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2011 DIGILAW 1041 (BOM)

Nagpur Improvement Trust v. Sardar Mulkha Singh

2011-08-16

R.K.DESHPANDE

body2011
JUDGMENT : R.K. Deshpande, J. Rule made returnable forthwith. Heard the matter finally by consent of the learned Counsel appearing for the parties. 2. This petition challenges the order dated 21.4.2010, passed by the learned District Judge-3, Nagpur, rejecting the Misc. Civil Application No.329 of 2008 for condonation of delay caused in filing the application for setting aside the abatement of the appeal. The petitioner, Nagpur Improvement Trust (NIT) is the defendant in RCS No.503 of 1995 decreed by the Trial Court on 7.3.2001 in favour of the plaintiff. The petitioner challenged the said decree by filing RCA No.285 of 2001, which has been dismissed as abated on 18.3.2008. 3. Undisputed factual position is that the sole plaintiff Sardar Mulkha Singh died on 1.11.2003 during the pendency of the Regular Appeal No.285 of 2001 in which he was the sole respondent. On 17.2.2004, the Counsel for the plaintiff filed a Pursis in terms of Order 22 Rule 10A of the Civil Procedure Code. The contents of the said Pursis are reproduced below" "Pursis That in the instant matter it is learnt to the Counsel that the respondent Shri Mulkha Singh is expired. However, the date of death is not confirmed as soon as it will be available along with death certificate, the same will be filed on record. Hence this Pursis. CF Respondent" 4. On 26.4.2004, the Counsel for the appellant/NIT filed a Pursis Exh.9. The contents of which are reproduced below- "Pursis In view of the pursis filed by the counsel for the respondent dated 17.2.2004 regarding death of the respondent, Shri Mulka Singh, the appellant tried to collect the names and addresses of the legal heirs of the respondent. The concerning Divisional Officer sent its staff to the suit site. However, they refused to co-operate and did not disclose the details of the legal heirs of the respondent. Hence, this Pursis. Nagpur Dated : 26.4.2004 Appellant/nit It seems that for want of the names of the legal heirs of the plaintiff and the date of death of the plaintiff Sardar Mulkha Singh, the matter remained pending and ultimately on 18.3.2008, the Appellate Court passed an order of abatement of appeal. The said order is reproduced below- "Appellant failed to bring the legal heirs of deceased respondent on record though the respondent died long back. Appeal stands abated." 5. The said order is reproduced below- "Appellant failed to bring the legal heirs of deceased respondent on record though the respondent died long back. Appeal stands abated." 5. On 7.4.2008, four applications were filed by the petitioner (1) application for condonation of delay in setting aside the abatement, (2) application for setting aside the abatement, (3) application for condonation of delay in bringing the legal heirs of the deceased plaintiff on record and (4) application for bringing the legal heirs of the deceased plaintiff on record. In the application for condonation of delay it was stated that while verifying paper book, it transpired that one Kulwant Singh s/o Mulkha Singh has deposed before the Trial Court on behalf of Shri Mulkha Singh and hence, he is the legal heir of plaintiff. On 21.4.2010, the Appellate Court has rejected the MCA No.329 of 2008 for condonation of delay caused in filing the application for setting aside the abatement of appeal. The finding is recorded that there was delay of 1439 days caused in filing an application and hence, the same has not been explained making out a sufficient cause. This order is the subject matter of challenge in this petition. 6. The question is whether the Appellate Court was right in dismissing the Regular Civil Suit No.285 of 2001 as abated on 18.3.2008 and consequentially whether there was delay in filing an application for setting aside the abatement. Order 22 Rule 3 of the Civil Procedure Code, deals with the procedure in case of death of one of several plaintiffs or of sole plaintiff. The same is relevant and hence, reproduced below - "Order 22 : death, marriage and insolvency Of parties 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 for sole surviving plaintiff dies and the right to the 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 10A Order 22 is also relevant and the same is, therefore, reproduced below-- [Rule 10A. Duty of pleader to communicate to Court death of a party.- Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.] 7. The petitioner is the appellant in RCA No.85 of 2001 and is the original defendant. The father of the respondent was the original plaintiff and the respondent in RCA No.285 of 2001. During the pendency of the said appeal, the respondent/plaintiff expired and since the right to sue survived, it was for the appellant to bring the legal representative of the deceased plaintiff on record by filing an application under Order 22 Rule 3(1) of the Civil Procedure Code. If such application is not made within the time limited by law, the Court has to dismiss the appeal as abated under Sub-rule (2) of Rule 3 Order 22 of the Civil Procedure Code. 8. Rule 10A Order 22 of the Civil Procedure Code, reproduced above, casts a duty on the pleader appearing for a party to the suit to inform the Court about the death of that party. Upon receipt of such information, the Court has to give notice of such death to the other party. 9. 8. Rule 10A Order 22 of the Civil Procedure Code, reproduced above, casts a duty on the pleader appearing for a party to the suit to inform the Court about the death of that party. Upon receipt of such information, the Court has to give notice of such death to the other party. 