded by this Court in the order dated 7-11-1989 passed in Civil Revision Application No.678 of 1989 by Daud, J. I am constrained to hold that the petitioner was and is bound by the result of the appeal. In my opinion, he is bound by the decree which has become final against one of the legal heirs of the deceased respondent No.1 and also against the deceased father and, therefore, order dated 21st December 2000 passed by this Court dismissing the petition as abated cannot be recalled or reviewed.

In view of the above finding, the other contentions raised, in my view holds no water. Even the petitioner could not take his other submission to the logical end.

33. Incidentally, it may not be out of place to mention that no grounds for review were made out in the application as framed and filed, though it was treated as a review petition. No explanation is to be found in the application for delayed presentation of this application. However, rejection of the application on these technical grounds alone would not have been in the interest of justice. Since, the parties to the petition addressed this Court in-extenso, I thought it fit to consider the contentions canvassed by the parties.

In the result, Civil Application is rejected with no order as to costs.

Application dismissed.