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1970 DIGILAW 8 (GAU)

Ningthoujam Ongbi Radhe Devi v. Laisram Ningol Ningthoujam Ongbi Leikho Devi

1970-01-24

R.S.BINDRA

body1970
ORDER N. Dhananjoy Singh, a person of unsound mind, filed Title Suit No. 194 of 1961 through his mother Leikho Devi as his next friend in the Court of the Munsiff, Manipur, against 11 persons on 23rd March 1961. Dhananjoy Singh having died on 13-8-1965, Leikho Devi made an application in the Court on 18-8-1965 intimating the factum of death and praying for adjournment of the suit to enable her to make an application for bringing the legal representatives of the deceased on the record. The Court granted the adjournment. It was on 3-3-1966 that Leikho Devi made an application praying that she be brought on the record as the sole legal representative of her son. That application was disposed of on 17-3-1966. The substance of the order made was that the plaintiff haying died about 8 months before the application was made on 3-3-1966, the suit had abated in terms of Order 22, Rule 3(2), of the Civil P. C.On 23rd of July 1966, Leikho Devi moved another application under O. 47, R. 1, S. 151 and O. 22, R. 9 of the Code, read with Section 5 of the Limitation Act, praying that the order dated 17-3-1966 should be quashed and she be substituted vice her son as plaintiff and permitted to proceed with the suit. This application was opposed by the defendants primarily on the footing that it was highly belated and that no sufficient cause had been disclosed on the basis of which the Court could set aside the abatement order. 2. Shri R. K. Sanatomba Singh, Munsiff No. V, Manipur, accepted the prayer of Leikho Devi by his order dated 31-5-1967 and set aside the order dated 17th of March 1966. He was of the opinion that application dated 18-8-1965 was, in fact, an application for bringing the legal representative of the deceased plaintiff on record. It was further observed in the order that that application though made within the period permitted by law had not been placed before the Court for orders. 3. The defendants filed the instant revision petition in this Court on 5-8-1967 challenging the validity of Munsiffs order dated 31-5-1967. It was submitted in the petition of revision that the order dated 31-5-1967 is perverse and one made without jurisdiction. 3. The defendants filed the instant revision petition in this Court on 5-8-1967 challenging the validity of Munsiffs order dated 31-5-1967. It was submitted in the petition of revision that the order dated 31-5-1967 is perverse and one made without jurisdiction. It was alleged further that the Munsiff had misread the application dated 18-8-1965 and that the substitution of Leikho Devi could not have been directed unless the abatement had been vacated by condoning the delay in making the application dated 23-7-1966. 4. Shri Priyananda Singh, appearing for the petitioners, submitted in the first instance that the trial Court erred gravely in holding that the application dated 18-8-1965 was for bringing Leikho Devi on the record as legal representative of her deceased son, or that that application had never been placed before the Court for orders. I think this submission is well founded. A plain reading of application dated 18-8-1965 would show that no prayer was made therein for bringing Leikho Devi on the record. The only prayer made was that the case may be adjourned to another date so that an application for substitution of the deceased by his legal representatives may be filed in the Court. The order sheet of the suit reveals that on 18-8-1965 the Munsiff took note of the facts that the mother of the plaintiff had reported the latters death, and that "she wanted to move a petition for appointment of L. Rs." The Court then adjourned the ease to 30th September 1965. Thereafter, it looks, the case was transferred to another Munsiff who issued notices to the parties for appearance. It would, therefore, follow that Shri R. K. Sanatomba Singh was clearly wrong in his conclusion that the application dated 18-8-1965 was actually for bringing the representatives of the deceased on record, or that that application had never been placed before the Court for orders. I regret that the Presiding Officer of a Court should not have taken the precaution of going through the application or looking into the order sheet of the suit to ascertain the true factual situation. 5. The next point urged on behalf of the petitioners was that the order bringing Leikho Devi on record could not have been made without first setting aside the abatement which had occurred, it was submitted, automatically on the expiry of 90 days from the death of Dhananjoy Singh. 5. The next point urged on behalf of the petitioners was that the order bringing Leikho Devi on record could not have been made without first setting aside the abatement which had occurred, it was submitted, automatically on the expiry of 90 days from the death of Dhananjoy Singh. Another connected point raised by Shri Priyananda Singh was that the application dated 23-7-1966 was hopelessly barred by time and so should have been rejected on that ground alone. There is, however, abundant authority for the proposition that substitution of the legal representatives without first setting aside the abatement would constitute a mere irregularity which does not vitiate the order. In other words, an application for substitution can legally be treated as a composite application for setting aside the abatement and bringing the representatives of the deceased party on record. In this respect reference may be made to the decisions in Diwan Chand v. Bhagwan Chand, AIR 1937 Lah 455 and Babaji Padhan v. Mst. Gurubara, AIR 1962 Orissa 94. In the latter case it was held that an application made to bring the legal representatives of the deceased defendant on record after the time prescribed therefor by law and continue the proceedings, should ordinarily be treated as an application to set aside the abatement of the suit as it is in substance an application under O. 22, R. 9, of the Code. Therefore, I hold that the Munsiff cannot be said to have erred legally in the assumption that he made that the order bringing the mother of the deceased on the record would imply vacation of abatement which had taken place previously. 