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2002 DIGILAW 1506 (RAJ)

STATE BANK OF INDIA v. LEELAM KHAN

2002-08-30

S.K.KESHOTE

body2002
Judgment S. K. KESHOTE, J. ( 1 ) THIS revision petition u/s 115 CPC is directed by the plaintiff petitioner against the order dated 3/11/1989 of the Addl. District Judge N. 6, Jaipur city, Jaipur passed in Civil Suit No. 88/89 under which order the application filed by the plaintiff petitioner under Order 22, Rule 4 r/w Order 6, rule 17 and Section 151 CPC was dismissed. ( 2 ) THE facts of the case raised in this revision petition are to be briefly stated. ( 3 ) THE parties in this order henceforth are mentioned as plaintiff and defendants for brevity and sake of convenience. The plaintiff filed a suit against the defendants Leelam Khan, bhanwar Lai Samodia and Prem Prakash Goyal for recovery of Rs. 2,39,577. 94 in the court of District Judge, Jaipur City, Jaipur. The defendant leelam Khan applied for medium term loan for purchasing a chasis of a truck and for building the body thereof. A loan of Rs. 1,98,625/- was advanced by the plaintiff and an agreement of medium term loan by hypothicating the vehicle i. e. truck has been executed by defendant No. 1. The defendant nos. 2 and 3 stood guarantor and executed guarantor-deed in favour of the defendant No. 1. The loan has not been repaid and that is how the suit has been filed for recovery of the same with interest in the court. ( 4 ) IN the suit it is stated that the written statements were filed by the defendant No. 1 leelam Khan only and other defendant guarantors have not chosen to file the written statement. ( 5 ) ON 11. 5. 1988 when first witness of plaintiff was being examined by the trial Court, an application came to be filed by Shri Rajesh saxena Advocate on behalf of the defendant no. 1 and stated therein that Leelam Khan has died. It was also orally revealed by somebody whom the advocate for plaintiff took to be representing some of the defendants that bhanwar Lai Samodia has also expired. The plaintiffs witness could not have been examined. The officers of Vishvakarma Branch of the petitioner bank, its counsel Shri B. P. Gupta and Shri Sudershan Kumar Soni did not have any knowledge about the death of Leelam khan or death of Bhanwar Lai till 1. 5. 1988. The plaintiffs witness could not have been examined. The officers of Vishvakarma Branch of the petitioner bank, its counsel Shri B. P. Gupta and Shri Sudershan Kumar Soni did not have any knowledge about the death of Leelam khan or death of Bhanwar Lai till 1. 5. 1988. The officer-in-charge of the petitioner bank was informed by its advocate to verify about the death or these two defendants. Naturally, to collect this information some time is needed. On 30. 5. 1988 requisite information was furnished by the officer-in-charge of the case. It is informed that Leelam Khan had died on 3. 2. 1988 leaving behind surviving him by heirs and legal representatives details of which has been given in para 8 of the revision petition. Bhanwar Lai Samodia was reported to have expired on 2. 8. 1986 leaving behind surviving him by heirs and legal representatives as mentioned in the same para. ( 6 ) SRI B. P. Gupta Advocate of the petitioner on 31. 5. 1988 passed on the above information to Shri Sudershan Soni, Advocate. Shri Soni drafted application under Order 22. Rule 4 r/w Order 6, Rule 17 and Section 151 cpc, got it typed and signed by the officer -in-charge of the case. In these formalities 4 days were taken. 5. 6. 1988 was Sunday and there were summer vacation in the Civil Courts from 6. 6. 1988 to 2. 7. 1988 and 3. 7. 1988 was Sunday. This application was filed on 4. 7. 1988. ( 7 ) REPLY to this application is submitted by the legal heirs and representatives of Leelam khan. It is averred therein that Bhanwar Lal samodia defendant expired in 1985. The officer of the plaintiff bank had the knowledge of the death of that person as well knowledge about the names of the heirs and legal representatives of Leelam Khan, but they did not make any application within 90 days. ( 8 ) IT is submitted that Leelam Khan expired on 3. 2. 1988 and despite of having full knowledge of death, no steps were taken to bring his heirs and legal representatives on record within 90 days. ( 9 ) THE heirs and legal representatives of deceased defendant Bhanwar Lal Samodia have also filed reply to this application and it is stated that the suit has already been abated. 