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1999 DIGILAW 160 (HP)

BADRI PRASAD SOOD v. JAI DEV

1999-08-13

D.RAJU

body1999
JUDGMENT D. Raju, C.J.—The above revision petition even at the threshold can be thrown out as not only frivolous but also vaxatious litigation which has been filed by the first defendant in civil suit No. 74 of 1997 by way of a revision petition under Section 115 of the Code of Civil Procedure against the order dated 1.4.1999 passed by the learned Sub-Judge, 1st Class (II), Palampur in the suit on an application filed under Order 22, Rule 4 of the Code of Civil Procedure, whereunder the learned trial Judge has chosen to allow the application by ordering the legal representatives of the deceased second defendant to be brought on record. As could be seen from the order of the learned trial Judge, the suit has been filed for recovery of possession by way of ejectment as also for recovery of Rs. 7,200/- said to be the arrears of rent for the period from 1.4.1994 to 31.3.1997 at the rate of Rs. 200/- per month. The case of the plaintiffs as would be seen from the plaint itself which has been filed as Annexure P-4 in this revision petition is that the plaintiffs and the second defendant are co-owners in the property, that the plaintiffs have inducted the first defendant as their tenant in respect of the shop from which he is sought to be evicted, that the second defendant one of the co-owners did not join the plaintiffs and if the court is of the view ultimately that the second defendant is in connivance with the first defendant and has received the rent, then in that case, the decree for arrears of rent be passed against the second defendant. While the suit was pending, it appears that one of the co-owner, who did not join with the plaintiffs and, therefore, was impleaded as the second defendant, died on 23.3.1998. But the plaintiffs claiming that they had no sufficient knowledge of the second defendant and they came to know of the same on 12.6.1998 has filed the application in question under Order 22, Rule 4, C.P.C. and sought for the impleading of the legal representatives of the deceased second defendant by stating in the application filed for the purpose as follows:— "That the plaintiff is living away at Manali Distt. Kullu, where he is employed in Railway Deptt. Kullu, where he is employed in Railway Deptt. and was not knowing about the death of Shri Jagar Nath so when he came to Palampur on 12.6.95 he was informed as such, he filed this application. Hence the delay or abatement if any, be condoned in the ends of justice. It is, therefore, prayed that the legal heirs of Jagar Nath be ordered to be impleaded and abatement, if any be condored in the ends of justice." 2. It is only the first defendant-petitioner who appears to have opposed the said application by filing a reply contending that the plaintiffs were aware of the death of the second defendant even on 23.3.1998 since, according to the petitioner herein, they participated in the last rites and since even as per the claim that the plaintiffs came to know of the death on 12.6.1998, the application has been filed 12 days after the permissible three months period and consequently, the suit abated and in the absence of any application for condoning the delay under Section 5 of the Limitation Act and the relief for setting aside the abatement, the same is liable to be dismissed. The learned trial Judge has passed the order allowing the application with the following reason:— "I have heard the learned counsel for the parties and have gone through the application and reply. Since the defendant No. 2 had expired on 23.3.98, but no such certificate to this effect has been placed on record and more so, there are many other plaintiffs. The plaintiffs are seeking relief against defendant No. 1. Therefore, the application of the applicant under Order 22, Rule 4, CPC is allowed and delay in filing the application is condoned. Now to come up for amended memo of parties on 18.5.99." Relentless, the petitioner has come up with the above revision petition. Mr. Rajnish Maniktala, learned counsel for the petitioner contended that in the absence of an application within the stipulated period of limitation, the suit abated and the abatement is automatic and it does not depend upon the passing of a separate order for that purpose. According to the learned counsel, such abatement vests a valuable right with the petitioner-defendant and the same could not have been nullified by the learned trial Judge by passing an order of the nature under challenge. According to the learned counsel, such abatement vests a valuable right with the petitioner-defendant and the same could not have been nullified by the learned trial Judge by passing an order of the nature under challenge. Argued the learned counsel further that the applicants-plaintiffs before the court below have not given any sufficient cause or reason for condoning the delay also and that the court below has not chosen also to give sufficient reasons either to condone the delay or to decide the question as to whether the suit abated either in whole or part and if not, for what reason and if only abated partly, as to with what consequences and in the absence of such consideration and decision, the order of the court below cannot be sustained. 