Order XLI Rule 4 CPC | Procedural Defect in Legal Representative Substitution Does Not Abate Appeal If Merits Heard: Bombay HC (Nagpur Bench)

The Bombay High Court's judgment in Second Appeal No. 158 of 2008 clarifies the distinction between procedural technicalities and substantive rights in the context of abatement of appeals. The Court held that mere failure to amend the memorandum of appeal to include legal representatives of a deceased appellant does not render the appeal void if the merits were heard and decided, reinforcing the principle that procedural lapses should not defeat justice.

Background & Facts

The Dispute

The dispute originated from Special Civil Suit No. 163 of 1993 before the Civil Judge, Senior Division, Akola. The suit was decreed on 17.03.1997, following which the respondent (original plaintiff) filed Regular Civil Appeal No. 364 of 2000 before the District Judge-2, Akola. During the pendency of this appeal, the appellant (respondent No. 1 herein) died. An application for substitution of his legal representatives was allowed, but the amendment to the memorandum of appeal was not carried out.

Key Facts

• The appellant in RCA No. 364/2000 (respondent No. 1 herein) died during the pendency of the appeal.
• An application for bringing his legal representatives on record was filed and allowed, but the memorandum of appeal was not amended.
• The First Appellate Court reversed the trial court's decree on 14.01.2008, deciding the appeal on merits despite the procedural lapse.
• The record of RCA No. 364/2000 was destroyed by an unknown person on 21.11.2005, leading to reconstruction of the record.
• Respondent No. 5 in RCA No. 364/2000 (Ku. Nisha) died in 2004, and her legal representatives were not brought on record, resulting in abatement of the appeal against her.
• Respondent No. 14 in RCA No. 364/2000 was dismissed from the appeal due to non-prosecution.

Procedural History

• 17.03.1997: Trial court decreed Special Civil Suit No. 163/1993.
• RCA No. 364/2000: Filed by the respondent (original plaintiff) before the District Judge-2, Akola.
• During pendency: Appellant in RCA No. 364/2000 (respondent No. 1 herein) died; application for substitution of legal representatives allowed but amendment not carried out.
• 14.01.2008: First Appellate Court reversed the trial court's decree.
• 07.09.2009: Second Appeal (SA No. 158/2008) admitted by the Bombay High Court on the substantial question of law regarding the validity of the First Appellate Court's judgment.
• 29.07.2009: Civil Application No. 4046/2008 disposed of, granting liberty to raise the substantial question of law in the second appeal.
• 29.02.2016: High Court permitted respondents to carry out the amendment in RCA No. 364/2000 within eight weeks.
• 21.11.2005: Record of RCA No. 364/2000 destroyed; reconstruction ordered.
• 30.08.2005: Appeal dismissed against respondent No. 14 and abated against respondent No. 5 (Ku. Nisha) due to non-substitution of legal representatives.

Relief Sought

The appellants sought to set aside the judgment and decree dated 14.01.2008 passed by the First Appellate Court, contending that the appeal stood abated due to the failure to substitute the legal representatives of the deceased appellant in RCA No. 364/2000.

The Legal Issue

The primary question before the Court was whether the failure to amend the memorandum of appeal to include the legal representatives of a deceased appellant results in abatement of the appeal, rendering the judgment passed therein void. Additionally, the Court considered whether the abatement of the appeal against one respondent results in abatement of the entire appeal.

Arguments Presented

For the Appellants

• Relied on the Division Bench judgment in Nari NCP v. Income Tax Officer (2018 SCC OnLine Bom 11902) to argue that the appeal ought to have been dismissed as abated since the legal representatives of the deceased appellant were not brought on record.
• Contended that Order VI, Rule 18 of the Civil Procedure Code (CPC) mandates amendment within 14 days, and failure to comply results in abatement.
• Argued that the judgment passed in an abated appeal is a nullity (non est).

For the Respondents

• The respondents did not file a formal counter-argument in this appeal, but the Court noted that the appeal was decided on merits after hearing both sides.
• The Court observed that Order VI, Rule 18 of the CPC applies to pleadings (plaints or written statements) and not to memoranda of appeal, rendering the appellants' reliance on this provision misplaced.

