Jai Mangal v. Mangroo — 1986 DIGILAW 710 (ALL)

JUDGMENT S.K. Lakhtakia, Member - This is a reference made by the Additional Commissioner, Gorakhpur Division Gorakhpur dated September 24, 1979 through which he has recommended that the order of the trial court dated April 27, 1979 be set aside and the application of the plaintiff for substitution of the heirs on the death of Jhagru, one of the plaintiffs be dismissed and the suit be ordered to be abated under Orders XXII rule 3(2) C.P.C. 2. Heard the learned counsel for both the parties perused the records and the impugned order of the courts below. 3. It appears that this suit had originally been decreed on September 6, 1974 but on appeal it was remanded back to the trial court merely on the ground that the Presiding Officer had not appended the certificate at the foot of the statements of the witnesses about the recording of the evidence in his presence. Thereafter the witnesses of the plaintiffs were again subjected to cross-examination and the case was listed for defence evidence. On the date of the defence dated January 29, 1979 an application was moved by Mangru, one of the plaintiffs that his brother Jhagru had died about a year back in another village and they had come to know about it only recently through the son of the deceased Jhargru, hence he applied for substitution claiming the benefit of Section 5 of the Limitation Act. An affidavit in support of that application had also been given. An objection coupled with an affidavit was filed by the defendant Jai Mangal with the request that the suit be ordered to be abated. The trial court allowed the application of the plaintiff on payment of Rs. 20/- as costs. The defendant filed a revision against that order whereupon the learned Additional Commissioner has recommended to this court that the application of the plaintiffs should be dismissed and the order of the trial court for substitution be set aside and the suit be ordered to be abated because no separate application for setting aside abatement was moved. 4. The defendant filed a revision against that order whereupon the learned Additional Commissioner has recommended to this court that the application of the plaintiffs should be dismissed and the order of the trial court for substitution be set aside and the suit be ordered to be abated because no separate application for setting aside abatement was moved. 4. The learned counsel for the revisionist argued that Jhagru was one of the plaintiff, and the application for substitution was moved after about one year of his death, hence the suit had automatically abated under order XXII rule 3(2) C.P.C. because no application for substitution was filed within three months and hence it was necessary that an application for setting aside abatement would have been filed by the plaintiff and that he trial court could not itself without any prayer on that behalf set it aside. 5. As against the aforesaid argument the learned counsel for the opposite party argued that the order of the trial court was one of the judicial discretion and it cannot be interfered with by the revisional court. It was also argued that the application of the plaintiff was based on bonafide facts, hence it was rightly allowed and the defendants have been compensated by payment of costs to them. 6. The short question involved in this revision is whether a separate application for setting aside abatement alongwith the application for substitution of heirs was to be moved by the plaintiffs or not and if so what is its effect? 7. As regards the date of the death of Jhagru is concerned there is no dispute between the parties that the application for substitution was moved after about a year of his death hence the application for substitution was obviously beyond time. The plaintiff came up with the explanation that Jhagru was living in another village, hence he could not come to know about his death and that is why the delay in moving the application. The learned trial court accepted this explanation as sufficient. This finding being one of the question of fact cannot be interfered with by this court, firstly because the defendants have been compensated by awarding costs to hem and secondly the ground taken by the plaintiff was not challenged by the defendant in his objection filed by him after the application of the plaintiff. This finding being one of the question of fact cannot be interfered with by this court, firstly because the defendants have been compensated by awarding costs to hem and secondly the ground taken by the plaintiff was not challenged by the defendant in his objection filed by him after the application of the plaintiff. In these circumstances the order of the trial court about the substitution has to be upheld. It is also to be sent that both the parties have been litigating diligently in this case for quite long and the suit of the plaintiff has also once been decreed by the trial court. They cannot, therefore be accused of being negligent in moving the application for substitution and it is not unlikely that the delay in moving the application might have been caused due to the reason cited in their application. 8. Now as regards the question of abatement is concerned it is true that the abatement automatically takes place if no application is moved within three months from the date of death of the party but it can be set aside on the request by the party. This request can be oral as well as in writing. If the date or time of death has been already indicated in the application for substitution and condonation for delay is also prayed for it tantamounts to making the prayer for setting aside the abatement. I do not understand as to why an application under Section 5 of the Limitation Act would at all be needed if there was no prayer to set aside the abatement. As a mater of fact if an application for substitution is made within 30 days of the death of the parties or if an application within another 60 days for setting aside the abatement is made there is no question for moving any application under Section 5 of the Limitation Act because such abatement can be set aside without the aid of such application since the request for setting aside abatement is within limitation. The request for condoning the delay under Section 5 of the Limitation Act itself indicates that it is being made to set aside the abatement and that is why the delay is being prayed for being condoned. The request for condoning the delay under Section 5 of the Limitation Act itself indicates that it is being made to set aside the abatement and that is why the delay is being prayed for being condoned. The mere fact that in the application under Section 5 Limitation Act it is not specifically quoted the abatement should be set aside would not make any difference and such request would automatically include the prayer for setting aside the Abatement. In these circumstances if an application under Section 5 Limitation Act has been moved it should not be necessary to move separate application for setting aside abatement and the courts in their discretion while disposing of such application can easily consider the question of setting aside abatement. 9. The learned counsel for the revisionist drew my attention of Prem Narain and others v. Ganga Ram and others, 1982 A.W.C. p. 675 and it was argued that an application for setting aside abatement has to be moved separately. A perusal of this ruling however brings me to another conclusion. It has been held therein in para 4 "that the application to bring the legal representatives of the deceased defendant on the record made after 90 days of his death may be treated as an application to set aside the abatement, but where the plaintiff did not state the precise date on which the defendant died, nor did he pray for extension of time under Section 5 of the Limitation Act for making the application for setting aside the abatement of the suit, the application for bringing the legal representatives on record cannot be taken as an application for setting aside the abatement. 10. Thus it has been held in the aforesaid ruling that the application for substitution itself can be treated as an application for setting aside the abatement if the date of death is mentioned therein and if it is not done a prayer under Section 5 of the Limitation Act has been made. In the instant case both these conditions have been complied with by the plaintiff. They have specifically mentioned the period of death of the deceased plaintiff Jhagru and they made a prayer under Section 5 Limitation Act also. Consequently their application could very easily be considered for the request of setting aside the abatement as well and the learned trial court committed no error in accepting the same. They have specifically mentioned the period of death of the deceased plaintiff Jhagru and they made a prayer under Section 5 Limitation Act also. Consequently their application could very easily be considered for the request of setting aside the abatement as well and the learned trial court committed no error in accepting the same. The Supreme Court in Bhagwan Swaroop and others v. Mool Chand and others, A.I.R. 1983 SC 355 has clearly held "that the laws of procedure are devised for advancing justice and not imposing the same. Code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties not a thing designed to trip people up". 11. The present case is also an illustration in which the aforesaid view of the Supreme Court must be adhered to. The plaintiffs have already won the suit once and they had been contesting the suit more than 15 years hence there is no reason as to why they shall be penalised merely because they moved the application for substitution with some delay and which was allowed only after payment of costs. 12. In the light of the observations made above I find that the recommendation made by the learned Additional Commissioner is without merit and is accordingly rejected. The revision is also dismissed and the order of the trial court dated April 27, 1979 is upheld. The file be sent back to the trial court for disposing it of according to law within 3 months from the receipt of the record. Parties to appear in the trial court on December 17, 1986.