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2005 DIGILAW 809 (GAU)

Lakhi Patwary v. Madhabi Talukdar

2005-12-01

H.N.SARMA

body2005
JUDGMENT H.N. Sarma, J. 1. Heard Mr. S. Sharma, learned Counsel for the appellants and also heard Mr. C.K. Sharma Baruah, learned Senior Counsel appearing on behalf of the respondent Nos. 1 and 2. 2. This appeal arises out of a composite order dated 30.11.2002 passed by the learned Civil Judge, Senior Division No. 2, Guwahati in Title Suit No. 53/1992. By the said order, the learned trial court rejected the prayer of the plaintiffs/appellants for setting aside the abatement by condoning the delay in filing the petition for substitution of the legal heirs of the deceased defendant Nos. 3 and 5. The learned trial court also rejected the prayer made by the heirs of the deceased defendant No. 3 for imp leading them as party defendant in the Suit in exercise of power under Order 1, Rule 10 of the Code of Civil Procedure. 3. By filing T.S. No. 53/1992 on 18.6.1992 in the court of learned the then Assistant District Judge No. 1, Guwahati, the plaintiffs/appellants, inter alia, prayed for a declaration that the sale deed No. 4026 dated 26.7.1991 of the Guwahati sub-registry is fraudulent, collusive and null and void and. the same is not binding upon the plaintiffs and is liable to be cancelled. In the aforesaid suit, an order of injuction restraining the defendants from the construction of any boundary wall or any other constructions in the disputed property having been passed by the learned trial court in Misc.(J) Case No. 52/92 vide order dated 19.6.1992 and subsequently after hearing the parties, the learned trial court having vacated the same on 25.9.92, the plaintiffs preferred an appeal challenging the same, being No. MA (F) 120 of 1992 before this Court. 4. In the meantime, during the pendency of the said appeal before this Court, the defendant No. 3 expired in the year 1996 and the defendant No. 5 expired in the year 1997. The plaintiffs/appellants filed applications for substitution of the legal heirs of the deceased defendant Nos. 3 and 5 in the appeal before this Court. The said appeal was finally disposed of vide judgment and order dated 19.7.2001 in the absence of the learned Counsel for the appellants. The reasons for which according to Mr. Sharma, learned Counsel for the appellants was that the name of the counsel conducting the appeal on behalf of the appellants were not shown in the cause list. The said appeal was finally disposed of vide judgment and order dated 19.7.2001 in the absence of the learned Counsel for the appellants. The reasons for which according to Mr. Sharma, learned Counsel for the appellants was that the name of the counsel conducting the appeal on behalf of the appellants were not shown in the cause list. However, the aforesaid substitution was not brought to the notice of the Court by the learned Counsel for the respondents/defendants, who was present at the time of hearing and accordingly, no order was passed in those substitution petition filed in the appeal. 5. When the matter remanded back to the learned trial court for disposal of the Suit applications No. 2515 of 2001 and No. 2517 of 2001 were filed praying for substitution of the legal heirs of the defendant Nos. 3 and 5 respectively before the learned trial court. Both the applications were filed on 11.10.2001. A separate application praying for condonation of delay in preferring the appeal was also filed by the plaintiffs/appellants wherein the prayer for setting aside the abatement was also made. Objections were also filed on behalf of the present respondent Nos. 1 and 2 against the prayer for substitution filed by the plaintiffs/appellants. Further, a separate application being No. 7533 of 2002 dated 1.7.2002 was also filed by the legal heirs of the deceased defendant No. 3 under Order 1, Rule10 of the C.P.C. praying for impleading them as defendants in the Suit alleging substantial interest in the Suit. The learned trial court heard all the applications and by a composite order dated 30.11.2002 dismissed the prayers so made by the plaintiffs/appellants and the legal heirs of defendant No. 3 praying for substitution and impleadment. The aforesaid composite order is challenged in the Misc. appeal by the plaintiffs/appellants. 6.I have considered the rival submissions made by the learned Counsel for the parties and also perused the connected materials available on record. Record discloses that both the deceased defendant Nos. 3 and 5 filed their respective written statements in the Suit on 10.8.1992. 7. Although, Mr. C.K. Sharma Baruah, learned Senior Counsel appearing on behalf of the respondent Nos. 6.I have considered the rival submissions made by the learned Counsel for the parties and also perused the connected materials available on record. Record discloses that both the deceased defendant Nos. 3 and 5 filed their respective written statements in the Suit on 10.8.1992. 7. Although, Mr. C.K. Sharma Baruah, learned Senior Counsel appearing on behalf of the respondent Nos. 1 and 2 has pointed out that a part of the order rejecting the prayer for impleadment made by the legal heirs of the defendant No. 3 under Order 1 Rule 10 of the C.P.C. is not appealable and accordingly, no appeal will lie against that part of the order. However, it is submitted by the learned Senior Counsel that the appeal would lie against an order passed under Order 22 Rule 4 of the C.P.C. refusing to substitute the names of the legal heirs of the deceased defendants. The aforesaid submission made by Mr. Sharma Baruah cannot be entertained as it is the principle of law when a composite order is passed, apart of which is appealable and part of which is not appealable, the non-appealable part can also be scrutinized in the appeal filed against the appellate part. On that principle, rejection of the prayer for impleament made by the legal heirs of the deceased defendant No. 3 can be scrutinized and examined in this appeal. 