2. 1988 and despite of having full knowledge of death, no steps were taken to bring his heirs and legal representatives on record within 90 days. ( 9 ) THE heirs and legal representatives of deceased defendant Bhanwar Lal Samodia have also filed reply to this application and it is stated that the suit has already been abated. ( 10 ) AN affidavit is filed by Sudershan Soni advocate of his own and stated therein that only on 11. 5,1988 the fact of death of Leelam khan and Bhanwar Lai came to the notice of the plaintiff and their advocate when it is being revealed by defendants counsel in the court. Before 11 5. 1988 it was not within their knowledge. Learned trial Court under its order dated 4. 7. 1988 dismissed this application filed by the plaintiff petitioner, hence this revision petition. ( 11 ) MR. Soral, learned counsel for the plaintiff petitioner submitted that the learned trial Court has totally ignored the provisions as contained under Order 22, Rule 10-A CPC. It is submitted that the learned trial Court has not considered the position of the plaintiff, and the fact that the plaintiff being an institution, it is very difficult for it to find out when the other side had died and who are his heirs and legal representatives. Relying on the decision of the Apex Court in the case of Union Bank of India v. Kanal Bala, Mr. Soral submitted that in identical case an application filed by the bank for substitution of legal heirs and representatives of the deceased dependents after 8 years was allowed. It is next contended by the learned counsel for the plaintiff petitioner that the learned trial Court has over looked the provisions of Sub-rule (4) of Rule 4 of Order 22 CPC. The defendant No. 2 Bhanwar lal Samodia was not contesting the suit. The court has passed an order on 23. 7. 1984 to proceed ex-parte against him. He has not filed the written statements in the suit. Reliance is placed on the decision of this court in the case of Girdhari Lai v. Laxmi Narain. The defendant No. 2 Bhanwar lal Samodia was not contesting the suit. The court has passed an order on 23. 7. 1984 to proceed ex-parte against him. He has not filed the written statements in the suit. Reliance is placed on the decision of this court in the case of Girdhari Lai v. Laxmi Narain. It is urged that the learned trial Court has ignored yet another important provision as contained in sub-rule (5) of Rule 4 of Order 22 CPC which cast a duty on the court to assist the plaintiff which was ignorant about the death of the defendant and could not for that reason make an application for substitution of the legal heirs and representatives within limitation and sufficient cause being shown to set aside the abatement. Mr. Soral submitted that in this case affidavit of Shri Sudershan Soni, Advocate has been filed giving out therein sufficient cause for the delay made in filing of the application and the court should not go by the form, but substance would have been looked into. It is submitted that the rules of procedure are nothing but hand-maid of justice. Looking to the facts of this case the court should have condoned the delay rather to reject the application. In support of his contentions, learned counsel for the plaintiff petitioner placed reliance on the following decisions : 1. Sangram Singhs case. 2. Shital Prasad Saksena v. UOI. 3. Bhag Singhs case. ( 12 ) LASTLY it is contended that the application under Order 22, Rule 4 CPC filed by the plaintiff could have been construed also as application under Order 22, Rule 9 CPC. It is submitted that title and provision of law mentioned on the application is not conclusive but substance is to be looked into. The application was duly supported by the affidavit of the advocate. Concluding his submissions, Mr. Soral, learned counsel for the plaintiff petitioner submits that in case the order of the court below is allowed to stand, it will cause irreparable loss and injury not only to the plaintiff but public fund. ( 13 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the plaintiff. ( 14 ) THERE is no dispute on the facts; (1) that the defendant Leelam Khan has expired on 3. 2. ( 13 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the plaintiff. ( 14 ) THERE is no dispute on the facts; (1) that the defendant Leelam Khan has expired on 3. 2. 