Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1251 (PAT)

Pawan Kumar Sinha v. Dharnidhar Prasad Sinha

2012-09-06

SHAILESH KUMAR SINHA

body2012
ORAL ORDER 1. Heard learned counsel for the petitioners and Mr. Dharnidhar Prasad Sinha in person. A supplementary affidavit has been filed on behalf of the petitioner. 2. In this writ application the challenge is to the order dated 18.08.2007 passed by the Civil Judge, Senior Division, 8th Vaishali at Hajipur in Title Suit No. 162 of 1981, whereby the petition dated 04.08.2003 for substituting the name of respondent-Dharnidhar Prasad Sinha in the said suit was rejected primarily on the ground that for substituting Dharnidhar Prasad Sinha, the son of the original defendant nos. 1 & 2 a regular petition under Order 22 Rule 4 as also a separate petition under Order, 22 Rule 9(2) of the Code of Civil Procedure as well as an application under section 5 of the Indian Limitation Act is required to be filed. The name of Dharnidhar Prasad Sinha could not be substituted on merely filing the application dated 04.08.2003 without mentioning the provisions of law. 3. The respondent-Dharnidhar Prasad Sinha has appeared in person, however, has not filed any counter affidavit. 4. It is submitted on behalf of the petitioner that the aforesaid Title Suit No. 162 of 1981 was decreed ex-parte, and as such, the defendant no.1 of the suit namely, Most. Devki Devi, mother of the respondent-Dharnidhar Prasad Sinha filed an application for setting aside of that ex-parte decree under order 9 Rule 13 of the Code of Civil Procedure which was registered as Misc. Case No. 34 of 1990. During the pendency of the aforesaid miscellaneous case, Devki Devi died and in her place Dharnidhar Prasad Sinha was brought on the record being the legal representative of his mother. The aforesaid miscellaneous case upon contest was allowed, setting aside the ex-pare decree. After the suit was restored several petitions were filed by Dharnidhar Prasad Sinha objecting the maintainability of the suit as also that since he has not been brought on the record of the Title Suit by filing a regular application for substituting, the suit abated. The said objections were rejected by the Court below which was assailed by Dharnidhar Prasad Sinha by filing civil revision application in this Court vide orders contained in Annexures-6, 8, 9, 10, 12 & 13 of the writ application. 5. The said objections were rejected by the Court below which was assailed by Dharnidhar Prasad Sinha by filing civil revision application in this Court vide orders contained in Annexures-6, 8, 9, 10, 12 & 13 of the writ application. 5. Learned counsel for the petitioner submits that since Dharnidhar Prasad Sinha was substituted in the aforesaid proceeding for setting aside the ex-parte decree i.e. Misc. Case No. 34 of 1990, and as such, after the ex-parte decree was set aside a formal application for substituting Dharnidhar Prasad Sinha in the suit was sufficient, accordingly petitioner filed an application dated 04.08.2003. A rejoinder to the said application was filed by Dharnidhar Prasad Sinha on 16.09.2003. It is further submitted that for bringing on record the name of Dharnidhar Prasad Sinha in the suit being the legal representative of the deceased defendant that the application dated 04.08.2003 was sufficient in law. Learned counsel relies upon the decisions of this Court in the case of Syed Balal Ahsan Vs. Wastana Rubi Reported in 1979 B. L.J., 538 as also the decision in the case of Suraj Mandar and others Vs. Dev Mishra and others, reported in A.I.R. 1984, Patna, 378. It is accordingly submitted that the order dated 18.08.2007 deserves to be quashed and the petition dated 04.08.2003 filed on behalf of the plaintiff be allowed directing for substituting the name of respondent-Dharnidhar Prasad Sinha being the legal representative of the deceased defendant. 