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2000 DIGILAW 8 (CHH)

Phaguram Sahu v. Pyaribai

2000-11-21

R.S.GARG

body2000
ORDER R.S. Garg Ag. C.J. 1. By this petition under Section 115 of the Code of Civil Procedure the applicant/plaintiff seeks to challenge the correctness, validity and propriety of the order dated 20-10-97 passed in Civil Suit No. 160-A/97 by the learned First Civil Judge, Class-II, Bilaspur, refusing to accept the applicant's application filed under Order 22 Rule 4 of the Code of Civil Procedure and dismissing the suit as abated. 2. The facts necessary for the disposal of the present petition are that the defendant Malikram died on 19-3-96 but no information was given by the counsel appearing for the said Malikram either to the Court or to the counsel for the plaintiff. Therefore, up to 21 -8-96 the applicant/plaintiff did not make any application for substitution of the legal representatives of Malikram. It is worth noting that between 19-3-96 to 21-8-96 the counsel for the said Malikram appeared on as many as three occasions. On 21-8-96 counsel for the said Malikram declared in the Court that Malikram died, however, he did not give the date of the death or details of the legal represenla lives. The case was adjourned on that day to 18-10-96. On 18-10-96 the applicant/plaintiff made an application under Order 22 Rule 4, CPC but in his application he did not give the date of death. The application was replied on 18-10-97 and the correct date of death was given by the legal representative of the said Malikram as 19-3-96. From the said reply it became clear that the application filed on 18-10-96 was barred by limitation and the plaintiff was required to make an application for setting aside the abatement. The plaintiff did not do so. The matter was argued and by the order dated 20-10-97 the application was rejected and as the defendant No. 4 was treated to be a formal party the suit was dismissed as abated. 3. Being aggrieved by the said order of rejection of the said application and dismissal of the suit, the applicant/plaintiff has filed this petition. 4. Learned counsel for the applicant/plaintiff submits that aggrieved by the said order dated 20-10-97 the applicant had preferred a Misc. Appeal under Order 43 Rule 1, CPC but the said Miscellaneous Appeal No. 52/98 was dismissed in view of the fact that the said appeal was not maintainable and as the present revision was pending for consideration before this Court. Learned counsel for the applicant/plaintiff submits that aggrieved by the said order dated 20-10-97 the applicant had preferred a Misc. Appeal under Order 43 Rule 1, CPC but the said Miscellaneous Appeal No. 52/98 was dismissed in view of the fact that the said appeal was not maintainable and as the present revision was pending for consideration before this Court. 5. Learned counsel for the applicant submits that though an application for setting aside the abatement and condonation of delay was not filed in the suit but the tacts would show that the applicant for the t'irsl lime, came to know the de-tails on 21-8-96 and within three months of it he had filed the application for substitution of the legal representatives of the deceased. According to him the Court-below had acted technically and rejected the application. 6. On the other hand learned counsel for the non-applicant No. 1 submits that the limitation would start running from the date of death and not from the date of the knowledge. According to him on declaration of the death on 21-8-96 the application could be preferred showing the cause seeking condonation of delay and a prayer for setting aside the abatement. But in any case the limitation cannot start running from the date of the knowledge. 7. Undisputedly, the deceased died on 19-3-96 the limitation to make application was 90 days. No application was made within the prescribed period of limitation. An application for setting aside the abatement could be made within a further period of 60 days. But undisputedly the said application was not filed within the said period. Both the applications were to be filed latest by 19-8-96 but it was not done. It was declared before the Court on 21-8-96 that the person has died. For the period between 21-8-96 to 18-10-96 there is nothing on record to suggest as to why the present applicant had not filed the application in time. Assuming that the reply was filed on 18-10-97 but the present applicant even on that date or immediately thereafter did not make any application for setting aside the abatement and for condonation of delay and extension of time. In absence of these two applications obviously the application filed under Order 22 Rule 4, CPC could not be allowed. 8. During the pendency of the proceedings if a person dies, the interesl of such person becomes unrepresented. In absence of these two applications obviously the application filed under Order 22 Rule 4, CPC could not be allowed. 8. During the pendency of the proceedings if a person dies, the interesl of such person becomes unrepresented. If an application for substitution of the legal representatives is not made within the period prescribed by law, the said proceedings abate. The abatement of the proceeding is not required to be declared by the Court but is automatic. No Court has an authority to proceed with a matter where one of the party whose interest is in jeopardy or in issue is dead. The law requires records to be completed and all parties must have a proper notice of the proceedings. Where a person dies then his interest is succeeded by his legal representatives/successor or so, because the succession never remains in abeyance. In a given case wl.ere a party dies and an ignorance of the said death the other parlies and the Court proceed with the matter then a final judgment/order would be not binding on the legal representatives of the said party. If the said party has a substantial interest in the property in dispute then it is a duty cast upon the applicant/plaintiff to see that the proper application for substitution of the legal representatives and correction of the records is made. Any judgment/order passed, either in favour of or against the interest of the deceased would not be legal or in accordance with the law. Such a judgment/order would be a nullity. 9. True, it is that in the present case the applicant was informed of the death, for the first time on 18-10-96 but he did not say in his application for substitution of the legal representatives that he made any efforts to learn about date of death. If he could make enquiries about the legal representatives then he should have made an enquiry about the date of death. Present is not a case where the application for substitution of the legal representatives was filed within few days of the declaration of the death. The death was declared on 21-8-96 and the application for substitution was made on 18-10-96 i.e., almost after two months of the declaration. Present is not a case where the application for substitution of the legal representatives was filed within few days of the declaration of the death. The death was declared on 21-8-96 and the application for substitution was made on 18-10-96 i.e., almost after two months of the declaration. In the present case even after gaining knowledge about the date of death the applicant did not make any application for setting aside the abatement or for condonation of delay and extension of time for making such application. 10. When the plaintiff was seeking substitution of the legal representatives he was duty bound to show to the Court that his application was within limitation or in the alternative he was required to satisfy the judicial conscience of the Court that the application could not be filed for proper and valid reasons and therefore the delay deserved to be condoned and the abatement deserved to be set aside. 11. When the plaintiff/applicant was projecting the prayer on the foundation of the ignorance, he was duty bound to inform the Court that he did nol know about the date of death or in any case he made proper enquiries between 21-8-96 to 18-10-96. The ignorance about the death or the date of the death may provide a good and sufficient ground for condonation of delay and setting aside the abatement but there must be some pleadings or some application to that effect. In absence of any pleadings relating to the ignorance about the death or the date of death it would not be possible to condone the delay and set aside the abatement. 12. Taking into consideration the totality of the circumstances, in the absence of the pleadings relating to sufficiency of cause seeking condonation of delay and setting aside the abatement it cannot be held that the Court-below was unjustified in rejecting the application. I find no reason to interfere. The petition is dismissed.