1988; (2) the deceased defendant Bhanwar lal has not filed written statements in the suit; (3) trial Court ordered on 23. 7. 1984 to proceed ex-parte against him. (4) 5. 6. 1988 was Sunday; (5) from 6. 6. 1988 to 2. 7. 1988 the courts were closed for summer vacations; (6) 3. 7. 1988 was Sunday; (7) the application under Order 22, rule 4 r/w Order 6, Rule 17 and section 151 CPC has been filed on 4. 7. 1988; (8) Shri Sudersan Soni, Advocate, filed his affidavit in support of this application which remained uncontroverted; (9) On 11. 5. 1988 the first witness of the plaintiff was present in the court of examination; (10) the defendants counsel filed an application reporting about the death of Leelam Khan. ( 15 ) THE affidavit filed by Shri Sudarshan kumar Soni, Advocate, in the court below has not been replied by the non-petitioners. The fact that 5th of June, 1988 was Sunday, there was summer breaks in the Civil Court from 6th of June, 1988 to 2nd of July, 1988, 3rd of July, 1988 was Sunday and this application for substitution of heirs and legal representatives of deceased defendants No. 1 and 2 was submitted on 4th of July, 1988 stand uncontroverted. ( 16 ) LEELAM Khan, defendant No. 1, has expired, undisputedly, on third of February, 1988. The limitation for filing application under o. 22, R. 4 CPC for bringing on record this heirs and legal representatives in the suit was upto 3rd of May, 1988. The limitation for filing application under O. 22, R. 9 CPC is of 60 days and it expired during the summer breaks. On reopening of the courts the plaintiff-petitioner filed this application for bringing on record heirs and legal representatives of deceased defendant No. 1 Leelam Khan. In view of these undisputed facts in the suit, the plaintiff petitioner was not required to file an application under Section 5 of the Limitation act so far as to the application under O. 22, r. 4 CPC relates to the death of defendant No. 1 Leelam Khan is concerned. In view of these undisputed facts in the suit, the plaintiff petitioner was not required to file an application under Section 5 of the Limitation act so far as to the application under O. 22, r. 4 CPC relates to the death of defendant No. 1 Leelam Khan is concerned. ( 17 ) THE learned trial Court has not considered that mentioning of the provision on application is not conclusive and final. It is the substance of the matter is to be looked into. The application under O. 22, Rules 4 and 9 cpc may be a composite application. It is an era of doing substantial justice to the parties in litigation and to proceed in the matter having justice oriented approach. Not only this, the courts are to consider that unscrupulous litigants do not take benefit of technicalities of law or inaction and omission, though it may be a bona fide one on the part of the opponent. ( 18 ) HERE the suit has been filed by the plaintiff petitioner-the Bank, for recovery of the amount of outstanding loan advanced to deceased defendant No. 1 Leelam Khan. It is being the money of the public funds, it is peoples money. He has not repaid the same. The suit has been filed for its recovery. How far it is justified on the part of his heirs and legal representatives to contest this application for brining them on record, taking a plea that separate application under O. 22, R. 9 CPC has not been filed. If we go by the substance of the application titled under O. 22, R. 4 r/w O. 6, r. 17 and Section 151 CPC duly supported by an affidavit of the Advocate, there could not have been any difficulty with the court below to construe it to be a composite application. The abatement of the suit is automatic and in the facts of this case and keeping in view that this application is filed within 60 days of the expiry of the period of 90 days from the date of death of defendant No. 1 Leelam Khan, the learned trial Court should have allowed it rather than to dismiss it so as to avoid unjust enrichment of the heir and legal representative of the deceased defendant No. 1. ( 19 ) IT is a case where unscrupulous defendant has dishonestly withheld the peoples money, bank had to file a suit and on this technical approach it has been got dismissed as having been abated, The learned trial court has not looked into the matter having justice oriented approach, and to do substantial justice and to see that unscrupulous litigants do not get unjust enrichment. The learned trial Court has also not considered the provisions contained in Rule 10-A of O. 22 CPC. This Rule has been inserted by the Act No. 104 of 1976 which came into force with effect from 1st of february. 