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2003 DIGILAW 32 (ORI)

BENGALI KANDI v. SURENDRA BHOI

2003-01-16

P.K.TRIPATHY

body2003
P. K. TRIPATHY, J. ( 1 ) LEARNED Counsel for the petitioners is present. None appears for opposite parties 1 and 2. Learned counsel for the petitioners, on the request of Court, after verifying the case records, states that service of notice on all the opposite party members has been held to be sufficient. ( 2 ) IN view of the above submission, the civil Revision is taken up for disposal at the stage of admission. ( 3 ) THE order impugned in this Revision was passed by learned Civil Judge (Jr Division), bhubaneswar on 17-1-1994 in Misc. Case No 309 of 1989 by rejecting the application under Order 22, Rule 4 read with the application filed for setting aside abatment and the confirming order passed by learned 2nd Addl. District Judge, Bhubaneswar in Misc. No 97/10 of 1997/94. ( 4 ) AS it appears from the impugned orders and also from the contention of learned counsel for the petitioners, the sole defendant died on 4-1-1990 at a stage when the suit had been disposed of (being dismissed for default ). By then theapplication U/o 9 Rule 9, C. P. C. was pending vide Misc. Case No 309 of 1989. On 20-4-1990 application for substitution and setting aside the abatement was filed That application suffered from a delay of 17 days keeping in view the statutory period of 90 days from the date of death as per Article 120 of the Limitation Act. The application was filed within the time provided in Article 121 of the said Act. Petitioner's contention was that he was ill and was under treatment as an indoor patient from 2-4-1990 and was cured from the disease on 19-4-1990 and, therefore, there was delay. The trial Court though found the ground of illness and admission of the petitioner as an indoor patient true, but he refused to consider that as a good cause because petitioner did not produce discharge certificate from the hospital and accordingly rejected the application for substitution and setting aside abatement. Learned 2nd Addl Dist. Judge after re-stating the aforesaid factual aspect dismissed the appeal on the ground the suit is not pending (being dismissed for default) so the application under Order 22. Rules 4 and 9 was misconceived one and apart from that the court below did not pass order for abatement of the suit (being not pending ). Learned 2nd Addl Dist. Judge after re-stating the aforesaid factual aspect dismissed the appeal on the ground the suit is not pending (being dismissed for default) so the application under Order 22. Rules 4 and 9 was misconceived one and apart from that the court below did not pass order for abatement of the suit (being not pending ). ( 5 ) AFTER hearing learned counsel for the petitioners and going through the impugned orders, this Court finds that the jurisdiction vested in the trial Court as well as the appellate Court was not properly exercised by them with due application of mind to the facts and law involved and because of that jurisdictional error the impugned order is regarded as illegal. When the application under Order 9, Rule 9, C. P. C. was pending, keeping in view the provision in Section 141, C. P. C. the Courts below should have adopted the procedure which was provided for the suit and the application for substitution and setting aside abatement should have been properly considered. In the matter of condoning the delay, as has been stated by the apex Court in the case of collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, a liberal view should be taken. In the present case, the ground of illness advanced by the petitioners being found to be true it was too much for the courts below to consider 17 days delay as crucial to seal the fate of the petitioners so far as the civil proceeding is concerned. Under such circumstance, while setting aside the impugned orders learned Civil Judge (Jr. Division ). Bhubaneswar is directed to allow the application for substitution by setting aside the abatement and to proceed with the proceeding under Order 9. Rule 9, c. P. C. in accordance with law by restoring that MJC to file if that has already been disposed of in the meantime due to non-substitution. The Civil Revision is allowed accordingly. Revision allowed.