Andhara Pradesh v. Pratap Karan as reported in (2016) 2 SCC 82
It has been held as follows:-
39. A five Judges Constitution Bench of this Court in the case of
Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588
was considering the question as to the effect of death of some of the appellants during the pendency of appeal. In that case, during the pendency of appeal, some of the appellants died on different dates and there was no attempt to take any step within time for bringing to the Court the legal representatives of the deceased appellants. The respondents, therefore, filed application praying for dismissal of those appeals as having been abated. It appears that during the pendency of appeal in the High Court, some of the appellants were said to have died, the plea of partial abatement of the appeals qua only those deceased appellants were not accepted by the High Court on the view that decree was joint based on common right and interest, the appeal was rejected in toto. On these facts, the Constitution Bench after discussing all earlier decisions held as under:-
“26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice.”
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31. But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and no hard-and-fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. Consequently, having regard to the nature of the proceedings under the Act and the purpose of reference proceedings and the appeal therefrom, the courts should adopt a liberal approach in the matter of condonation of the delay as well as the considerations which should weigh in adjudging the nature of the decree i.e. whether it is joint and inseverable or joint and severable or separable. The fact that the Reference Court has chosen to pass a decree jointly in the matters before us is and should be no ground by itself to construe the decree to be joint and inseparable. At times, as in the cases on hand, the court for its convenience might have combined the claims for joint consideration on account of similar nature of the issues in all such cases and for that reason the parties should not be penalized, for no fault of theirs. Actus curiae neminem gravabit (an act of court shall prejudice no one) is the maxim of law, which comes into play in such situations. A number of people, more for the sake of convenience, may be counselled to join together to ventilate, all their separate but similar nature of claims and this also should not result in the claims of all such others being rejected merely because one or the other of such claims by one or more of the parties abated on account of death and consequent omission to bring on record the legal heirs of the deceased party. At times, one or the other parties on either side in a litigation involving several claims or more than one, pertaining to their individual rights may settle among themselves the dispute to the extent their share or proportion of rights is concerned and may drop out of contest, bringing even the proceedings to a conclusion so far as they are concerned.
If all such moves are allowed to boomerang adversely on the rights of the remaining parties even to contest and have their claims adjudicated on merits, it would be a travesty of administration of justice itself.
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27. Even as held above procedural law should not be allowed to interfere while dispensing with justice. However, the issue under controversy is not whether its application should be waived, rather whether it applies or not. Once found, then may be waived in individual facts and circumstances of the case, more particularly, when the matter is taken up suo motu. No prayer has been made on behalf of petitioner to condone the delay. At the other end, as enumerated in foregoing paragraph, it happens to be consistent plea that Article 120, 121 of the Limitation Act is not applicable which governs the event of substitution in terms of Order 22 of the CPC, and further having the issue untouched uptil now, as no specific judicial pronouncement of this High Court has been traced, and further, taking into account the case law referred by the learned counsel for the petitioner referred in 1978 PLJR 659 (D.B) as well as considering the nature of controversy to be of great importance, needs authoritative decision and for that the matter in hand is being referred to the Division Bench and for that following questionnaires are formulated:-
A. Proper identification of petition under Article 227 of the Constitution of India.
B. Whether procedures prescribed under Code of Civil Procedure would apply to the petition under Article 227 of the Constitution of India, whenever matter is against the order passed by Civil Court?
C. Whether Article 120, 121 of the Limitation will be applicable while considering substitution relating to petition under Article 227 of the Constitution?
28. Accordingly, office is directed to place the records before Hon’ble the Chief Justice for proper adjudication of the issue by constituting Division Bench.