8. Perusal of the impugned order discloses that one of the legal heirs of the deceased defendant No. 3, Binode Patowary is already on record as defendant No. 4, the learned trial court rejected the prayer made by the other legal heirs of the deceased defendant No. 3 on the ground that they have not filed the petition for setting aside the abatement and without making a prayer for setting aside abatement, the prayer under Order 1 Rule 10(2) C.P.C. could not be considered. 9. 9. Order 1 Rule 10(2) is an independent provision and is not controlled by Order 22 Rule 4 of the C.P.C. Order 1 Rule 10(2) reads as follows: Order 1 Rule 10(2) provides an independent power upon the Court to add any party improperly joined, whether as plaintiff or defendant whose presence before this Court is necessary in order to enable the Court effectively and completely to adjudicate the matter upon and settle all the questions involved in the Suit." The learned trial court totally failed to apply the proper judicial mind to the aforesaid dictum of law. The said provision has been incorporated in the Code for advancement of the cause of justice. It is an independent provision authorizing and empowering to implead or striking out any party whose presence is necessary for effective and complete adjudication of the dispute. 10. The said provision is designed to formulate justice and further its end and not to be refused casually and in a cavalier manner as has been done by the learned trial court in the instant case. The learned trial court even did not apply her mind to consider what the law provides under Order 1 Rule10 of the C.P.C. The said provision is not subject to the provisions of Order 22 and accordingly the rejection of the prayer made by the other legal heirs of the deceased defendant No. 3 on the count of not filing of any application for setting aside the abatement, is totally misconceived. S Accordingly, that part of the order stands set aside and quashed. Submission of Mr. C.K. Sarma Barua that neither the Respondent No. 3 nor their heirs are necessary party in the Suit cannot be entertained at this stage; such plea can be decided only framing necessary issue to that effect, if raised. Accordingly that part of the order rejecting the prayer for impleadment filed under Order 1 Rule 10(4) by heirs of defendant No. 3 is set aside and quashed. 11. The legal heirs of the deceased defendant No. 3 who filed this application for impleadment as party defendant having steps into the shows of their deceased father vide application No. 7533 dated 1.7.2002 ought to have been allowed and accordingly, the same stands allowed. Thus, names of the legal heirs of defendant No. 3 should be incorporated as party defendant in the Suit. 12. Thus, names of the legal heirs of defendant No. 3 should be incorporated as party defendant in the Suit. 12. Regarding the refusal to substitute the legal heirs of the defendant No. 5, it has been held by the learned trial court that the plaintiffs and the deceased defendant No. 5 being near relatives and the lack of knowledge about the death of the defendant No. 5 is not known to the plaintiff is not believable and although, the said defendant died in the year 1997 and the plaintiffs claim that they filed petition' for substitution before the High Court wherein no order was passed by the High Court. The other aspects that took into consideration of the learned trial court is that the plaintiffs filed an application for substitution of Respondent praying for setting aside of the abatement. Accordingly, on such grounds, the prayer for impleament of the legal heirs of the defendant No. 5 by way of substitution was rejected. In the petition No. 777 of 2002 filed by the plaintiff it clearly discloses that the said application was filed for condoning the delay and for setting aside the abatement in filing the substitution petition of defendant No. 5. 13. Although, initially there was a wrong in mentioning the name of the defendant No. 5 in the applications for substitution vide petition No. 776 of 2002 dated 8.3.2002, the petitioner disclosing the same prayed for an amendment but the learned trial court did not pass any order on the said prayer. The said petition was admittedly registered in the Registry, hence an incumbent or a judicial duty is case upon the learned trial court to take note of the said application and pass appropriate judicial order thereon; but this has not been done due to non-application of mind, by the learned trial court. In the application for substitution, the plaintiffs/defendants it is averred that the plaintiff is an illiterate widow and is a housewife and does not know about the court' proceedings and the other plaintiffs are minor school going children who were represented by the plaintiff No. 1, the widowed mother. 14. It is admitted at the bar that during the pendency of the MA(F) No. 120 of 1992 an application praying for substitution of defendant No. 5 was filed before this Court. 14. It is admitted at the bar that during the pendency of the MA(F) No. 120 of 1992 an application praying for substitution of defendant No. 5 was filed before this Court. In the said application, no order was passed at the time of disposed of the appeal in the absence of the counsel for the appellant. It was also not pointed out by the learned Counsel appearing on behalf of the respondents regarding the pendency of such petition for substitution. The matter has been remanded back for disposal of the main Suit. Then the petitioner filed another application for substitution of the defendant No.5 before the learned trial court. In such a circumstances, it is not understood as to how the plaintiffs can be blamed. The learned trial court refrains from mentioning any reason for rejection of the prayer of substitution of the defendant No. 5 except saying that plaintiff failed to explain their delay of 797 days with satisfactory grounds. 