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2001 DIGILAW 1065 (PAT)

Dasmat Soren And Others v. Kumar Uday Singh

2001-11-28

R.M.PRASAD

body2001
Judgment R.M.Prasad, J. 1. On 3-5-2000, this Court issued notice to Respondents No, 1 to 12 to show-cause as to why this appeal be not disposed of at the stage of hearing under Order XLI, Rule 11 of the Code of Civil Procedure, and upon service of notice the matter has come up and has been heard for final disposal with the consent of the parties. 2. This appeal is directed against the order dated 24-12-1998 passed in Title Suit No. 358/95 by the Sub-Ordinate Judge I, Purnea whereby the plaintiffs petitioners for substitution and setting aside of abatement have been rejected and the Court has held that the suit stands abated as whole and dismissed the suit as abated. After filing of the suit, a petition was filed on behalf of defendants No. 1 and 2 on 2-9-1988 informing the Court that defendants Nos. 3,4 and 5 died long time back. A rejoinder was filed on behalf of the plaintiffs to the said petition on 10-9-1998 and thereafter on 29-10-1998, a petition for substitution was filed and later on 10-11-1998 the aforementioned petition for setting aside of abatement was filed. The Court on consideration of the fact that in the substitution petition, no date of birth has been disclosed regarding the death of defendants No. 3 to 5 and that only the names of the heirs of the deceased defendants are mentioned in the petition held that it was difficult to ascertain whether the substitution petition was filed within the statutory period of 90 days and consequently also held that the plaintiffs petition for setting aside of abatement is also of no avail. According to the learned Sub-Ordinate Judge, it was the duty of the plaintiffs to ascertain the date of death of deceased defendants No. 3 to 5. 3. It has been submitted by the learned Counsel for the appellants that in the petition filed on 2-9-1998 defendants Nos. 1 and 2 did not disclose any date of death of the deceased defendants. However, on the information given the plaintiffs filed the substitution petition on 29-10-1988, i.e., within 90 days of the said information and as a matter of abundant caution later filed a petition on 10-11 -1998 for setting aside of abatement, if any. 1 and 2 did not disclose any date of death of the deceased defendants. However, on the information given the plaintiffs filed the substitution petition on 29-10-1988, i.e., within 90 days of the said information and as a matter of abundant caution later filed a petition on 10-11 -1998 for setting aside of abatement, if any. According to the learned Counsel, the learned Sub-Ordinate Judge has erred in law in rejecting the said petitions solely on the ground that no date of death of the deceased defendants has been disclosed by the plaintiffs although the Court noticed about the fact that the petition clearly mentioned that from the petition filed on behalf of defendants Nos. 1 and 2 on 2-9-1998, it transpired that defendants Nos. 3, 4 and 5 have died and that the plaintiffs for the first time came to know regarding their death on 2-9-1998 filed a rejoinder on 10-9-1998. It has also been contended that in view of the fact that the plaintiffs are tribunal and illiterate persons the learned Sub-Ordinate Judge ought to have taken a lenient view of the matter in order to give substantial justice as has been held by numerous decisions of the Apex Court as well as this Court. He has placed reliance on the decision of this Court in the case of Chunni Singh V/s. Chanda @ Chandu Oraon and Ors. 1932 (1) PLJ 351, which also quotes the relevant portion of the decision of the Apex Court in the case of Bhagwan Swaroop and Ors. V/s. Mool Chand and Ors. -- . Learned Counsel for the plaintiffs-appellants has also submitted that in any view of the matter, the learned Sub-Ordinate Judge has committed grave error in dismissing the entire suit as abated in view of undisputed fact that the plaintiffs as well as defendants claim title over the suit land by virtue of separate settlement made by the State of Bihar. In support of this, he has placed reliance on the decision of the Apex Court in the case of Raghunath Keshava Kharkarv. Ganesh @ Madhukar Balakrishna Kharkar and Ors. -- . 4. Mr. Ambastha, learned Counsel appearing for Respondent Nos. 1 and 2, has not disputed that both the parties based their claim on the basis of separate settlement made in their favour by the State of Bihar. Ganesh @ Madhukar Balakrishna Kharkar and Ors. -- . 4. Mr. Ambastha, learned Counsel appearing for Respondent Nos. 1 and 2, has not disputed that both the parties based their claim on the basis of separate settlement made in their favour by the State of Bihar. Under such circumstances, he has not been able to defend the impugned order dismissing the entire suit as having abated in view of law settled. However, on the first point raised on behalf of the appellants, he contended that there is no infirmity in the impugned order rejecting the petition filed on behalf of the plaintiffs for substitution and/or for setting aside the abatement as it was the duty of the plaintiffs to furnish the date of death of the deceased defendants. In the absence of date of death, the learned Sub-Ordinate Judge has rightly found it difficult to ascertain whether the substitution petition has been filed within the statutory period of 90 days. 5. Under Order XXII, Rule 4 of the Code of Civil Procedure the suit abates if no step is taken for substituting the heirs and legal representatives of the deceased defendants within the time limited by law and Order XXII, Rule 9, C.P.C. is the provision for setting aside of abatement. Under Sub-rule (2) of the said provision the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the Receiver in the case of an insolvent plaintiff can apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit Only then Court can set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. Under Sub-rule (3) the provisions of sec. 5 of the Indian Limitation Act, 1877 has also been applied to applications under Sub-rule (2). 