Research › Search › Judgment

Chhattisgarh High Court · body

2007 DIGILAW 93 (CHH)

Bhero Prasad v. State of M. P.

2007-02-05

B.M.GUPTA

body2007
JUDGMENT Brij Mohan Gupta, J. 1. This second appeal has been preferred by appellant/plaintiff No. 2 impugning the judgment dated 14th January, 2000 rendered by 2nd Additional District Judge, Vidisha, in Civil Appeal No. 133-A/99, by which the learned Judge has affirmed the order of the Trial Court dated 15-9-99 passed in C.S. No. 74-A/94 by Additional Civil Judge, Class I, Vidisha, wherein the learned Trial Judge has dismissed the applications under Order 1 Rule 10, Order 22 Rule 3 of CPC and under Section 5 of the Limitation Act and in consequence it was concluded that suit has been abated. 2. The brief facts, as revealed by both the judgments and agreed to by both the Counsel for the parties, are that appellant Bhero Prasad alongwith deceased Pannalal (co-plaintiff) filed one civil suit alleging therein that both the plaintiff were joint owners of the dispute land on the basis of a joint Patta, granted in favour of them, by the ex-ruler. When respondent Nos. 2 and 3 caused interference in the possession of the appellant and deceased co-plaintiff Pannalal, copy of the revenue record was obtained and then the appellant came to know on 24-8-82 that the names of the appellant and Pannalal were deleted from the revenue record, hence, the suit for declaration of title and injunction was filed. These facts were countered by the respondent Nos. 2 and 3 in their written statements in which it was mentioned that the disputed land is of Government land of which a Patta has been granted by the Government in favour of the respondent Nos. 2 and 3. During the pendency of the suit, appellant filed an application under Order 1 Rule 10 (2) of CPC on 3rd of December, 1998 mentioning therein that co-plaintiff Pannalal has died without any other heirs and the appellant is the sole heir, he being on record, the name of Pannalal is ordered to be deleted. In reply, on behalf of respondent Nos. 2 and 3 it was mentioned that Pannalal had died leaving one son and five daughters. Thereafter, the appellant filed two more applications on 11-5-99; one, under Order 22 Rule 3 of CPC an another, under Section 5 of the Limitation Act. In the applications, it has been mentioned that co-plaintiff Pannalal had left the village for the last 7-8 years, now he is dead, his L.Rs. Thereafter, the appellant filed two more applications on 11-5-99; one, under Order 22 Rule 3 of CPC an another, under Section 5 of the Limitation Act. In the applications, it has been mentioned that co-plaintiff Pannalal had left the village for the last 7-8 years, now he is dead, his L.Rs. be taken on record and vide reply filed by respondent Nos. 2 and 3 of the application under Order 1 Rule 10 as above, he came to know that Pannalal has died leaving some L.Rs. behind him, hence, the delay is required to be condoned. Both the applications were supported by the affidavit of the appellant. Both these applications were opposed by the respondents No. 2 and 3 by filing reply dated 22- 7-99 on the ground that deceased Pannalal has died before two years and this fact was in the notice of the appellant. In view of this, the suit has been abated. 3. Vide order dated 15th September, 1999 the learned Trial Judge dismissed the applications filed on behalf of the appellant on the ground that malafidely he informed the Court that Pannalal has died without any heirs, he was knowing the fact of his death since very beginning, the application has not been filed on behalf of the legal representatives of deceased Pannalal, the suit has been filed on the basis of the joint ownership, and as the legal representatives of one of the plaintiff's have not been brought on record in time, the suit has been abated. This order has been affirmed by First Appellate Court vide its impugned judgment dated 14-1-2000 as mentioned in Para No. 1. 4. Vide order dated 4-8-03 this appeal was admitted for final hearing on the following three substantial questions of law: (1) Whether application under Order 22 Rule 3, CPC alongwith application under Section 5 of the Limitation Act could be dismissed without holding enquiry as contemplated under Order 22 Rule 5, CPC? (2) Whether in view of the registered sale-deed executed by the deceased in favour of the plaintiff the suit could be dismissed as abated? (3) Whether the prayer for setting aside judgment is implicit in a prayer for bringing legal representative on record after seeking condonation of delay in moving the application? 5. Question No. 1: The provisions of Order 22 Rule 3 and Order 22 Rule 5 of CPC are as under: Rule 3. (3) Whether the prayer for setting aside judgment is implicit in a prayer for bringing legal representative on record after seeking condonation of delay in moving the application? 