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2007 DIGILAW 1606 (PAT)

Kalawati Devi v. Prem Shankar Sah

2007-09-28

MRIDULA MISHRA

body2007
Judgment Mridula Mishra, J. 1. Heard the counsel for the petitioners. No one appears for the opposite parties. 2. This application is directed against the order dated 6.12.2003 passed by the 3rd Additional District Judge, Bettiah in Misc. Appeal No. 52/2000 for setting aside the order dated 7.6.2000 passed by Munsif. Bettiah in T.S. No. 19 of 1995. Munsif, Bettiah by order dated 7.6.2000 has held that Title Suit No. 19/95 has abated on account of non-substitution of defendants no. 2, 6 and 13 within a period of limitation. 3. Title Suit No. 19 of 1995 was filed by Prem Shankar Sah against Ghuran Sah and others for a declaration that the execution sale in Execution Case No. 276 of 1955 is void. Defendant No. 1, Ghuran Sah, died on 7.2.2000. Defendant No. 2, Ram Chandra Sah, died on 19.7.1999. Defendant No. 6, Hafiz Mian, died on 23.6.1999 and defendant no. 13, Jado Lal Sah, died on 14.6.1999. The plaintiff filed two separate petitions on 11.4.2000 for substituting the legal heirs of Jadolal Sah and Abdul Hafiz. In the substitution petition it was stated that the plaintiff had no knowledge about the death of the defendants. He came to know about the death of defendants Jado Lal Sah after 5.8.2000 and filed substitution petition, as such the legal heirs, whose names have been mentioned in substitution petition should be substituted in place of Jado Lal Sah. So far as Abdul Afiz defendant no. 6 and Ram Chandra Sah defendant no. 13 is concerned they died on 23.6.1999 and 19.7.1999 respectively. Substitution petitions for substituting their legal heirs were filed well within time, but the same was wrongly filed in another Title Suit No. 254 of 1994, which is also being contested in between the same parties. The prayer of the plaintiff was that these substitution petitions be treated as filed in Title Suit No. 19 of 1995 on 30.8.99. The Title Suit No. 254 of 1994 had been filed for declaring the decree of Title Suit No. 137 of 1992 illegal and collusive. It was the prayer of the plaintiff that since the legal heirs of the deceased defendants have already been substituted in the main Title Suit No. 254/94 as such they should be treated as substituted in Title Suit No. 19/95. 4. It was the prayer of the plaintiff that since the legal heirs of the deceased defendants have already been substituted in the main Title Suit No. 254/94 as such they should be treated as substituted in Title Suit No. 19/95. 4. On the other hand, the contention of the defendants was that the plaintiff had full knowledge about the death of the defendants in spite of that he did not file petition for substitution within the statutory period of 90 days. The period of limitation has also expired for setting aside abatement. Both the Title Suit No. 254/94 and Title Suit No. 19/95 have been filed for different reliefs as such the substitution in Title Suit No. 254/94 cannot be deemed as substitution in Title Suit No. 19/95, for considering the period of limitation. The defendants have not been substituted, as such the suit itself has abated. 5. On consideration of the pleadings of the parties Munsif, Bettiah, decided that the plaintiff had filed a petition after 90 days without filing any petition for condonation of delay or any prayer for setting aside the abatement. As such, entire suit has abated.The plaintiff against the said order preferred Miscellaneous Appeal No. 52 of 2000 which had been allowed by the impugned order. The finding of the appellate court is that the plaintiff came to know about the death of Jado Lal Sah from the petition of the respondent dated 5.4.2000 and substitution petition was filed on 11.4.2000, well within the period of limitation from the date of the knowledge. Hence, it cannot be said that the substitution petition is barred by limitation. 6. Regarding the substitution of defendant no. 6 Hafiz Ansari @ Hafiz Mian and defendant no. 3, Ram Chandra Sah the finding has been recorded that the plaintiff had filed a petition for their substitution well within time on 30.8.1999 which was allowed simply because in the plaint, name of the substituted legal heirs were not impleaded within 30 days from the date of the knowledge, it cannot be said that the entire suit has abated under Order 6 Rule 18 C.P.C. The Order 6 Rule 18 C.P.C. relates to the amendment in the plaint and it has no application in case of substitution of the legal heirs. The substitution petition was filed under Order 22 Rule 4 C.P.C. and it was the duty of the court to implead the name of the legal representatives of the deceased, in respect of whom the order of substitution has been passed. The Misc. Appeal was allowed with these findings. 7. Being aggrieved by this order, one of the defendants have filed the present revision application. The grounds which have been taken by the petitioners in the revision application for challenging the impugned order is that the appellate court failed to consider that the suit itself was not maintainable, on account of dead persons having been impleaded as defendant nos. 15 and 16 in the suit. Similarly the reference of other defendants have been given whose legal heirs were not substituted and without substituting those legal heirs the appeal was heard and disposed of. It has been stated that the appeal itself was not ripe for hearing as such the impugned order passed against the dead persons is nullity in the eye of law. 8. The grounds which have been set forth by the petitioners were not raised before the appellate court. The impugned order has been passed specifically relating to the substitution of the defendants no. 2, 3, 6 and 13. In the impugned order each and every case has been specifically dealt and the reason has been assigned for recording the finding in favour of the plaintiff. I do not find that any error has been committed by the court below by setting aside the order passed by the Munsif, Bettiah, whereby the entire suit is held to have been abated. The reason assigned by the Munsif for the abatement of entire suit, itself was most erroneous and against the statutory provisions under the Code of Civil Procedure. The appellate court has rightly set aside the order passed by the Munsif and allowed the Misc. Appeal. 9. Accordingly, I do not find any merit in this civil revision application. It is dismissed.