15. In dealing with this aspect of procedural matter in deciding a Suit was considered by the Apex Court in the case of Bhagwan Swaroop v. Mool Chand,, as referred by Mr. S. Sharma, learned Counsel for the plaintiffs/appellants. At paras 12, 14 and 15, the Apex Court has held as follows: 12. It is no doubt true that a Code of Procedure "is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up". Procedural laws are no doubt devised and enacted for the purposes of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the handmaid of justice, the Court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is, however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Justice means justice to the parties In any particular case and justice according to law. If procedural laws are properly observed, as they should be observed, no problem arises for the Court for considering whether any lapse in the observance of the procedural law needs to be excused or overlooked. As I have already observed depending on the facts and circumstance of the particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper Orders which will serve the interests of justice best. 14. Civil Procedure Code requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a particular period provided the cause of action survives. If the legal representatives are not brought on record within the stipulated period, certain consequences follow and the action abates either wholly or partially depending on the facts and circumstances of a particular case. The Code further provides that an application may be made for setting aside the abatement within a stipulated period. It is now well settled that an abatement can be set aside at any time even beyond the period prescribed for making in application for setting aside the abatement, if sufficient cause is shown explaining the delay in the making of the application. It is now well settled that an abatement can be set aside at any time even beyond the period prescribed for making in application for setting aside the abatement, if sufficient cause is shown explaining the delay in the making of the application. If, irrespective of the provisions of the Code and the merits of the case, abatements are to be set aside as a matter of course merely on the ground that abatement is only a consequence of non-compliance of law of procedure and substantial justice is denied to the parties, the result may really amount to a denial of justice and in an indefinite prolongation of a litigation. 15. The provision fixing a particular time for making an application for bringing legal representatives on record with the consequence of the suit or appeal abating if no application is made within time, have been enacted for expeditious disposal of cases in the interest of proper administration of justice. It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned. For doing justice to the parties, the Courts have consistently held that whenever, sufficient cause is shown by a party at default in making an application for substitution, abatement will have to be set aside as the good cause shown for explaining the delay in making the application is sufficient justification to deprive the other party of the right that may accrue to the other party as a result of the abatement of the suit or appeal. The Courts have also consistently ruled that laches or negligence furnish no proper grounds for setting aside the abatement. In such cases, taking into consideration all the facts and circumstance of a case, the Court may set aside the abatement, even if there be slight negligence or minor laches is not making an application within the time provided an over all picture of the entire case, requires such course for furthering the cause of justice. In such cases, taking into consideration all the facts and circumstance of a case, the Court may set aside the abatement, even if there be slight negligence or minor laches is not making an application within the time provided an over all picture of the entire case, requires such course for furthering the cause of justice. When negligence and laches are established in the part of the party who seeks to set aside the abatement, the application of such a party should be entertained only in the rarest of cases for furthering the ends of justice only and on proper terms. 16. Records of the case do not disclose any such conduct, which disentitle the plaintiffs/appellants from substituting the legal heirs of the defendant No. 5 in the instant case. But the learned trial court in a very mechanical manner rejected the said prayer. It is submitted by Mr. C.K. Sharma Baruah that the matter can be dealt with by this Court in terms of the provisions under Order 22 Rule 4(4) of the C.P.C. as the defendant No. 3 and 5 have not contested the Suit. I am not inclined to accept this submission in view of the fact that both the defendant Nos. 3 and 5 had already submitted their written statements during their lifetime, whether they appear and contest a Suit that would be a subsequent conduct of such parties to be considered in the subsequent stage of the Suit inasmuch as, the suit is new only in a stage of filing documents and issues as disclosed by records. In that view of the matter, the prayer for substitution of defendant No. 5 stands allowed. 17. For the reasons stated hereinabove, this appeal is allowed. Send down the LCR immediately to the learned Court below. It is further observed herein that the Suit has already crossed 13 years in the meantime with no or little progress, and accordingly, over and above, a direction was given by this Court while disposing MA(F) 120/92, it is further directed that the learned trial court shall make an endeavour to dispose of the Suit as expeditiously as possible. Appeal allowed