Mainibati Devi v. Shiv Nandan Bhagat — 1986 DIGILAW 102 (PAT)

JUDGMENT : S.K. Jha, J. This is a plaintiff's application against the ORDER :dated 16th April, 1902, passed by the Subordinate Judge, Bhagalpur, in Title Suit no. 50 of 1969. By the Impugned ORDER :the trial court has held that the further proceedings in the preparation of the final decree cannot go on because the preliminary decree dated 13.1.73 was illegal and without jurisdiction, for, the partition suit had already abated on account of the death of original defendant no. 1 and all his heirs and legal representatives having not been brought on record within the period prescribed by the law of limitation. 2. For the disposal of this application, the facts to be warranted are very short and simple. As I have already said, the suit was instituted sometime in the year 1969. The erstwhile defendant no. 1 died on 31.12.69, admittedly, leaving behind three sons-defendants 2 to 4-on the record. In the meantime, a substitution petition was also filed ex abundanti cautela by the plaintiff petitioner for substituting the heirs and legal representatives of the deceased defendant. On 26.11.70 such a substitution petition was rejected by the trial court, which is manifest from the plaintiff's case as put forth by the learned Subordinate Judge himself in the impugned ORDER :. Be that as it may, such an ORDER :rejecting the substitution petition never saw the light of the day till after that date as no one cared for it. And, I should take it that it delved into the dark premises of the informal files. All said and done, the suit was decreed ex pane as late as on 13.1.73. The contesting opposite parties thereafter filed a miscellaneous case under ORDER :9 Rule 13 of the Code of Civil Procedure (hereinafter to be referred to as the Code), which was registered as Miscellaneous Case no. 12 of 1973, for setting aside the exparte decree. That application was rejected by the trial court. The opposite parties then came up to this Court challenging the legality and validity of the ORDER :of the trial court decreeing the suit exparte and not resting the suit to its original file under ORDER :9 Rule 13 of the Code. In this Court an appeal was registered as Miscellaneous Appeal no. 57 of 1977. The opposite parties then came up to this Court challenging the legality and validity of the ORDER :of the trial court decreeing the suit exparte and not resting the suit to its original file under ORDER :9 Rule 13 of the Code. In this Court an appeal was registered as Miscellaneous Appeal no. 57 of 1977. That ultimately came up for hearing before a Division Bench of this Court, and by a JUDGMENT : ORDER :dated 19.5.80 this Court upheld the ORDER :of the trial court refusing to set ade the ex parte decrees on merits. The question with regard to abatement was abandoned, as it was not raised before this Court, and perhaps, rightly so, because the whole question in that regard to be determined was as to whether the estate of the deceased defendant no. 1 was represented in the suit or not as admittedly, it would bear repetition to say, his three sons-defendants 2 to 4 were already on record from before. After going into the merits of the matter, this Court gave its seal of approval to the ORDER :of the trial court. Thus, the exparte decree passed by the trial court became final. 3. When the proceedings for the preparation of the final decree were started, the contesting opposite parties again raised the same plea that the suit, namely, Title suit no. 50 of 1969 having already abated on account of the absence of some of the heirs and legal representatives of the deceased defendant no. 1, no further proceedings in the preparation of the final decree should be resorted to. This argument has found favour with the learned subordinate Judge and by the impugned ORDER :he has said that in view of the abatement having already taken place before the passing of the preliminary decree, the proceedings for the preparation of the final decree could not go on as it would be going into matters without jurisdiction. The sole question for determination is as to whether on the aforesaid set of facts and circumstances, there is any merit in this application which deserves inference by this Court. 4. The sole question for determination is as to whether on the aforesaid set of facts and circumstances, there is any merit in this application which deserves inference by this Court. 