6. According to Mr. Ambastha, it is not even the case of the plaintiffs that they made any effort to find out the date of death of the deceased defendants and that they were prevented by any sufficient case. 5 of the Indian Limitation Act, 1877 has also been applied to applications under Sub-rule (2). 6. According to Mr. Ambastha, it is not even the case of the plaintiffs that they made any effort to find out the date of death of the deceased defendants and that they were prevented by any sufficient case. Thus, according to him, it is not a fit case for interference with the impugned order on account of failure on the part of the plaintiffs to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time. It is submitted that the mere allegation about his not coming to know of the death of the opposite party is not sufficient. The reasons leading to not knowing of death within reasonable time must also be stated which the plaintiffs completely have failed to disclose in the petition. In support of this, he placed reliance on the decision of the Apex Court in the case of Union of India V/s. Ram Charan -- . 7. In reply, learned Counsel for the appellants has submitted that it is true that there was no specific pleading in the petition that the plaintiffs made effort to find out the date of death but they clearly stated that from the petition filed on behalf of defendants No. 1 and 2 on 2-9-1998 it transpired that defendants Nos. 3,4 and 5 had died and the plaintiffs for the first time came to know regarding their death on 2-9-1998. However, till date even the defendants have not furnished the date of death of the deceased defendants including defendants Nos. 1 and 2 despite notice to them. 8. There cannot be any doubt that under Order XXII, Rule 4, it is the duty of the plaintiffs to bring on record the legal representative of the deceased defendant within the time limited by law, otherwise the suit shall abate as against the deceased defendants. 1 and 2 despite notice to them. 8. There cannot be any doubt that under Order XXII, Rule 4, it is the duty of the plaintiffs to bring on record the legal representative of the deceased defendant within the time limited by law, otherwise the suit shall abate as against the deceased defendants. It also cannot be doubted that mere allegation about belated knowledge of death of opposite party is not sufficient for setting aside the abatement under Order XXII, Rule 9, C.P.C. but this Court fails to appreciate as to how the proposition advanced on behalf of the respondents are relevant in the facts and circumstances of the present case, particularly when till date on date of death has been brought on the record by any parties. In the absence of date of death of the deceased defendants, in my opinion, the plaintiffs were not even required to file any petition under Order XXII, Rule 9 of the Code of Civil Procedure. The question involved in the present case is not as to whether the plaintiffs got belated knowledge of death of the defendants. Defendant Nos. 1 and 2 themselves filed the petition giving information to the Court about the death of the deceased defendants on 2-9-1998 without disclosing the date of their death and the plaintiffs filed the substitution petition on 29-10-1998 that was well within 90 days, the time limited by law. Learned Counsel for the respondents has failed to show any law according to which without the date of death the Court cannot consider for substitution of the heirs and legal representatives of the deceased defendants. Learned Counsel for the respondents has failed to show any law according to which without the date of death the Court cannot consider for substitution of the heirs and legal representatives of the deceased defendants. Over XXII, Rule 4, C.P.C. simply provides that "where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit." Sub-rule (3) provides that "where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant." No doubt, Art. 120 of the Limitation Act provides 90 days as the period of limitation from the date of death of the plaintiff, appellant, defendant or the respondent as the case may be, but in my opinion, if the date of death is not available or brought on record by any party that cannot deny the party from making an application to bring on record the legal representative of the deceased plaintiff/defendant. Learned Counsel for the respondents has not brought to my notice any provision which debars filing an application seeking substitution of legal representative of the deceased in the absence of date of death. It is only where the date of death is available on the record that the period of limitation will be relevant from that date as per the provision contained in Art. 120 of the Limitation Act, otherwise the date of knowledge will be the date of death for the purpose of computation of limitation and that too where there is no dispute about the death of the party. Any other interpretation, in my opinion, will lead to absurdity that legal representative of the deceased party cannot be brought on record although parties accept about the facturn of death which cannot be the intention of the legislature in incorporating the provision contained in Order XXII, Rule 4 in the Code of Civil Procedure. 9. This Court, thus, finds it difficult to sustain the impugned order and the same is, accordingly, set aside. The appeal is allowed, but without cost.