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2006 DIGILAW 148 (MP)

Raghuwar Prasad v. Ramadevi

2006-01-25

S.L.JAIN

body2006
ORDER 1. Invoking appellate jurisdiction of this Court under Order 43 Rule 1 (k) of the Code of Civil Procedure (hereinafter referred to as the "Code"), appellant-plaintiff has filed this appeal calling in question the correctness, legality, validity and propriety of the order dated 12.10.1998 passed by the First Additional District Judge, Sagar in CS No. 36-A/96 whereby the application of the appellant under Order 22 Rule 9 of the Code has been dismissed. 2. Facts leading to filing of this appeal are that : plaintiff filed a suit against the defendants-respondents for declaration of his title on the ground of adverse possession. On 26.9.1991, Shri Roop Singh Yadav, Advocate filed his power on behalf of defendant Siyarani (now dead). The case proceeded ex parte against Siyarani. No written statement was filed by her. On 31.11.1998 plaintiff Raghuwar Prasad was examined during trial. During his cross examination, he expressed his ignorance about the whereabouts of Siyarani and also as to whether she is alive or dead. The power of attorney holder of defendant No.3 Sudha Devi informed the Court that Siyarani had died two years before. Thereupon plaintiff sought time from the Court to bring the -LRs of Siyarani on record. The trial Court stopped the examination of plaintiff and granted time to bring the LRs of Siyarani on record. 3. Only two days thereafter, plaintiff on 15.1.1998 filed an application under Order 22 Rule 4 of the Code. Reply to the application was filed by defendants No.1 to 3 on 24.5.1998 stating therein that Siyarani died on 22.7.1994. The fact of this death was in the knowledge of the plaintiff because message regarding death of Siyarani and her last rites were sent to the plaintiff also but the plaintiff did not care to bring the LRs of Siyarani on record, therefore, the suit has abated. 4. An application under Order 22 Rule 4 (4) of the Code was also filed on 22.4.1998 by the plaintiff for exemption from necessity of substittuing the LRs of Siyarani who failed to file writen statement and failed to appear and contest the suit at the hearing. Alongwith this application; an application u/s 5 of the Limitation Act was also filed for condonation of delay on the ground that he had no relation with Siyarani since long. Alongwith this application; an application u/s 5 of the Limitation Act was also filed for condonation of delay on the ground that he had no relation with Siyarani since long. She died at Pendra Road, Bilaspur which is a distant place from Sagar where the plaintiff resides and the plaintiff could not learn -about the death of Siyarani. 5. On 22.4.1998 also, plaintiff filed an application under Order 22 Rule 9 of the Code for setting aside the abatement. The application was opposed by defendants No.1 to 3 on the ground that plaintiff had the knowledge of death of Siyarani since long before but deliberately due to sheer negligence plaintiff did not file an application for bringing the LRs of Siyarani on record and the plaintiff's suit automatically abated. 6. The trial Court dismissed the application on the ground that even if it is accepted that the plaintiff learnt about the death of Siyarani on 31.1.1998 he should have applied under the provisions of sub-rule (4) of Rule 4 of Order 22 of the Code within 60 days under Article 121 of the Limitation Act but in the present case admittedly, plaintiff learnt about the death of Siyarani on 31.1.1998 and he filed an application under Order 22 Rule 4 of the Code for bringing the LRs of Siyarani on record but alongwith that, application u/s 5 of the Limitation Act was not filed. Application u/s 5 of the Limitation Act was filed· on 22.4.1998 i.e. on 105th day after the death of Siyarani while the application ought to have been within 60 days. No explanation has been given for the delay of 45 days in filing the application. 7. The trial Court also observed that the plaintiff did not act with due diligence and had been extremely careless, therefore, he is not entitled to the benefit of Order 22 Rule 4 (4) of the Code. The trial Court also found that the name of Siyarani was recorded in the revenue records as co-owner therefore, she was not a formal defendant but was a necessary party. 8. It is against this order of the trial Court rejecting the application, that the appellant has filed this appeal. 9. I have heard Shri Alok Aradhe counsel for appellant and Shri Dinesh Agarwal counsel for respondents. 10. 