3. Learned counsel in support of the stand taken as above has placed reliance upon the decisions reported in Union of India v. Ram Charan, AIR 1964 SC 215; Krishan Lal v. Beant Singh, AIR 1974 HP 52; S.R. Gaitonde v. J.J. Fenseca, AIR 1976 Coa 11; Dina Nath v. Amar Nath, AIR 1987 HP 44; Smt Shilawanti v. Kishore Chand, AIR 1977 P & H 369; Bahadur Singh v. Har Kaur, AIR 1971 P&H 328; Manorma v. Chittar, AIR 1990 MP 112; P.K. Ramachandran v. State of Kerala, AIR 1998 SC 2276; B.S. Singh v. B.D. Singh, AIR 1973 SC 204; Municipal Council, Mandsaur v. Fakirchand and another, (1997) 3 SCC 500; Bakshish Singh v. Arjun Singh, (1996) 8 SCC 323; Bibijan v. Murlidhar, (1995) 1 SCC 187; Mangal Singh v. Rattne, AIR 1967 SC 1786 and Anant Ch. Sahu and others v. Dhruba Ch. Padhan (Dead) and Dhodia Padhan and others, AIR 1990 Orissa 33". 4. In AIR 1964 SC 215 (supra), reliance has been placed on the observations contained therein that mere allegation about belated knowledge of death of opposite party is not sufficient cause and that reasons leading to not knowing of death within reasonable time must be stated and in any event the limitation for filing an application under the relevant Article of the Schedule to the Limitation Act equivalent to Article 120 of the Limitation Act, 1963 starts from the date of death of the respondent and not from the date of knowledge on the part of the applicant concerned of such death. To the same effect is the decision reported in AIR 1974 HP 52 (supra) AIR 1976 Goa 11 (supra) and AIR 1987 HP 44 (supra) holding in addition also that the abatement is automatic and takes effect when no application is made within 90 days for condonation of delay. The other decisions have been relied upon to contend that if no application is filed within the permitted period of ninety days, the proceedings must abate and it could be set aside only if it is proved that the party was prevented by sufficient cause and in the absence of proof of such sufficient cause by acceptable material, the court -would not readily condone the delay and the law of limitation has to be applied with full rigour. In my view, the principles laid down in AIR 1973 SC 204; (1997) 3 SCC 500; (1996) 8 SCC 323 and (1995) 1 SCC 187 (supra) have no relevance to the case on hand. By placing reliance upon AIR 1967 SC 1786 and AIR 1990 Orissa 33 (supra), it has been contended that though failure to implead the legal representatives of unnecessary party may not result in the abatement of the suit in the case on hand, the second defendant cannot be said to be an unnecessary party, but a necessary party, since according to the learned counsel for the petitioner, against whom the relief has also been sought for and, therefore, the suit, according to the learned counsel for the petitioner, must have been held to have abated in its entirety including against the first defendant. 5. I have carefully considered the submissions of the learned counsel for the petitioner. There can be no serious doubts or controversy about some of the principles found observed in the decisions relied upon for the petitioner, but the question is as to how far their application is relevant to the present case to justify the stand taken for the first defendant-petitioner in this revision petition. By virtue of the amendment to the Code of Civil Procedure by Central Act No. 104 of 1976, Rule 10-A has been inserted in Order 22 w.e.f. 1.2.1977 obligating a Pleader appearing for a party to the suit when he comes to know of the death of that party whom he was representing to inform the Court about it. By virtue of the amendment to the Code of Civil Procedure by Central Act No. 104 of 1976, Rule 10-A has been inserted in Order 22 w.e.f. 1.2.1977 obligating a Pleader appearing for a party to the suit when he comes to know of the death of that party whom he was representing to inform the Court about it. The question of abatement will arise only if the party who died was a sole party or even if the party so dead was one among the other parties, yet the cause of action is joint and it did not survive the death of that party resulting in the total abatement of the suit claim. As indicated earlier, it is not the first defendant-petitioner whose legal representatives are sought to be brought on record since he is alive and the person who died is only one of the co-owners of the property in dispute and who is in the nature and position of a plaintiff and since he did not join with the plaintiffs and there was a possible apprehension of his colluding with the first defendant, he came to be impleaded as second defendant. So far as the recovery of possession is concerned, indisputably the property has been let to the first defendant, who for his business purpose is in occupation and possession of the property and it is his ejectment and recovery of possession from him which is sought for. So far as the second relief relating to the recovery of rent for the period noticed above is concerned, it has been prayed that if the Court finds ultimately that the