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2012 DIGILAW 133 (MP)

Rehana Bee Wd/o Salloo Khan v. Babu Khan S/o Imam Khan Deceased

2012-01-31

N.K.MODY

body2012
Judgment Heard on admission. Being aggrieved by the order dated 24-6-2009 passed by 1st Additional District Judge, Khargone in MA No. 17/2007 of 2011, whereby the appeal was dismissed, present petition has been filed. 2. Short facts of the case are that Habib Khan, Limbe Khan and Kale Khan filed a suit for declaration, partition and possession against other respondents. Somewhere in the year 1992, during pendency of the suit Habib Khan died on 3-2-2000 and an application was filed under Order 22, Rule 3, Civil Procedure Code for bringing legal representatives of deceased Habib Khan, on record who are petitioners No. 6 (a) to (i) were brought on record. On 7-7-1999 i.e. prior to filing of the application for bringing legal representatives of petitioner No. 6 Habib Khan on record, another plaintiff Kale Khan also died and the application was filed on 14-2-2000 for bringing his legal representatives on record. Since the application was not filed in time, therefore, another application was filed for condonation of delay on 25-7-2000. The application was also filed for setting aside abatement. These applications were allowed and the legal representatives of the petitioner No. 7 Kale Khan who are petitioner No. 7(a) to (d) were brought on record vide order dated 27-7-2001. Thereafter, Limbe Khan petitioner No. 12 also died on 25-1-2003. On 14-5-2004 an application was filed by the petitioner No. 12 (a) to (k) for bringing them on record in place of deceased Limbe Khan. This application was dismissed on 30-1-2005 against which an appeal was filed which was numbered as MA No. 17/2007. In this appeal legal representatives of the petitioner No. 12 Limbe Khan also moved an application under Order 22, Rule 9, Civil Procedure Code and another application under section 5 of the Limitation Act for condonation of delay and setting aside abatement. This appeal was dismissed vide order dated 28-9-2007 against which writ petition was filed before this Court which was numbered W. P. No. 5812/2009 and was allowed on 30-3-2009 and the order dated 28-2-2007 passed in Miscellaneous appeal was set aside and the case was remanded back with a direction to the learned Appellate Court to take into consideration the application filed by the legal representatives of Limbe Khan who is petitioner No. 12 for condonation of delay and setting aside abatement. 3. 3. During pendency of the appeal, after remand on 20-4-2009 the applications were filed for bringing legal representatives of deceased Salu Khan who is petitioner No. 5 along with applications under Order 22, Rule 9, Civil Procedure Code for setting aside abatement and under section 5 of the Limitation Act for condonation of delay. All these applications were contested by respondents and after hearing the parties vide order dated 24-6-2009 the appeal was dismissed against which present petition has been filed. 4. Learned counsel for the petitioners argued at length and submits that the impugned order passed by the Court below is illegal, incorrect and deserves to be set aside. It is submitted that right from beginning there were three plaintiffs namely Habib Khan, Kale Khan and Limbe Khan and each of them are having their right in the suit property. Learned counsel placed reliance on a decision in the matter of Mohd. Hussain (Dead) by LRs. vs. Occhavlal, 2008 AIR SCW1513 wherein one of the respondents died and the judgment was delivered thereafter, Hon'ble Apex Court observed that some of heirs and legal representatives of deceased were already on record, therefore, setting aside entire judgment for not bringing entire body of heirs and legal representatives of deceased on record would be too technical. Further reliance is placed on a decision in the matter of K. Rudrappa vs. Shivappa, 2004 AIR SCW 5106 wherein original applicant died during pendency of appeal and the petitioner who was the son was not aware of pendency of appeal and he only came to know the same when he received a communication from advocate engaged by his father, Hon'ble Apex Court observed that order rejecting application on ground that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay, liable to be set aside, such technical objections should not come in way of doing justice. Reliance is also placed on a decision in the matter of Smt. Gema Coutinho Rodrigues vs. Bricio Francisco Pereira, AIR 1994 SC 1199 Hon'ble Apex Court held that if one heir has been brought on record, substantially representing deceased plaintiff, suit does not abate and right to sue survives or vests in that one heir. Reliance is also placed on a decision in the matter of Smt. Gema Coutinho Rodrigues vs. Bricio Francisco Pereira, AIR 1994 SC 1199 Hon'ble Apex Court held that if one heir has been brought on record, substantially representing deceased plaintiff, suit does not abate and right to sue survives or vests in that one heir. On the strength of aforesaid position of law learned counsel submits that the petition filed by the petitioners be allowed and the impugned order passed by the learned Court below be set aside. 5. Learned counsel for respondent Nos. 2, 3 and 6 submits that no illegality has been committed by the learned Court below in dismissing the application and the appeal filed by the petitioners, as no proper applications were filed by the petitioners in time. For this contention reliance is placed on a decision in the matter of State of M. P. vs. Ismile, 1988 MPLJ 587 wherein one of two plaintiffs who were brothers and had undivided share in suit property dying two years prior to hearing but legal representatives not brought on record, this Court held that the appeal held to have abated. It is submitted that in the facts and circumstances of the case, petition filed by the petitioners be dismissed. In alternate learned counsel submits that the petition be allowed and after setting aside the judgment passed by the learned Appellate Court the case be sent back for deciding the matter afresh. 6. Order XXII, Rule 3, Civil Procedure Code reads as under :- 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. - (1) Whether 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. 7. From perusal of the record it is evident that initially the suit was filed by Habib Khan, Kale Khan and Limbe Khan. Legal representatives of deceased Habib Khan are petitioner Nos. 6(A) to (I), legal representatives of deceased Kale Khan are petitioner Nos. 7(A) to (D) and legal representatives of deceased Limbe Khan are petitioner Nos. 12(A) to (K). Each of the deceased was having rights in the property. In the circumstances even if the application was not filed in time and later on the same was filed, then on technical ground the application filed by the petitioners ought not to have been dismissed. 8. In the facts and circumstances of the case petition filed by the petitioners is allowed and the impugned order passed by the learned Court below is set aside and the applications filed by the petitioners for bringing legal representatives of the deceased on record are allowed. The delay in filing the application is also allowed. Abatement is set aside with a direction to the learned trial Court to permit the petitioners to correct the record by making necessary amendment and to decide the suit on merits. Parties are directed to remain present before the learned trial Court on 5-3-2012. 9. With the aforesaid observations, petition stands disposed of. No order as to costs. Order accordingly.