8. It is against this order of the trial Court rejecting the application, that the appellant has filed this appeal. 9. I have heard Shri Alok Aradhe counsel for appellant and Shri Dinesh Agarwal counsel for respondents. 10. Learned counsel for appellant contended that in the present case Siyarani did not file her written statement though she was represented by her counsel Shri Roop Singh Yadav, therefore, trial Court should have exempted the plaintiff from necessity of substituting the LRs of Siyarani. Siyarani neither filed written statement nor appeared in the case to contest the suit and the case proceeded ex parte against her. In such case, Court should have pronounced the judgment against her notwithstanding her death and the same would have been presumed to have been pronounced before the death took place. 11. The contention is acceptable. It is true that application to exempt the plaintiff from necessity of substituting the LRs of non-contesting defendant was filed after the abatement has taken place but sub-rule (4) of R. 4 of O. 22 of the Code opens with the words "Court whenever it thinks fit". These words accord the Court discretion of wide amplitude to be exercised at any time before the actual disposal of the case. When the counsel for the deceased defendant did not announce her death for years and the plaintiff learnt about her death only when the power of attorney holder of Sudharani informed the Court about the death of Siyarani, the delay in making application cannot be attributed to plaintiff. It is not the finding of the Court that the plaintiff had learnt about the death of Siyarani prior to the information given in Court by power of attorney holder of Sudharani. If the conditions for applying sub-rule (4) of Rule 4 are fulfilled, Court should have applied the provisions of O. 22 R. 4 (4) of the Code. 12. The Court can dispense with substitution of LRs of deceased defendant even without setting aside the abatement at any stage of the suit or before delivery of judgment. See Rajnath Sahgal and others v. Shiva Prasad Sinha and others [AIR 1979 Patna 239], Gurubasappa Siddappa (deceased by LRs) and another v. Nagendrappa Veerabhadrappa Angadl (deceased by LRs) [AIR 1984 Karnataka 1], and yog Raj Puri v. yogeshwar Raj Puri and others [AIR 1982 Delhi 62]. 13. See Rajnath Sahgal and others v. Shiva Prasad Sinha and others [AIR 1979 Patna 239], Gurubasappa Siddappa (deceased by LRs) and another v. Nagendrappa Veerabhadrappa Angadl (deceased by LRs) [AIR 1984 Karnataka 1], and yog Raj Puri v. yogeshwar Raj Puri and others [AIR 1982 Delhi 62]. 13. It is not necessary for invoking the power of exemption conferred by sub-rule (4) of Order 22 Rule 4 to make an application within the specified time. In fact even an application for this purpose is not required and the Court by looking into the record can itself grant the exemption. The power has been conferred on the Court and invoking of the same by an application of the plaintiff is not a condition precedent for its exercise. See Abdul Hasan v. Kirti Saran and others [AIR 1983 Allahabad 182]. Thus, the trial Court committed grave error in rejecting the application under Order 22 Rule 4 (4) of the Code. 14. Even otherwise application under Order 22 Rule 4 of the Code was filed within 2-3 days of the knowledge of the death. The application u/s 5 of the Limitation Act was also filed stating that plaintiff learnt about the death of Siyarani only when the relatives of the deceased informed about her death. Sufficient cause was shown for delay in filing the application. In this background, trial Court should have allowed the application filed under Order 22 Rule 4 of the Code. Once it is found that the application was filed within 60 days of the knowledge of the death, the application cannot be said to have been bared by limitation. There was enough justification for allowing the application under Order 22 Rule 4 of the Code and setting aside the abatement. 15. For the reasons stated above, plaintiff is exempted from necessity of substituting the LRs of deceased Siyarani who failed to file written statement and subsequently failed to appear and contest the suit at the hearing and the case was proceeded ex parte. However, this will not take away the right of LRs of deceased Siyarani to get themselves substituted or brought on record as necessary party. . 16. Accordingly I allow the appeal and the impugned order passed by the trial Court is set aside. Plaintiff is exempted from necessity of substituting the LRs of deceased Siyarani. Costs as incurred.