rent for the premises belonging to the plaintiffs and the second defendant was being collected and appropriated by the second defendant, a decree may be passed for arrears of rent against the second defendant. This would make it beyond any doubt that the relief sought for against the second defendant is not a relief jointly with the first defendant or by way of primary liability. This would make it beyond any doubt that the relief sought for against the second defendant is not a relief jointly with the first defendant or by way of primary liability. On the other hand, it was an alternative relief so far as the recovery of arrears of rent is concerned that has been sought for against the 2nd defendant, in case and only if the court finds on trial that the rent in its entirety for the demised premises has been paid to the second defendant to make him, in such circumstances, liable for the payment of rent by him to the extent he is found to have received from the first defendant, to the plaintiffs. While that be the position, there is hardly any scope for anyone contending that the suit abated in its entirety. First of all, the plaintiffs will have, in my view, no locus-standi whatesover either to object for the legal representatives of the second defendant being brought on record as long as they themselves did not object and unless it can be shown or substantiated by the petitioner-first defendant that the suit in entirety or the cause of action abated as a whole, he has no legal grievance to challenge such an order by filing any revision petition under Section 115 of the Code of Civil Procedure. As observed earlier, the relief sought for against the second defendant was in the alternative only and that too in respect of recovery of arrears of rent, if it has been found by the Court below after trial that he has received the rent for the period in question. Consequently, it is a total mis-conception to even claim that the death of the second defendant has resulted in either abatement of any claim in the suit, particularly of the claim made against the first defendant who is primarily sought to be proceeded against by fastening liability on him in the first instance for the payment of arrears of rent for the period noticed in the plaint and for recovery of possession also from the first defendant. 6. The learned trial Judge would have done well to have written a little elaborate order instead of expressing his views in a crytic manner, but in my view, that does not in any way undermine the efficacy of the order so passed. 6. The learned trial Judge would have done well to have written a little elaborate order instead of expressing his views in a crytic manner, but in my view, that does not in any way undermine the efficacy of the order so passed. It has been rightly pointed out that the plaintiffs &re seeking relief against the first defendant, meaning thereby that the death of the second defendant does not result in any abatement. The reliance placed by the learned counsel for the petitioner on some of the decisions, particularly the one reported in AIR 1976 Goa 11 (supra) proceeds on a wrong understanding of the scope of the principles laid down therein. The case on hand is not one where merely the relief of substitution of the legal representatives has been sought for. Though, cryptic in expression relief specifically has been sought for not only for condonation of delay, but also for setting aside the abatement and to such a case, particularly on the peculiar facts and circumstances of the case as noticed above and in the nature of the order passed by the trial Judge, there is hardly any scope for applying the decision relied upon by the learned counsel for the petitioner to record any relief in favour of the petitioner in this case. Though as indicated earlier, the petitioner will have no legitimate grievance to oppose the application for bringing on record the legal representatives of the second defendant, when they themselves did not object and were prepared to abide by the order, the factual allegations made that the plaintiffs were living away from the place where the deceased second defendant lived and death occurred is sufficient reason and nothing .wrong could be attributed to the order of the learned trial Judge, in condoning the delay also. In addition to all the above reasons, I am also of the view that it has been often repeatedly held that the rules of procedure be construed and enforced for doing justice and that the order of the court below render, in my view, substantial justice and also does not call for any interference in existence of the revisional jurisdiction of this Court. In my view, there are absolutely no merits whatsoever in the revision and to say the least the revision is borne out of a sense of desperateness. 7. The revision fails and shall stand dismissed. In my view, there are absolutely no merits whatsoever in the revision and to say the least the revision is borne out of a sense of desperateness. 7. The revision fails and shall stand dismissed. C.M.P. No. 238 of 1999: 8. In view of the dismissal of the revision petition, this application shall also stand rejected. Revision dismissed.