The Court's Analysis

The Court conducted a detailed analysis of the legal principles governing abatement and procedural compliance:

1. Applicability of Order VI, Rule 18 CPC: The Court held that Order VI, Rule 18 of the CPC pertains to amendments in pleadings (plaints or written statements) and does not apply to memoranda of appeal. The memorandum of appeal is neither a plaint nor a written statement, and thus, the 14-day time frame for amendment does not apply to appeals.

   "The term pleading is defined under Order VI, Rule 1 of the C.P.C. to mean a plaint or written statement. The memorandum of appeal is neither a plaint nor a written statement. The provisions of Order VI of the CPC deal with the pleading i.e. the plaint and the written statement and the same are not applicable to memorandum of appeal."

2. Distinction Between Procedural Lapse and Substantive Rights: The Court distinguished between a mere procedural lapse and the substantive right to be heard. It held that if an application for substitution of legal representatives is allowed and the appeal is decided on merits after hearing both sides, the failure to formally amend the memorandum of appeal is a technical defect that does not render the appeal abated.

   "In the present case, although the application for bringing legal representatives of the appellant in Regular Civil Appeal was allowed, the names were not brought on record by carrying out the amendment, however, the appeal was decided on merits after hearing both the sides. The objection that the appeal stood abated since the legal representatives of deceased appellant in Regular Civil Appeal were not brought on record, is therefore, technical in nature and is liable to be rejected."

3. Precedents on Abatement: The Court relied on Harjitkaur Kuljitsingh Kohli v. Padmavati J. Sethia (2003 (4) BCR 567), which held that omission to formally include legal representatives in the title clause is immaterial if the parties contest the proceedings on merits. It also cited Rukmini Dattatraya Naik v. Parmanand Lalchand Joshi (2001 (2) BCR 141) and H.H. Darbar Alabhai Vajsurbhai v. Bhura Bhaiya (AIR 1937 Bom 401), which held that once an application for substitution is allowed, there is no question of abatement of the appeal.

4. Effect of Abatement Against One Respondent: The Court noted that respondent No. 5 in RCA No. 364/2000 (Ku. Nisha) had died, and her legal representatives were not brought on record, resulting in abatement of the appeal against her. However, the Court framed a substantial question of law on whether the abatement against one respondent results in abatement of the entire appeal. The Court did not conclusively answer this question in the present judgment but acknowledged its significance.

The Verdict

The Court dismissed the second appeal, holding that the appeal did not abate merely because the legal representatives of the deceased appellant in RCA No. 364/2000 were not formally brought on record through amendment. The substantial question of law was answered in favour of the respondents, upholding the validity of the First Appellate Court's judgment dated 14.01.2008.

What This Means For Similar Cases

Procedural Compliance Is Not Absolute

The judgment reinforces that procedural compliance, while important, is not an end in itself. Courts are inclined to prioritize substantive justice over technical defects, especially when the merits of the case have been heard and decided. Practitioners should note:

• Mere failure to amend the memorandum of appeal to include legal representatives does not abate the appeal if the substitution application was allowed and the merits were heard.
• The responsibility for ensuring substitution lies with both the parties and the court staff, and lapses on either side should not defeat the rights of litigants.

Distinction Between Pleadings and Appeals

This judgment clarifies a critical distinction in civil procedure:

• Order VI, Rule 18 of the CPC applies only to pleadings (plaints or written statements) and not to memoranda of appeal.
• The 14-day time frame for amendment under this provision does not extend to appeals, and courts may condone delays in amending memoranda of appeal if the merits are heard.

Implications of Partial Abatement

The judgment raises an important question about the effect of abatement against one respondent on the entire appeal. While the Court did not conclusively answer this, practitioners should be mindful of the following:

• If an appeal abates against one respondent due to non-substitution of legal representatives, it may not necessarily abate the entire appeal.
• However, the judgment's validity may be challenged if the abatement affects the substantive rights of the remaining parties. This issue remains open for future judicial interpretation.