5. Question No. 1: The provisions of Order 22 Rule 3 and Order 22 Rule 5 of CPC are as under: Rule 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. - (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. Rule 5. Determination of question as to legal representative. -Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court Thus, as provided by Rule 3, when during pendency of the suit if any plaintiff dies and right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff dies and the right to sue survives, the Court on an application shall cause the legal representative of the deceased plaintiff to be made a party. As provided by Article 120 of the Limitation Act, within 90 days such application is to be moved. If within this time no application is moved, the suit shall abate so far as the deceased plaintiff is concerned. In this context, if we peruse the provision of Rule 5, it appears that as and when any dispute as to whether any person is or is not the legal representative of the deceased plaintiff arises, such question shall be determined by the Court. In this case there is no dispute about the proposed legal representatives. In this context, if we peruse the provision of Rule 5, it appears that as and when any dispute as to whether any person is or is not the legal representative of the deceased plaintiff arises, such question shall be determined by the Court. In this case there is no dispute about the proposed legal representatives. Dispute in this case is that whether within time prescribed, the required application was moved or not. Thus, so far as the framing of this question is concerned, it can only be concluded, that while deciding an application under Order 22 Rule 3 of CPC and under Section 5 of the Limitation Act, if any dispute arises about the status of the legal representatives, the enquiry as contemplated under Order 22 Rule 5 of CPC is necessary. But as observed herein above, the existence of this dispute, being not in this case, the decision of this question is irrelevant so far as the decision of this appeal is concerned. 6-A. Question No. 2 : Although nothing has been mentioned by the appellant in his aforementioned four applications, but on perusal of the record, it appears that on 17-12-97 one registered sale-deed dated 28th May, 1992 has been filed by the appellant alongwith other documents. This sale-deed shows that the land survey Nos. 52 and 54/1 total area 2.437 hectare was sold by deceased Pannalal to the appellant alongwith his brother Balaprasad while the suit land is survey Nos. 38 and 36. It is no where clarified whether both the lands are same or different. If for the sake of arguments the contention of Shri Sagoria, the leaned Counsel for the appellant is accepted for a while, that the disputed land was sold, then as provided by Order 22 Rule 10 of CPC in view of this fact, the suit may, by leave of the Court, be continued by both the purchasers as the interest of the deceased has been devolved to them. On 11th May, 1999 when the applications under Order 22 Rule 3 of CPC and under Section 5 of the Limitation Act were filed, suit was abated. Till then, no application is on record that the second purchaser Balaprasad be also taken on record in the capacity of purchaser of the share of deceased Pannalal as provided by aforementioned Order 22 Rule 10 of CPC. Till then, no application is on record that the second purchaser Balaprasad be also taken on record in the capacity of purchaser of the share of deceased Pannalal as provided by aforementioned Order 22 Rule 10 of CPC. Had the appellant been the sole purchaser of the interest of deceased Pannalal, then in that case he being on record, it could have been considered that suit does not abate, as by way of devolution of the interest/share of Pannalal to the appellant, he is on record. But the land is admittedly undivided and both the brothers, appellant and Balaprasad, have also jointly purchased the share of Pannalal in the disputed land, after the death of Pannalal, as the cause of action does not survive to the appellant alone, the suit cannot be continued as provided under Order 22 Rule 3 and Rule 10 of CPC. As it has been observed in Bibijan vs. Murlidhar 1995 (1) MPWN 209 (SC), Ram Samp and Ors. vs. Munshi and Ors. and Ramdas vs. Karanju 1990 (11) MPWN 109. In view of this, this question cannot be decided in favour of the appellant. 6-B. Question No. 2 : The ratio of the judgment rendered in PPK Copalan Nambiar vs. PPK Balakrishnan Nambiar and Ors. , by the Apex Court, as cited by the appellant, does not support the contention of the appellant in this case. In the case of PPK Gopalan, admittedly all the purchasers were on record. In view of that, it was observed by the Apex Court that by operation of Order 22 Rule 10 the interests of deceased have been devolved on the parties who are already on record. Herein this case Balaprasad is not on record. The ratio of another judgment of the Apex Court rendered in Bhavsingh (dead) by L.Rs. vs. Keshar Singh and Ors. , as cited on behalf of the appellant, also does not support the case of the appellant. On perusal of the facts of Bhavsingh's case (supra), it appears that it was filed by the plaintiff against defendant No. 1, the father and defendant No. 2, the son. vs. Keshar Singh and Ors. , as cited on behalf of the appellant, also does not support the case of the appellant. On perusal of the facts of Bhavsingh's case (supra), it appears that it was filed by the plaintiff against defendant No. 1, the father and defendant No. 2, the son. The disputed sale-deed was executed in favour of the son, Le., defendant No. 2 alone, hence, the contention that the other legal representatives of defendant No. 1, the father, have not been brought on record was not accepted in view of the fact that the sale-deed was in favour of the defendant No. 2 alone, who is living and on record and who can very well represent the estate. Here in this case Balaprasad being joint purchaser is not on record. 