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1997 DIGILAW 55 (GAU)

Chittaranjan Das v. Pran Ballabh Das

1997-04-01

J.N.SARMA

body1997
This revision has been filed by defendant No. 1. The two plaintiffs brought a suit against the two defendants, namely one Surendra Lal Das and other Chittaranjan Das for ejectment of the defendants from the suit house situated on the land as described in the Schedule of the plaint. It may be stated herein that Surendra Lal Das, defendant No. 1 is the father of plaintiff No. 1. This suit was filed in the year 1981 and this suit has not reached even the stage of hearing because the parties filed one revision after another. 2. Earlier there was a civil revision before this Court being Civil Revision No.111 of 1983 and it was dismissed for default on 22.12.89. The defendant No.1 Surendra Lal Das died while the civil revision was pending before this Court. It may be mentioned herein that Surendra Lal Das though appeared in the suit did not file any written statement and did not contest the suit. Even he did not appear in the revision as mentioned earlier and did not contest the same. Thereafter, when the matter sent back to the trial Court, before the trial Court an application was filed on 20.5.91 under Order 22 Rule 4 (4) read with section 151 of the Civil Procedure Code to grant exemption to the plaintiff from substituting the heirs or the legal representatives of the defendant and to allow the plaintiff to proceed with the suit. It was stated in that application that the defendant No. 1 had no interest in the suit and it is for that reason the defendant No. 1 did not contest the suit. 3. An objection was filed by the defendant No.2 on 1.7.91 and the trial Court after hearing both the parties on 12.11.91 passed the following order: "12.11.91 : Both sides present Sri Debabrata Sarma, learned counsel for the plaintiff has drawn the attention of the Court to the petition No.381 of the plaintiff and states that since defendant No.1 (since deceased) did not file any written statement and did not have any interest in the suit. There is no necessity for substituting his heirs. Perused the record. The plaintiffs' above petition is allowed and they are exempted from substituting the legal representatives of the defendant No.1. Fixed 26.11.91 for steps before hearing." 4. It is this order which is challenged in this revision application. 5. There is no necessity for substituting his heirs. Perused the record. The plaintiffs' above petition is allowed and they are exempted from substituting the legal representatives of the defendant No.1. Fixed 26.11.91 for steps before hearing." 4. It is this order which is challenged in this revision application. 5. I have heard Sri BK Goswami, learned Advocate for the revision petitioner and Sri AC Sarma, learned Advocate for the opposite parties. 6. Before we proceed further it may be stated herein that in the year 1976 by amendment Order 22 Rule 4 (4) of the CPC was inserted in the CPC. That sub-rule (4) is quoted below: "(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.'' 7. Sub-rule (4) as quoted above will show that it gives the power to the Court to exempt the plaintiff from substituting the heirs of any defendant who has died or if he had not appeared in the suit or in case he appears but fails to contest, and without substituting the Court may pronounce the judgment even against such defendant as if it was pronounced before his death. Even before this amendment was introduced in the CPC that was the rule of the four High Courts i.e. in the High Court of Madras, Calcutta, Andhra Pradesh and Assam. 8. The object and reasons for incorporation of this sub-rule was as follows: That the delay in the substitution of the legal representatives of the deceased defendant was one of the cause of delay in the disposal of the suits and in order to cut down that delay it was felt that the substitution of the legal representatives of the non contesting defendant would not be necessary and the judgment delivered in the case shall be as effective it would have been passed when the defendant was alive. 9. 9. Sri Goswami, learned Advocate for the revision petitioner submits that this application to exempt the substitution of the legal representatives must be made before abatement takes place. He submits that once abatement takes place Without setting aside the abatement, the question of granting exemption shall not arise. Sri Goswami is correct in contending that no formal order of abatement need be recorded to give effect to abatement Hie suit or appeal abates automatically if no application is made for substitution within the prescribed time. If any authority is required for this proposition of law one may have a look at AIR 1983 SC 767 (Madan Naik (dead by LRs) & others vs. Mst Hansubala Devi & others) wherein in paragraph 5 of the Supreme Court pointed out inter alia as follows : "It may be mentioned that no specific order for abatement of proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order 22, Rule 9, CPC for setting aside the abatement." 10. Sri Goswami places reliance in a judgment of this Court reported in ILR 1974 (26) Gauhati 289 (Jyotish Chandra Ghosh vs. Satish Chandra Ghosh & others) wherein the rule of this Court with regard to this came for consideration. As indicated above, the amended sub-rule now incorporated is almost the same with earlier rule of this Court. There the Single Judge of this Court pointed out as follows: "He further points out that the abatement of the appeal comes about automatically if no application is made for bringing the representatives of the deceased-respondent on record within 90 days of his death. Shri Palit has cited two authorities in support of his contention. They are reported in 59 Calcutta Weekly Notes 304, Nani Gopal vs. Panchanan and AIR 1964 Orissa 39, Lakshmi Charan vs. Satyabadi. It maybe stated here that the amendments aforementioned were introduced in the first instance by the Calcutta High Court and they were adopted by the Assam High Court in their entirety but the Orissa High Court adopted the same with some changes. It maybe stated here that the amendments aforementioned were introduced in the first instance by the Calcutta High Court and they were adopted by the Assam High Court in their entirety but the Orissa High Court adopted the same with some changes. The Calcutta High Court held in the case of Nani Gopal that where no application has been made for substitution under Rule 4 (1) of Order 22 and no order for exemption has been made under the provisions of sub-rule (4) of Rule 4 of that Order the suit shall abate, and that the Court's power to grant exemption under Rule 4 4) can be exercised only before and not after, an abatement has taken place. The same view was expressed by the Orissa High