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2012 DIGILAW 824 (CAL)

Lalit Kumar Khettry v. Haimanti Deb Roy

2012-09-03

SOUMEN SEN

body2012
JUDGMENT Soumen Sen, J. 1. The order allowing substitution is a subject-matter of challenge in this revisional application. 2. The original plaintiff instituted a suit for eviction. The plaintiff expired after the conclusion of his evidence on October 21, 2010. Within the period of limitation on 18th January, 2011, the application was filed for substitution under Order 22 Rule 3 by the heirs of the sole plaintiff. The said application was dismissed on 17th May, 2011 on the ground that the said application was not filed in proper form. While dismissing the said application, opportunity was given to the plaintiff to file a fresh petition for substitution and June 9, 2011 was fixed for fresh steps to be taken by the plaintiff. Consequent thereupon, another application was filed on June 9, 2011 for substitution along with an application for condonation of delay. The said application was allowed. 3. Mr. A.C. Kar, the learned Counsel appearing on behalf of the petitioner submits that on the date of filing of the said application, the suit has abated and without a formal prayer being made for setting aside of abatement, the Court has no jurisdiction to allow the application filed by the legal heirs for substitution. In this regard, Mr. Kar has relied upon the decisions reported in AIR 1964 SC 215 (Union of India Vs. Ram Charan & Ors.) and AIR 1983 SC 676 (Madan Naik Vs. Mst. Hansubala Devi). 4. In Union of India (supra), the issue was what would be the period of limitation for making an application for setting aside the abatement. It was held that the limitation for application to set aside abatement should start from the date of death and not from the date of appellant’s knowledge of death. The said application was filed by the appellant to bring legal representatives of the respondent on record. It was further held that there is a specific provision under Order 22 Rule 9 of the Code of Civil Procedure and recourse cannot be had to Section 151 of the Code of Civil Procedure. It was held that the Court cannot invoke its inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading legal representatives of the deceased respondent if the suit had abated on account of the appellant for not taking appropriate steps within time. 5. It was held that the Court cannot invoke its inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading legal representatives of the deceased respondent if the suit had abated on account of the appellant for not taking appropriate steps within time. 5. In Madan Naik (supra) it was held that no specific order is necessary for setting aside the abatement and the suit would automatically abate, if the substitution does not take place within the period of 90 days as required under Order 22 Rule 4 of the Code of Civil Procedure. 6. It is a duty of the opposite parties to have themselves substituted within the period of 90 days from the date of death of the sole plaintiff and in the event no such application is filed, the suit shall abate. No specific order for abatement of a proceeding under Order 1 or the other provisions of Order 22 is envisaged and the abatement takes place on its own force by passage of time. There is no doubt that if the substitution application is not moved within the time, the abatement takes place automatically. 7. An application to bring on record legal representative of the parties to a lis who died during the pendency of the suit (appeal) is 90 days and the time starts running from the date of death of the plaintiff or the defendant as the case may be. The limitation for an application to set aside an order of abatement of suit (appeal) is 60 days from the date of abatement. Abatement of a suit on account of failure to bring legal representatives of the deceased on record within the prescribed period of limitation is automatic. A specific order dismissing the suit as abated is not necessary. An application for setting aside abatement or dismissal of suit can be made under sub-rule 2 of Rule 9. Rule 9(2) requires application to be “made” and not “filed”. The word “made” gives an impression that such applications may be in writing or oral. Sub-rule 3 of Rule 9 expressly states that the provision of Section 5 of the Limitation Act, 1963 shall apply to applications made under sub-section 2 of Rule 9. Rule 9(2) requires application to be “made” and not “filed”. The word “made” gives an impression that such applications may be in writing or oral. Sub-rule 3 of Rule 9 expressly states that the provision of Section 5 of the Limitation Act, 1963 shall apply to applications made under sub-section 2 of Rule 9. Section 5 provides for extension of period of limitation if the applicant satisfies the Court that he had sufficient cause for not preferring an application within such period. 8. Mr. Dipak Shome, the learned Counsel appearing on behalf of the opposite party on the other hand submits that initial application was filed within time but due to certain technical defects, the said application was dismissed with a liberty to file a fresh petition for substitution. The matter was fixed on 9th June, 2011 for taking steps. This gave an impression to the opposite parties that such an application would be required to be filed on or before the said date and on the basis of such impression, the application was filed on 9th June, 2011 for substitution along with a prayer for condonation of delay. It is submitted that setting aside of abatement is dependent upon condonation of delay. It is the nature of the application that is required to be considered and not the form. In fact, the prayer for setting aside of abatement is implicit in the said application. In support of such contention Mr. Shome relied on a decision Mithailal Dalsangar Singh & Ors. v. Annabai Devram kini & Ors. reported in AIR 2003 SC 4244 whereof paragraphs 8 and 9 are reproduced hereinbelow:- “8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. 9. The Courts have to adopt a justice oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the Court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of ‘sufficient cause’ within the meaning of sub-rule (1) of Rule (9) of Order 22 and of Section 5 of the Indian Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.” 9. There cannot be any doubt that if the substitution application is not filed within time, the abatement takes place automatically and for which no specific order is required. When the application for substitution is allowed after condoning the delay, the abatement automatically perishes, as the abatement was automatic. In the same way, the order for setting aside that automatic abatement is implicit in the order for allowing the substitution application for condoning the delay. 10. When the application for substitution is allowed after condoning the delay, the abatement automatically perishes, as the abatement was automatic. In the same way, the order for setting aside that automatic abatement is implicit in the order for allowing the substitution application for condoning the delay. 10. In the instant case, the initial application was filed within the period of limitation which was dismissed on technical ground on 17th May, 2011, the second application was filed on 9th June, 2011 with a prayer for condonation of delay although it is true that in the second application, a prayer for setting aside of abatement has not been expressly made but going through the said application, it cannot be said that the prayer for setting aside of abatement was not implicit in the petition. Moreover, once the Court is satisfied that the delay is required to be condoned, the order of abatement is ordinarily to be allowed even if not expressly prayed for in the petition. 11. Since the Court is to adopt a “justice oriented approach” and having regard to the fact that the evidence of the plaintiff was concluded, although no prayer has been expressly made for setting aside the abatement of suit, in my view, the trial Judge did not act illegally or with material irregularity in allowing the second application for substitution after condoning the delay. 12. It cannot be said that the order of the Civil Judge suffers from any jurisdictional error or there is an error apparent on the face of it. ( AIR 1986 P&H 93 ; Lal Sing Vs. Gurnam Singh & Ors.) 13. In view of the aforesaid, the revisional application is dismissed. However, there shall be no order as to costs.