6. Mr. Dharnidhar Prasad Sinha appearing in person submits that on account of his name being brought on the records of Miscellaneous Case no. 34 of 1990 filed by his mother under Order 9 Rule 13 of the Code of civil Procedure shall not absolve the petitioner from substituting the legal representative of the deceased defendant by filing a regular applications under Order 22 Rule 4 and under order 22 Rule 9A of the Code of Civil Procedure, as also a petition for condoning the delay in filing those petitions and in absence of such steps being taken by the petitioner the suit abates. It is further submitted that in this case admittedly no such application was filed, and as such, Court rejected the petition dated 04.08.2003 however with liberty that, if so advised, the plaintiff-petitioner may file application under Order 22 Rule 4 as aforesaid for substituting the name of Dharnidhar Prasad Sinha being the legal representative of the deceased defendant. Mr. Sinha further submits that the order under challenge is absolutely correct and it calls for no interference for the simple reason that in light of the petition dated 04.08.2003 although the same cannot said to be a petition he filed a petition in opposition of the said petition which was virtually a letter which should not have been taken as a petition and in the said petition, he had specifically stated that unless and until a proper petition on behalf of the plaintiff is filed he could not be brought on the record of the title suit being the legal representative of his mother. In other words, it is submitted that the so called petition dated 04.08.2003 filed by the plaintiff at best could be only for perusal of the submissions made therein and not for substituting. It is further submitted that in the said rejoinder dated 16.09.2003 filed by Dharnidhar Prasad Sinha, it was also categorically stated that in the facts and circumstances the plaintiff be asked to file a proper petition with provision of law so that appropriate reply could be given by him. 7. Considering the submissions of the petitioner as also the respondent-Dharnidhar Prasad Sinha, it would appear that the facts are not in dispute that the aforesaid title suit was decreed ex-parte later on set aside on a petition under Order 9 Rule 13 filed by the mother of the respondent-Dharnidhar Prasad Sinha. In the said miscellaneous proceeding the applicant i.e. mother of Dharnidhar Prasad Sinha died and in her place he was substituted. After the ex-parte decree was set aside, the plaintiff filed the aforesaid petition dated 04.08.2003, as contained in Annexure-1 to the supplementary affidavit for substituting Dharnidhar Prasad Sinha on the record since his name was already substituted in the said Misc. Case No. 34 of 1990 which was contested by him. After the ex-parte decree was set aside, the plaintiff filed the aforesaid petition dated 04.08.2003, as contained in Annexure-1 to the supplementary affidavit for substituting Dharnidhar Prasad Sinha on the record since his name was already substituted in the said Misc. Case No. 34 of 1990 which was contested by him. The question whether his name could be substituted in the suit on a petition dated 04.08.2003 filed by the plaintiff-petitioner or he was required to file a regular petition under Order 22 Rule 4 of the Code of Civil Procedure as also petition under Order 22 Rule 9(2) of the Code of Civil Procedure supported by an application under section 5 of the Indian Limitation Act. In this regard the aforementioned decisions of this Court relied upon by the petitioners was considered and it has been held to the effect that in case, a party is brought on the record in a proceeding under Order 9 Rule 13 of the Code of Civil Procedure and after the ex-parte decree is set aside an application under Order 9 Rule 9 for restoration of suit is allowed, a formal petition in the suit, is sufficient in law for substituting the legal representatives of the deceased in suit. Moreover on the date of death the suit was pending, as such, there could be no occasion for abatement of suit in question. In the case in hand the position is similar. The aforesaid decisions support the case of the petitioners. Therefore, in my opinion, the petition dated 04.08.2003 filed on behalf of the petitioners for substituting the name of Dharnidhar Prasad Sinha in place of the deceased defendant ought to have been allowed. 8. In the result, the order dated 18.08.2007 passed by the Civil Judge, Senior Division, 8th Vaishali at Hajipur in Title Suit No. 162 of 1981 is hereby quashed and the name of the respondent-Dharnidhar Prasad Sinha is directed to be substituted in the aforesaid Title Suit No. 162 of 1981. 9. The writ application accordingly stands allowed with the above observations/directions.