Court when it held in the case of Lalshmi Charan that the Rule 4 (4), can be exercised only before an abatement takes place and not after. The High Court observed further that the words "whenever the Court thinks fit" in Rule 4 (4) in the context must mean when the Court thinks fit within 90 days from the date of death and before abatement takes place. After careful examination of Rule 4 as amended I have reached the conclusion which accords with the view expressed by the Calcutta and the Orissa High Courts. The question of exemption contemplated by Rule 4 (4) must necessarily arise when there is time for the plaintiff or the appellant to move the Court for substitution, for once the abatment of the suit or the appeal qua particular defendant or respondent has taken place the stage for grant of exemption would be over. After abatement has come about, the appellant can only pray for vacating the same on condonation of delay. Rule 4 (4) speaks of exemption from the necessity of substituting the legal representatives of the deceased defendant and not of setting aside the abatement arising out of non substitution. That subject is dealt with in Rule 9 of Order 22, and so Rule 4 (4) has no relevancy thereto. I would therefore, held that it is not open to the present appellant to avail of the provisions of Rule 4 (4) of Order 22 in the context of the facts which are not in dispute." 11. That subject is dealt with in Rule 9 of Order 22, and so Rule 4 (4) has no relevancy thereto. I would therefore, held that it is not open to the present appellant to avail of the provisions of Rule 4 (4) of Order 22 in the context of the facts which are not in dispute." 11. For the disposal of the present revision it is not necessary to decide this question and I leave it open for the present to be decided in an appropriate case because the facts of this case stand on different footings. In the present case the plaintiff No. 1 himself is the heir of defendant No.1 and he is already on record and as such the suit cannot abate, as there is already on record on heir. If any authority is required for this proposition of law one may have a look at AIR 1932 Madras 527 (M. Ramakrishna Redi & others vs. Reddivari Narasimha Reddi) wherein the Division Bench of Madras High Court pointed out that when the heirs are on record the suit shall not abate and in such an eventuality such a person need not apply for setting aside the abatement for that the case is to abate as against the heirs of the deceased. After all the procedural law must not be allowed to have stringent observance, as procedure should not be allowed to defeat the justice and the law regarding substitution is nothing u^ . y^ ^" law and that should not be allowed to be used as a tool or handle without deciding the genuine and just claim of a litigant. 12. In AIR 1971 SC 742 (Mahabir Prasad vs. Jage Ram & others) the Supreme Court pointed out that where in a proceeding a party dies and one of the a legal representatives is already on record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record. The Supreme Court further pointed out that even if there are other heirs and legal representatives and no application for impleading is made the proceeding will not abate. The matter will continue with the only heir on record. 13. The question of abatement also may be considered from another angle. The Supreme Court further pointed out that even if there are other heirs and legal representatives and no application for impleading is made the proceeding will not abate. The matter will continue with the only heir on record. 13. The question of abatement also may be considered from another angle. In this case, the suit was filed by the plaintiff against the defendant for ejectment from a house situated in an urban area and the suit was covered by the Assam Urban Areas Rent Control Act, 1972. On that ground also abatement may not take place, because real question is who is the tenant in occupation of the house. 14. The disctionary meaning of the word abatement is t6 throw down, to beat down, destroy, or quash (Black's Law Dictionary), to diminish or take away, remove or destroy (Stroud). Same is the meaning given by Wharton. Abatement of a proceeding means when cause of action ceases to exist or relief cannot be given in the absence of the heirs of the deceased. To abate is to put an end the very existence of the proceeding. Hie question is whether right to sue survisves against others on record or whether relief can be obtained without heirs of deceased. 15. In para 1 of the plaint it has been stated that though originally both the defendants took the house on rent together. Jjater on by mutual partition, they occupied separate and distinct portion of the suit premises, the western part of holding No.212 is possessed by defendant No. 1 and eastern portion by defendant No.2. The defendant No.2 cannot take up the plea of abatement as defendant No. 1 did not contest the suit or revision, though he appeared in the suit earlier. 16. This matter may be examined from another angle. The effect of abatement is laid down by Order 22 Rule 9 (1) CPC. It provides no fresh suit will lie on the same cause of action. In an ejectment suit even after dismissal of one suit a fresh suit always can be brought as fresh grounds always may be available for a separate suit for? ejectment and the cause of action for the subsequent suit may not be identical in whole or in part with the cause of action of the earlier suit. In an ejectment suit even after dismissal of one suit a fresh suit always can be brought as fresh grounds always may be available for a separate suit for? ejectment and the cause of action for the subsequent suit may not be identical in whole or in part with the cause of action of the earlier suit. That also is a points to the fact that the question of abatement in such a suit should not be adopted as a stringent measure. The High Courts of Madras, Patna and Karnataka have taken the view that the exemption under Order 22 Rule 4 may be prayed even after abatement and before final judgment (see AIR 1969 Madras 309, AIR 1979 Patna 239, AIR 1984 Karnataka 1) while our Court (as mentioned above) Orissa and Calcutta have taken a different view (see AIR 1964 Orissa 39, Patna has taken different view in AIR 1988 Patna 147 and AIR 1975 Calcutta 12), but as indicated above I leave it open for the present. As found above one legal heir of the deceased is already on record, so I hold there was no abatement and the learned Court had jurisdiction to pass the order. 17. That being the position an order passed by the trial Court exempting the plaintiff from substituting the heirs is valid order and there was no error of jurisdiction in the impugned order, and accordingly this revision is dismissed. I leave the parties to bear their own cost.