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2012 DIGILAW 743 (PAT)

Shambhu Kumar Singh v. Dharmsheela Devi

2012-05-08

CHAKRADHARI SHARAN SINGH

body2012
ORDER 1. I think it proper to quote the first paragraph of this application at the very beginning in view of the background of the case and which discloses purpose for which present application under Article 227 of the Constitution of India is said to have been filed:- “That this is a writ application for issuance of a writ in the nature of writ of certiorari for setting aside the order dated 16.7.2009 and order dated 12.1.2012 (Annexure-3) passed by Sub-Judge Ist, Vaishali at Hajipur in Title Suit No. 127 of 1998, whereby and whereunder substitution application dated 8.8.2008 and against abetment (sic) of defendant no.3 application dated 26.9.2011 has been rejected without appreciating the facts and circumstances of the case.” 2. The order dated 16.7.2009 passed in Title Suit No. 127 of 1998 has been annexed as Annexure-3 to the application which has been passed by the learned Civil Judge, Ist, Vaishali at Hajipur on an application filed on behalf of the petitioner on 4.8.2008 under Order XXII Rule 4(4). The said application is contained in Annexure-1 to this application. 3. From the pleadings as contained in the petition in hand, it appears that the present petitioner and his other brothers, namely, Prabhu Narain Singh and Indra Bhushan Singh filed a Title Suit No. 127 of 1998 for declaration of title and possession over old Khesra No. 487, new Khesra No. 382, Khata No. 19 admeasuring 26 decimals of land. 4. According to the petitioner, the land in question was purchased by their ancestors Nunu Singh in an auction sale in a Rent suit No. 367 of 1918 which was instituted by the land owner. It has been pleaded that an Execution Case No. 540 of 1920 was filed and in that preceding the said land bearing Khata No. 19 as measuring area 1.52 decimals was sold which was purchased by ancestors of the writ petitioner as well as the respondents. 5. It has been asserted that the entire land was subsequently distributed between all co-sharers but late Bimal Prasad Singh in collusion with survey employee recorded his name over 26 decimals of land from southern side of plot No. 19. It has also been submitted that the plaintiffs are coming peaceful possession over the land since long. 5. It has been asserted that the entire land was subsequently distributed between all co-sharers but late Bimal Prasad Singh in collusion with survey employee recorded his name over 26 decimals of land from southern side of plot No. 19. It has also been submitted that the plaintiffs are coming peaceful possession over the land since long. From the cause title of the present petition, it appears that heirs of Bimal Prasad Singh have been impleaded as Respondent Nos. 1 to 5. 6. From the record of the present application it appears that on 6.12.2007 the defendant no.3 Raj Narain Singh died. On 19.12.2007 defendant no.1 appeared before the Court below through Vaklatnama informing the Court that defendant no.3 had died. It seems that though it was within the knowledge of the plaintiffs at least on 19.12.2007 that defendant no.3 was dead. No steps for substitution of the legal heirs were taken. It would be apt to add that plaintiffs and the deceased defendant are residents of the same village. 7. After lapse of nearly eight months, on 4.8.2008 a petition was filed under Order XXII Rule 4 (4) of the Code of Civil Procedure, 1908 specifically praying for deleting the name of deceased- defendant no.3 from the cause title on the ground that neither he had entered appearance in the said suit before the Court below nor had filed his written statement. On 4.8.2008 itself an application for condoning the delay in filing the said application under Order XXII Rule 4(4) of the Code of Civil Procedure was filed. These two applications dated 4.8.2008 have been brought on record through Annexure-1. It may be noted here that no prayer was made for substituting the legal heirs of deceased-defendant no.3 in his place. There was also no prayer to set aside the abatement which had resulted by operation of order XXII Rule 4(3) of the Code of Civil Procedure. 8. Learned Court below by order dated 16.7.2009 (Annexure-3) dismissed the said petition dated 4.8.2008 (though mentioned in the order-sheet as 8.8.2008) mainly on two grounds; firstly that there was absolutely no explanation for condoning the delay in filing the application after the death of the deceased-defendant no.3 and secondly there was no application for setting aside the order of abatement. Learned Court below by order dated 16.7.2009 (Annexure-3) dismissed the said petition dated 4.8.2008 (though mentioned in the order-sheet as 8.8.2008) mainly on two grounds; firstly that there was absolutely no explanation for condoning the delay in filing the application after the death of the deceased-defendant no.3 and secondly there was no application for setting aside the order of abatement. The order dated 16.7.2009 was not challenged nor any further step was taken either for setting aside the abatement or for substitution of the legal representatives of the deceased-defendant no.3. It transpires from the pleadings and the documents brought on record along with the petition in hand, that on 26.9.2011 two applications were filed on behalf of the plaintiffs; one for setting aside the abatement and another for substitution of legal representatives in place of defendant no.1 who died on 28.7.2011. In the said petition, they also prayed for substitution of legal representative of the deceased-defendant no.3 which was earlier rejected by the Court below, by above mentioned order dated 16.7.2009. Learned Court below by order dated 12.1.2012 allowed the application filed on behalf of the plaintiffs for substitution of the legal representative of the deceased-defendant no.1 late Bimal Prasad Singh but rejected the prayer to the extent it related to setting aside the abatement as against defendant no.3 and for substitution of legal representative in place of deceased defendant no.3. 