1977. Insertion of this provision in 0. 22 CPC by the Parliament was with the object and purpose that an unscrupulous litigant may not take benefit of such technicalities. But having and adopted this technical approach the learned trial court has made it wholly unworkable and nugatory. This Rule puts an obligation on a pleader to communicate to the court about the death of a party on whose behalf he appeared in the Court. This reads,"10-A. Whenever a pleader appearing for a party-to-the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist. " ( 20 ) IT is pleaded in the reply filed to the application of the plaintiff petitioner for bringing on record heirs and legal representatives of deceased defendants that the plaintiff petitioners were known of the death of defendants and the names of their heirs and legal representatives, but they have not produced any material or evidence on record of the suit in support thereof. ( 21 ) THE learned Court below has not recorded a finding that the plaintiff petitioner had the notice of the death of the defendants no. 1 and 2 as well as the names of their heirs and legal representatives. The counsel for the deceased defendant No. 1 Leelam Khan has brought to the notice of the court this fact only on 11. 5. 1988. 1 and 2 as well as the names of their heirs and legal representatives. The counsel for the deceased defendant No. 1 Leelam Khan has brought to the notice of the court this fact only on 11. 5. 1988. Rule 10-A of O. 22 CPC shall become redundant and rendered nugatory in case still this approach is made by the courts below in the matter of substitution of heirs and legal representatives of deceased defendant/ defendants. Where plaintiff is ignorant of death of defendant and he could not make the application for substitution of his heirs and legal representatives within the prescribed period of limitation and this fact is not disbelieved by the court, the matter is to be considered sympathetically and to take a lenient view and approach and allow the application for substitution of heirs and legal representatives rather than to permit a suit to go as having been abated. Same principles were applied as per the provisions of the CPC as stood prior to the amendment made therein under the Act no. 104 of 1976. ( 22 ) IN this case where we go by the date of information given to the court by the counsel for the death of the defendant No. 1, the application has been filed under O. 22, R. 4 cpc within 90 days. In all the eventualities the application is filed before the expiry of the limitation prescribed for filing of the application under O. 22, R. 9 CPC. In these facts, it is stated at the cost of repetition, it would not have been an approach contrary to the provisions of CPC if the court would have taken it to be a composite application and granted the same and ordered for substitution of the. heirs and legal representatives of deceased defendant no. 1 in the suit. That way if the matter would have been looked into, proceeded, considered and decided by the court below, it would have been in furtherance of the object and purpose for which the amendments are being made, inserted and incorporated in the CPC by the Act No. 104 of 1976. The approach of the learned trial Court that as the application under O. 22. R. 9 CPC has not been filed, the automatic abatement of the suit cannot be set aside, is wholly arbitrary and perverse. The approach of the learned trial Court that as the application under O. 22. R. 9 CPC has not been filed, the automatic abatement of the suit cannot be set aside, is wholly arbitrary and perverse. ( 23 ) SO far as to the application filed for bringing the heirs and legal representatives of deceased defendant No. 2 Bhanwar Lal samodiya on record is concerned, suffice it to say that the order of the learned trial Court cannot be allowed to stand as it has been passed without taking into consideration the provisions of Sub-Rule (4) of R. 4 of O. 22 CPC. Sub-rule (4) has been inserted in R. 4 of O. 22 cpc by Act No. 104 of 1976 which came into effect w. e. f. 1. 2. 1977. It provides that whenever the court 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. ( 24 ) IT is not in dispute that the deceased defendant no. 2 Bhanwar Lai Samodiya has not filed the written statement in the suit. He stood a guarantor for repayment of the loan taken by the defendant No. 1 Leelam Khan. The learned trial Court ordered on 23. 