6. The crucial question that falls for determination in the present petition is whether there was sufficient justification for setting aside the abatement and bringing the mother of Dhananjoy Singh on the record as his representative on the basis of application dated 23-7-1966 which was made obviously more than 150 days after the death of Dhananjoy Singh. Article 120 of the Limitation Act, 1963, provides a period of 90 days for bringing the legal representative of a deceased party on the record, and that period begins to run from the date of the death of the deceased. The next Art. 121 allows a period of 60 days from the date of abatement for an order to set aside the abatement. The next Art. 121 allows a period of 60 days from the date of abatement for an order to set aside the abatement. It was not disputed by Shri Bhattacharjee, the learned counsel for Leikho Devi, that when no application is made under Rule 3(1) of Order 22 of the Code for bringing the representatives of the deceased plaintiff on record, the suit abates automatically so far that plaintiff is concerned. This legal proposition flows plainly from the Wording in which Rule 3(2) is couched. Rule 9(2) of Order 22 provides that the legal representative of a deceased plaintiff may apply for an order to set aside the abatement, and that if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement upon such terms as to costs or otherwise as it thinks fit. Sub-rule (3) of Rule 9 enacts that the provisions of Section 5 of the Limitation Act shall apply to an application made under sub-rule (2). The exact connotation of the expression "sufficient cause" used in Rule 9(2) was enunciated clearly by the Supreme Court in the case of Union of India v. Ram Charan, AIR 1964 SC 215 . I cannot do better than reproduce the following extract from that judgment :- "There is no question of construing the expression sufficient cause liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellants default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement." It is apparent from the excerpt that in the opinion of the Supreme Court it is not the requirement of law that such a strict proof in determining whether there was sufficient cause in not moving the Court within the period of 90 days for bringing the representatives of the deceased on the record or thereafter in applying within 60 days for setting aside the abatement should be insisted upon as is normally required for holding certain facts proved. In para 12 of its judgment the Supreme Court further observed that the Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit, and that this means that the applicant has to allege and establish facts which in the view of the Court, be a sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged, the Supreme Court pointed out, none can be established, and in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicants not continuing the suit by taking necessary steps within the period of limitation, though such would be a very rare case. This last observation of the Supreme Court does visualise a situation where the Court can set aside the abatement on the basis of peculiar circumstances of the case without anything more. It is in the background of these principles that I proceed to examine the question whether there was sufficient justification for the trial Court to bring the representatives of the deceased Dhananjoy Singh on the record. 7. It is in the background of these principles that I proceed to examine the question whether there was sufficient justification for the trial Court to bring the representatives of the deceased Dhananjoy Singh on the record. 7. I have mentioned in the earlier part of this judgment that only 5 days after the death of Dhananjoy Singh, his mother presented an application to the Court stating the factum of Dhananjoy Singhs death and praying for an adjournment for presenting an application for bringing the legal representatives on record. Thereafter, the suit was transferred to another Court, the Presiding Officer of which summoned the parties for appearance before him. The parties put in appearance before him on 22-12-1965 on which date the case was adjourned to 18-1-1966 "for further proceedings." On the latter date, the Munsiff examined the petition presented by, Leikho Devi oh 18-8-1965 and then adjourned the case to 8-2-1966 to enable Leikho Devi to make an application for bringing the legal representatives of Dhananjoy Singh on record. On 8-2-1966 Leikho Devi prayed for another adjournment which was granted until 3-3-1966. On the latter date, Leikho Devi presented the application but the defendants did not put in appearance in Court on that date. The Court therefore, proceeded ex parte against them and adjourned the case to 17-3-1966 "for further proceedings." On 17-3-1966 as well, Leikho Devi alone put in appearance. However, the Court rejected her application for the reason that it was highly belated. Thereafter, Leikho Devi moved another application on 23-7-1966 of which notice was given to the defendants and they filed objections against the same. However, the Court accepted that application on 31-5-1967 and directed the substitution of Leikho Devi vice Dhananjoy Singh. These facts establish two points unmistakably, viz., (i) that the death of Dhananjoy Singh was communicated to the Court only 5 days after it took place, and (ii) that that fact was brought to the notice of the Court by none other than the only legal representative of the deceased, namely, his mother. Hence, it dan be legitimately assumed that virtually an application for bringing the legal representative on the record had been made within 5 days of the death of Dhananioy Singh though very obviously Leikho Devi stated before the Court on 18-8-1965 that she would present a formal application for the purpose in due course. Hence, it dan be legitimately assumed that virtually an application for bringing the legal representative on the record had been made within 5 days of the death of Dhananioy Singh though very obviously Leikho Devi stated before the Court on 18-8-1965 that she would present a formal application for the purpose in due course. The Court was quite indulgent to Leikho Devi by granting adjournments from 22-12-1965 to 3-3-1966, which is quite indicative of its intention not to act harshly against her. 8. By order dated 17-3-1966 the Court had only declared that the suit had abated. Hence, Leikho Devi was legally justified in moving an application on 23-7-1966 under Rule 9 of Order 22 for setting aside the abatement and bringing her on the record. The Court accepted that prayer which means that the Court condoned the delay in making the application dated 23-7-1966. An order setting aside an abatement, it is settled beyond dispute, is not appealable. Reference may be made to Smt. Chando Devi v. Municipal Committee, AIR 1961 Punj 424, in that connection. AIR 1962 Orissa 94, Babaji v. Mst. Gurubara, referred to above in another connection, is also an authority for the proposition that the question of setting aside the abatement under O. 22, R. 9 is in the discretion of the trial Court and that that discretion is not ordinarily to be interfered with. It follows that the order of the trial Court in the present case, which amounts to setting aside the abatement and substituting the mother as a representative of her deceased son, cannot be lightly interfered with in revision. It may be added that an aggrieved party has no vested right to claim interference by the High Court sitting in revision. The use of the word may in Section 115 of the Code makes the legislative intention perfectly clear. Since in the instant case substantial justice appears to have been done, though the reasoning adopted by the Munsiff is not sound, I see no justification for interference with the impugned order. 9. As a result, the revision petition fails and so stands rejected. However, I leave the parties to bear their own costs. Advocates fee Rs. 32/-. Petition dismissed.