9. The limitation for filing the application for bringing the legal representative of the deceased plaintiff on record, is governed by Article 120 of the Limitation Act, 1963, which runs as under – Description of application Period of limitation Time from which period begins to run 120.Under the Civil Procedure Code 1908 to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent made a party Ninety days The date of death of the plaintiff appellant defendant or respondent as the case may be. The period of limitation for setting aside the abatement is governed by Article 121 of the Limitation Act, 1963, which is reproduced below- Description of application Period of limitation Time from which period begins to run 121.Under the same Code for an order to set aside an abatement Sixty days The date of abatement. It is thus apparent that the period of limitation for bringing the legal representative of the plaintiff on record is of 90 days from the date of death of the plaintiff, whereas the period of limitation for setting aside the abatement is of 60 days from the date of abatement of the suit. 10. In order to dismiss the appeal, as abated, under Order 22 Rule 3(2) of the Civil Procedure Code, the Court must record a finding about the exact date of death of the respondent/plaintiff. If the fact of death of the party is disputed, then the evidence is also required to be laid to establish the death of the party. It is only upon recording the finding about the death of the concerned party, that an order of dismissal of appeal as abated, can be passed by the Court. Similarly, even for the purposes of counting of period of limitation of 90 days in terms of Article 120 of the Limitation Act, 1963, as reproduced above, the appellant must know the exact date of death of the respondent/plaintiff from which the limitation of 90 days would start running. Similarly, even for the purposes of counting of period of limitation of 90 days in terms of Article 120 of the Limitation Act, 1963, as reproduced above, the appellant must know the exact date of death of the respondent/plaintiff from which the limitation of 90 days would start running. In the absence of knowledge of the date of death of the respondent/plaintiff, it will not be possible for the appellant either to file an application for bringing the names of the legal heirs of deceased on record. 11. In this case, the Counsel for the respondent/plaintiff in Regular Civil Appeal No.285 of 2001, filed a Pursis dated 17.2.2004, informing about the death of Sardar Mulkha Singh, the plaintiff. This was in terms of Order 22 Rule 10A of the Civil Procedure Code, which casts a duty upon the Counsel to bring this fact to the notice of the Court and the other side. Perusal of the contents of Pursis reproduced earlier, shows that the date of death is not mentioned therein, but it is stated that the same is not confirmed and as soon as it becomes available, the same shall be furnished along with the death certificate. On 26.4.2004, the Counsel for the appellant/NIT filed a Pursis stating that the appellant tried to collect the names and addresses of the legal representatives of the deceased, but the details were not available due to non co-operation. 12. The Appellate Court passed an order on 18.3.2008, dismissing the appeal as abated without recording any finding as to the exact date of death of the respondent/plaintiff. In the application for condonation of delay caused in filing an application for setting aside abatement, the appellant/petitioner alleged that while verifying the paper book, it appeared that one Shri Kulwant Singh s/o Late Mulkha Singh Tuli, has deposed before the Trial Court for and on behalf of the respondent/plaintiff. Hence, the said Shri Kulwant Singh s/o Late Mulkha Singh Tuli, the only known legal heir is being brought on record. In response to these applications, the respondent herein filed his reply, stating that Sardar Mulkha Singh died on 1.11.2003 and this fact was brought to the notice of the appellant on 17.2.2004, but the appellant did not take any step to file an application for bringing the names of the legal heirs of Sardar Mulkha Singh on record. In response to these applications, the respondent herein filed his reply, stating that Sardar Mulkha Singh died on 1.11.2003 and this fact was brought to the notice of the appellant on 17.2.2004, but the appellant did not take any step to file an application for bringing the names of the legal heirs of Sardar Mulkha Singh on record. It is stated, the application was filed on 8.4.2008 and there was delay of 1620 days which has not been explained. Hence, the dismissal of the application for condonation of delay was claimed. 13. The Appellate Court has by an order impugned in this writ petition dismissed the application for condonation of delay on the ground that no sufficient cause was made for for condonation of delay. The finding is recorded that on 17.2.2004, the petitioner/NIT came to know about the death of the respondent/plaintiff and the application for setting aside the abatement was filed on 8.3.2008 and thus, there is delay of 1439 days. The further finding is recorded that no attempts were made to find out the legal representatives of the respondent/plaintiff on record. 14. Once it is held that no order of abatement of appeal could have been passed by the Appellate Court in the absence of finding on the date of death and no application for bringing the legal heirs of the deceased respondent/plaintiff could be filed in the absence of date of death, the question of delay in filing the application for bringing the legal heirs on record or causing delay in setting aside the abatement, does not at all arise. It is for the first time, that in response to the application for condonation of delay in setting aside the abatement, that the respondent has come forward with the exact date of death of the plaintiff on 1.11.2003. There was no proof placed on record prior to this date about the death of the respondent/plaintiff. Thus, there was no question even of filing an application for condonation of delay caused in bringing the legal representatives of respondent/plaintiff on record. The Trial Court has committed an error in dismissing the appeal as abated on 18.3.2008. Hence, the said order is liable to be set aside along with the order dated 21.4.2010 passed by the Appellate Court, which is impugned in this petition. 15. In the result, the writ petition is allowed. The Trial Court has committed an error in dismissing the appeal as abated on 18.3.2008. Hence, the said order is liable to be set aside along with the order dated 21.4.2010 passed by the Appellate Court, which is impugned in this petition. 15. In the result, the writ petition is allowed. The orders dated 18.3.2008 and 21.4.2010 passed by the learned District Judge-3, Nagpur, are hereby quashed and set aside. It is declared that there is no delay caused in filing the application for bringing the name of respondent as the legal representative of deceased plaintiff. The application for bringing the name of respondent as legal representative on record is allowed. Necessary amendment be carried out in RCA No.285 of 2001. Rule is made absolute in aforesaid terms. No order as to costs. Petition allowed.