7. Question No. 3: As not disputed by any of the parties, this question is decided affirmatively in view of the observations of this Court in the cases of Stale of M.P. vs. Jay Singh (deceased) through his L.Rs. 2004 (1) M.P.H.T. 38 : 2004 (1) MPLJ 114 and Ramadhar Sharma vs. Sewaram s/o Shriram and Ors. 1999 (2) MPLJ 461, which have been cited on behalf of the appellant. 8-A. Apart from placing the arguments on 3 substantial questions of law, Shri Sagoria, the learned Counsel appearing on behalf of the appellant, has also drawn the attention of the Court on a judgment of the Nagpur High Court rendered in Gopikabai and Ors. vs. Narayan Govinda Samarth and Ors. AIR 1953 Nag135 and has submitted that an inquiry was required because an application of Section 5 of the Limitation Act cannot be decided on affidavit alone. In this case, while relying on an affidavit of the opposite party, it was concluded by the Court below that the applicant, who filed an application for substitution and setting aside the abatement, was having the information of death of the party. In this context, it was observed that no affidavit is required in support of such application or reply of the application and the affidavit cannot be treated as an evidence while deciding such application. The facts being different, the ratio of this order, cannot be utilized in favour of the appellant in this case. In this context, it was observed that no affidavit is required in support of such application or reply of the application and the affidavit cannot be treated as an evidence while deciding such application. The facts being different, the ratio of this order, cannot be utilized in favour of the appellant in this case. Although in this case both the Courts below have relied on the affidavit filed in support of the reply, however, that is not the only ground on which the applications filed by the appellant were dismissed. Without giving any importance or reliance to the affidavit in this case, even otherwise it is established as mentioned hereinabove that the applications were neither bonafide nor the cause mentioned for delay, is true. 8-B. On perusal of the record, it appears that following four applications and their reply are to be considered for the just decision of this dispute: (A) Application dated 3rd December, 1998 filed under Order I Rule 10 (2) of CPC in which the appellant applied that Pannalal had died without any heirs, the appellant being only heir and he being on record, the name of Pannalal as plaintiff is to be deleted. (B) Application dated 3-12-98 filed by the appellant under Order 6 Rule 17 of CPC mentioning therein that plaintiff Pannalal is dead, hence, his name is to be deleted. In Para 3 he has mentioned that Pannalal was his uncle, who died before 4 years without any heir. These two applications were opposed by the respondent Nos. 2 and 3 vide their reply dated 12-2-99 in which it was also mentioned that here are one son and five daughters surviving of deceased Pannalal. This fact is known to the appellant but while hiding this fact, he is deceiving the Court. (C) Application dated 11-5-99 filed by the appellant under Order 22 Rule 3 of CPC in which he has proposed five daughters and one son as legal representatives of deceased Pannalal to be taken on record. It is also mentioned in the application that for the last 7-8 years Pannalal had left the Village Pathariya, even prior to that he was casually living in the village, hence, the appellant was having no knowledge about his son and daughters. It is only because of the reply dated 12- 2-99 filed by respondent Nos. It is also mentioned in the application that for the last 7-8 years Pannalal had left the Village Pathariya, even prior to that he was casually living in the village, hence, the appellant was having no knowledge about his son and daughters. It is only because of the reply dated 12- 2-99 filed by respondent Nos. 2 and 3 he came to know about the existence of his legal representatives, hence, their names are to be taken on record. No date or year of death of Pannalal has been mentioned in this application. (D) Application dated 11-5-99 under Section 5 of the Limitation Act for condonation of delay in filing the application as mentioned in Clause (C) above, on the ground that before 8 years Pannalal had left the Village Pathariya and he was not the permanent resident of village, hence, the existence of his daughters and son was not known to the appellant. This fact was known to him vide reply dated 12-2-99 filed by the respondent Nos. 2 and 3 and as such delay ought to be condoned. These applications have also been countered by the respondent Nos. 2 and 3 on the ground that this fact was known to the appellant since very beginning that Pannalal had died two years back leaving 5 daughters and one son. Despite this knowledge, he has misled the Court. The age of the son and daughters is in between 28 to 65 years. Their marriages have been solemnized in the same Village Pathariya. This is wrong that only because of the reply appellant came to know about these facts. 