9. It is in this background that two orders dated 16.7.2009 and 12.1.2012 passed by the learned Court below in Title Suit No. 127 of 1998 are under challenge in the present application. 10. Learned counsel for the petitioner Mr. Awadhesh Kumar Singh, has submitted that there was no deliberate latches committed on the part of the plaintiffs/petitioner and it was because of wrong advice that the explanation was not given in the limitation petition as regards the time when he got information about the death of Raj Narain Singh defendant no.3. 11. Order XXII Rule 4 of the Code of Civil Procedure, 1908 prescribes the Procedure in case of death of one of several defendants or of sole defendant. Sub Rule (1) of Rule 4 mandates that the Court on an application filed in that behalf, to cause the legal representative of the deceased-defendant to be made a party to the suit. Order XXII Rule 4 of the Code of Civil Procedure, 1908 prescribes the Procedure in case of death of one of several defendants or of sole defendant. Sub Rule (1) of Rule 4 mandates that the Court on an application filed in that behalf, to cause the legal representative of the deceased-defendant to be made a party to the suit. Sub Rule (3) however, provides that if no application is made under Sub-Rule (1), within the time limited by law; the suit shall abate as against the deceased-defendant. 12. Per Article 120 of the Schedule to the Limitation Act, 1963, period of limitation for filing application under the Code of Civil Procedure, 1908 to have the legal representative of a deceased defendant made a party has been described as ninety days from the date of death of such defendants. By operation of Sub-Rule (3) of Order XXII (4), the suit thus abated after expiry of ninety days as against defendant no.3 who died on 6.12.2007. There was no need to pass any order to this effect. 13. The plaintiffs, it appears, took recourse to Sub-Rule 4 of Order XXII Rule 4 instead of making a prayer for setting aside the order of abatement and for substitution of the legal representative in place of deceased-defendant no.3 by filing application under Order XXII Rule 4(4). 14. It is totally misconceived on the part of the petitioner to submit in the present application that a prayer was made for substitution of the heirs of defendant no.3. The application dated 4.8.2008 was specifically for deletion of defendant no.3 from the cause title on the ground that neither he entered appearance through Vaklatnama nor filed written statement. 15. In the present application under Article 227 of the Constitution of India a plea has been taken on behalf of the petitioner as regards lack of knowledge of the death of deceased-defendant no.3 in order to explain the delay. The petitioner cannot dispute that the date of death of defendant no.3 was communicated to the Court below in Title Suit No. 127 of 1998 on 19.12.2007 itself and there was absolutely no explanation as to what prevented the writ petitioner from filing an application for setting aside the abatement within the time limit prescribed by law. The petitioner cannot dispute that the date of death of defendant no.3 was communicated to the Court below in Title Suit No. 127 of 1998 on 19.12.2007 itself and there was absolutely no explanation as to what prevented the writ petitioner from filing an application for setting aside the abatement within the time limit prescribed by law. Sub Rule (5) of Order XXII (4) of the CPC prescribes that if the plaintiff was ignorant of the death of the defendant, and could, for that reason, not make an application for substitution of legal representative of the defendant under Rule 4 within the period specified in the Limitation Act and the suit has, in consequence, abated and further, if the plaintiff applies after the expiry of the period specified therefore; for setting aside the abatement on the ground that he by reason of such ignorance, had sufficient cause for not making the application within the period specified in the Limitation Act, the Court shall, while considering such application under Section 5 of the Limitation Act, have due regard to the fact of such ignorance, if proved. 16. The petition filed on behalf of the plaintiff for condonation of delay is at page 15 of the present petition which is for condoning the delay in filing application under Sub Rule 4 of Order XXII (4) of the Code of Civil Procedure. Firstly Sub Rule 4 of Order XXII (4) of the Code of Civil Procedure does not contemplate any period of limitation. The period of limitation is prescribed for substitution of legal representative under Sub Rule 1 read with Sub-Rule 3 of Order XXII (4). Sub-Rule 5 of Order XXII (4) provides that the Court shall have due regard, to the fact if the plaintiff was ignorant of the death of the defendant and that was the reason for not making any application for substitution of the legal representative, if such ignorance is proved. 17. In the facts and circumstances of the present case, I do not find any infirmity in the background of the fact and the legal provisions mentioned above in the order dated 16.7.2009 which had attained finality. I also do not find any infirmity in the impugned order dated 12.1.2012 passed by the learned Court below, rejecting the application dated 26.9.2011 for substitution of the legal representative of deceased defendant no.3 who died on 6.12.2007. I also do not find any infirmity in the impugned order dated 12.1.2012 passed by the learned Court below, rejecting the application dated 26.9.2011 for substitution of the legal representative of deceased defendant no.3 who died on 6.12.2007. I have noted that on 26.9. 2011 an application for setting aside the abatement was filed which is Annexure-2 to the writ application. I have gone through the said application and the said application does not contain any valid explanation for delay in filing of the said application. The same has been rightly rejected by the learned Court below by impugned order dated 12.1.2012. 18. Even otherwise, in the facts and circumstances of the case, I do not find any merit in this application as no ground has been made out for exercise of power under Article 227 of the Constitution of India. 19. This application is accordingly, dismissed.