4. One thing which must be highlighted here is that the daughter or daughters or, for that matter, any of the heirs or legal representatives, whom the contesting opposite parties wanted to be represented in this case, has not come forward with any grievance of any sort as to whether the estate of the deceased defendant no. 1 was fully represented in the suit or not. That point as first available to the Contesting opposite parties in the trial court itself when the exparte decree was sought to be set aside because that would have been one of the main grounds for setting aside the exparte decree as the decree was a nullity, if at all. That plea was not taken there. The second opportunity that they got was before this Court in Miscellaneous Appeal no. 57 of 1977. Again this point was never canvassed before this Court and all that was urged was that the ORDER :on merits with regard to the rejection of the application under ORDER :9 Rule 13 of the Code was without jurisdiction, or, to say the least, the court below had acted with illegality and material irregularity in the exercise of jurisdiction or that the ORDER :was illegal and improper since it was a miscellaneous appeal and not a civil revision. The contesting opposite parties were content merely by pressing in this Court the materials on record to show the impropriety and illegality of the JUDGMENT : of the trial court in setting aside the exparte decree. This Court, on an appraisal of the materials on record, did not accept the contention of the contesting opposite parties and accepted the JUDGMENT : and ORDER :of the trial court as legal and valid in setting aside the exparte decree. The preliminary decree, therefore, for all practical purposes was set at rest. Can the contesting opposite parties now at this stage in course of the proceeding for preparation of final decree be permitted to raise a plea that for non-substitution of some of the heirs and legal representatives of the deceased defendant no. 1 the preliminary decree was not binding on them? The answer, in my view, is categorical no. Can the contesting opposite parties now at this stage in course of the proceeding for preparation of final decree be permitted to raise a plea that for non-substitution of some of the heirs and legal representatives of the deceased defendant no. 1 the preliminary decree was not binding on them? The answer, in my view, is categorical no. The entire matter has been considered in all its ramification by a Full Bench of this court in Jagannath Singh v. Srimati Singhasan Kuer ( 1984 BBCJ 163 ; 1984 PLJR 217 ) A number of Supreme Court decisions have also been taken notice of and discussed elaborately and it has been held that when one or more heirs of the deceased defendant or respondent are on record then the estate is fully represented in the suit or the appeal, as the case my be, and the suit or the appeal will not abate for not bringing on record the other left out heirs except in case of malafide. This will also include a case where some of the heirs at their own initiative are brought on the record of the case such heirs who applied for bringing them on record would represent the entire estate. While laying down the general provisions three exceptions have been made in that Full Bench decision, one of which deserves a special attention for the purposes of this case and that is- "where a special case could have been put forward by the left out heirs and they did not get an opportunity to present such cause in the proceeding........" As I have already noticed earlier, none of such heirs or legal representatives has come forward with their objection even till this date basing his or their claim which would go to indicate any act of malafide on the part of the petitioner to induce us to hold that the estate of deceased defendant no. 1 was not fully represented. 5. For the aforesaid reasons and in view of the discussion made above as well as testing the case on the bedrock of principles, I am of the opinion that the sons of the deceased defendant no. 1, who were already on the record as defendants 2 to 4, fully represented the estate of the deceased Apart from that, once this Court bad upheld the preliminary decree as final by its verdict in Miscellaneous Appeal no. 1, who were already on the record as defendants 2 to 4, fully represented the estate of the deceased Apart from that, once this Court bad upheld the preliminary decree as final by its verdict in Miscellaneous Appeal no. 57 of 1977, which was no longer open to the Subordinate Judge to go into merits or demerits of the result of the decree passed at the preliminary stage. He has, therefore, exceeded his jurisdiction in holding that no further proceedings in the final decree stage can go on as the preliminary decree passed in the suit itself was illegal and not binding on the contesting opposite parties. In the circumstances I am constrained to allow this application with costs. 6. The case being an old one (having been instituted as far back as in the year 1969), I do hope that learned Subordinate Judge will see to it that the matters come to a final end as soon as possible preferably within a period of four months from today. Let a copy of the ORDER :be forwarded to the learned Subordinate Judge forthwith. Application allowed.