7. 1984 to proceed ex parte against him. The suit is by the Bank for recovery of the loan money. In view of these facts it is a fit case where the learned trial Court should have exempted the plaintiff from the necessity of substituting the heirs and legal representatives of the deceased defendant no. 2. In case the learned trial Court would have taken a little care to read this provision and the nature of the suit, it would have exercised powers under sub-rule (4) of R. 4 of o. 22 CPC in favour of the plaintiff petitioner so far as it relates to substitution of heirs and legal representatives of deceased defendant no. 2 is concerned. 2 is concerned. ( 25 ) IN case the order of the learned trial court is allowed to stand it will certainly occasion a failure of justice and will cause irreparable injury to the plaintiff petitioner and ultimately to the public at large. It is the peoples money which will go in the pocket of unscrupulous persons resulting in unjust enrichment of loanee like Leelam Khan and as a result of his death, of his legal heirs and legal representatives. This order otherwise also is perverse and cannot be allowed to stand. Here in this revision petition also nobody has put in appearance for the heirs and legal representatives of the deceased defendant though they have been impleaded as party. Service has been effected on them by publication of notices in the newspaper. ( 26 ) FROM these facts it comes out and speaks of the conduct of these persons who are not concerned, willing and desirous to repay the amount taken as a loan from the State bank of India by the deceased defendant No. 1. The heirs and legal representatives of the deceased defendants otherwise have a pious obligation to repay the loan taken by their father from the Bank. In such matters they themselves should have voluntarily come forward with the scheme of repayment of loan amount. Rather they contested the application and ultimately because of perverse approach of the trial Court, succeeded to get the suit dismissed as having been abated. The court should not be a silent spectator and further to bow down to the legal technicalities and requirement of law where ultimate result thereof is loss to the public fund. Where there comes a conflict between the law and the public interest, the court may have to find out the ways to protect public interest without deviating and destroying the law. ( 27 ) IN the result, this revision petition succeeds and the same is allowed. The order dated 3. 12. 1989 of the Additional District judge No. 6 Jaipur City, Jaipur in Civil Suit no. 88 of 1989 is quashed and set aside, in exercise of powers under sub-rule (4) of R. 4 of o. 22 CPC the plaintiff petitioner is hereby exempted from bringing on record the heirs and legal representatives of deceased Bhanwar lal Samodiya, defendant No. 2. 1989 of the Additional District judge No. 6 Jaipur City, Jaipur in Civil Suit no. 88 of 1989 is quashed and set aside, in exercise of powers under sub-rule (4) of R. 4 of o. 22 CPC the plaintiff petitioner is hereby exempted from bringing on record the heirs and legal representatives of deceased Bhanwar lal Samodiya, defendant No. 2. The application filed by the plaintiff petitioner for bringing on record the heirs and legal representatives of deceased defendant No. 1 Leelam Khan is allowed and his heirs and legal representatives, the non-petitioners No. 1/1 to 1/4, are substituted as defendants No. 1/1 to 1/4 in the suit. ( 28 ) THOUGH nobody has put in appearance on behalf of the defendants No. 1/1 to 1/4, but 1 find and consider it to be a fit case where cost is to be awarded in favour of the plaintiff petitioner. Accordingly, the non-petitioners no. 1/1 to 1/4 are directed to pay a sum of Rs. five thousand as costs of the revision petition to the plaintiff petitioner. The learned trial court is directed to decide the suit within a period of six months from the date of receipt of a certified copy of this order. In case this amount of costs is not paid, the plaintiff petitioner is free to bring this fact to the notice of this court by filing a simple note. As and when such a note is filed, the registry is directed to circulate the same with main papers of the matter. Revision allowed.