8-C. While placing reliance on the following two judgments of this Court: (1) Chhotelal vs. Bachhilal (2) Ramnarayan vs. Bhaskar Shri Sagoria has further contended that conducting an enquiry and providing an opportunity to the appellant to adduce evidence in support of his application under Section 5 of the Limitation Act was required. When factual dispute, which cannot be decided without conducting an enquiry, this opportunity ought to be given on the request of the party or even otherwise by the Court. When factual dispute, which cannot be decided without conducting an enquiry, this opportunity ought to be given on the request of the party or even otherwise by the Court. But in the present case, as discussed herein above, deceased Pannalal being real uncle, resident of the same village and co-plaint of the suit based on joint Patta, this contention of the appellant cannot be accepted that he was having no knowledge about the death and the legal representatives of deceased Pannalal. On what basis the time of four years of death was mentioned in the application mentioned at point B in Para 8-B, has not been clarified nor any date, month or year of the death of Pannalal could be shown till date. It is also not clarified as to on what basis the appellant came to know about the death of Pannalal and also on what date he came to know about this fact. In view of this, neither the date nor the incident by which the appellant has come to know about the death of Pannalal has been mentioned. This fact is very material for the just decision of this dispute in view of the fact that for deciding an application under Section 5 of the Limitation Act, every day's delay is to be explained. The law Cramers have already allowed sufficient time for bringing the legal representative on record of the deceased party. Under Articles 120 and 121 of the Limitation Act, 90 days time has been allowed for filing an application to bring the legal representative on record and thereafter 60 days time has also been fixed for setting aside the abatement caused due to non-filing of the requisite application for bringing the legal representative on record. In absence of any date or time about the death or the knowledge of the appellant about the death of Pannalal, no time can be counted. All these circumstances reveal that the appellant was negligent so far as the proceedings of the suit is concerned. Due diligence in the proceedings of a suit is required. As such, in my considered opinion both the Court below have not committed any irregularity or illegality in passing of the impugned order. 8-D. In the case of Chhotelal (supra), the application was dismissed solely on the ground that the applicant ought to have applied in the writ petition before the High Court. As such, in my considered opinion both the Court below have not committed any irregularity or illegality in passing of the impugned order. 8-D. In the case of Chhotelal (supra), the application was dismissed solely on the ground that the applicant ought to have applied in the writ petition before the High Court. In this case, application for substitution was filed by a brother of deceased tenant/appellant for substituting his name on the basis of a will, for which it was to be decided, whether he is the real legal representative of the deceased appellant. In theses circumstances, it was observed that an enquiry under Order 22 Rule 5 was necessary alongwith with enquiry about the cause of delay etc. In the case of Ramnarayan (supra), application for seeking leave to defend was filed on the ground that the applicant could not consult the lawyer and the date fixed by the Court itself was falling after the expiry of the prescribed time. In these circumstances, necessity of enquiry was observed. But as discussed at length hereinabove, the facts of the present case are totally different, hence, the ratio of these two cases cannot fruitfully be utilized in favour of the appellant. 9. As discussed herein above the application under Order 22 Rule 3 of CPC has been filed after prescribed limit of time, hence, the suit has been abated as provided in this provision. For setting aside the abatement no sufficient cause has been mentioned. Whatever the case has been mentioned does not appear to be true. Consequently, the appeal being devoid of merits, is dismissed.