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2013 DIGILAW 581 (PAT)

Ram Kailash Bhagat v. Md. Hussain

2013-05-02

JYOTI SARAN

body2013
ORDER 1. Heard Mr. Chandra Kant, learned counsel appearing on behalf of the petitioner and Mr. Uma Shankar Prasad, learned senior counsel appearing for the opposite parties. Re: I.A. No.3131 of 2013: 2. This interlocutory application has been filed praying for amending the words ‘defendant no.4’ to read as ‘defendant no.3’. It is the submission of the petitioner that although the statements made in civil revision application is in relation to defendant no.3 who has deceased and whose non-substitution was the subject matter of the orders impugned but due to inadvertence and oversight a typographical error has occurred in the main application where instead of defendant no.3 the applications records defendant no.4. A prayer has thus been made that the words ‘defendant no.4’, Skh. Maula Mian as occurring in the application may be modifed to read as ‘defendant no.3’ Md. Sadique Mian. 3. I have perused the records and find that the amendment is formal in nature. Let the words ‘defendant no.4, Skh. Maula Mian’ as occurring in this civil revision application be modified to read as ‘defendant no.3, Sadique Mian’. 4. I.A. No.3131 of 2013 accordingly stands allowed. Re: C.R. No.601 of 2009: 5. This civil revision application is directed against the order dated 24.1.2009 passed by the learned Additional District & Sessions Judge (F.T.C.-V), Siwan in Misc. Appeal No.48 of 1985/10 of 2004 filed under Order 43 rule 1(k) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’), whereby the appellate court while dismissing the appeal has affirmed the order dated 30.8.1985 passed by the learned Additional Munsif-V, Siwan in Title Suit No.275 of 1978 holding the suit to have abated under Order 22 rule 9 of the Code, inter-alia, on grounds of non-substitution of defendant no.3, Sadique Mian. 6. The suit in question has been filed by the plaintiff who is the petitioner before this Court for declaration of his title, confirmation of possession and injunction against the defendants. The plaintiff relies upon a deed of gift dated 7.6.1978 to seek such declaration and on that basis has questioned the door which opens in the gifted land. The suit thus was filed for the said relief. While the suit was pending, the defendant no.3 Sadique Mian died on 24.3.1980. The plaintiff relies upon a deed of gift dated 7.6.1978 to seek such declaration and on that basis has questioned the door which opens in the gifted land. The suit thus was filed for the said relief. While the suit was pending, the defendant no.3 Sadique Mian died on 24.3.1980. It is the case of the plaintiff that he is employed in the Nadiya Jute Mill situated in the State of West Bengal and thus had no information regarding the death of defendant no.3 nor any such information was supplied by his authorized Pairvikar Maheshwar Prasad Singh nor any information was brought on record by the defendants in terms of the provisions of Order 22 rule 10A of the Code. It is further the case of the plaintiff that no sooner the plaintiff derived such information, he filed substitution on 21.9.1983. The defendants at this stage filed a rejoinder contesting the date of death by submitting that the defendant no.3 had died on 24.3.1980. No order was passed on the substitution so filed by the plaintiff or on the rejoinder of the defendants and the matter remained pending. It is the case of the plaintiff that when he received information that the matter was not being properly pursued by his Pairvikar and that the date of death given in his earlier application was not correct, he filed a composite substitution application under Order 22 rule 4 of the Code after making corrections in the date of death and which application was filed on 5.6.1985 along with a separate application, for setting aside the abatement as also an application under section 5 of the Limitation Act for condonation of delay. The said applications were rejected by the learned trial court on grounds of absence of sufficient cause in the application filed by the plaintiff justifying the delay. The learned trial court vide order dated 30.8.1995 while rejecting the applications filed by the plaintiff held the suit itself to have abated as a consequence of non-substitution of defendant no.3. The plaintiff filed a statutory appeal under Order 43 rule 1(k) of the Code giving rise to Misc. Appeal No.48 of 1985/10 of 2004 and which has also been rejected by order dated 24.1.2009 and hence this civil revision application. 7. I have heard Mr. Chandra Kant, learned counsel appearing on behalf of the plaintiff-petitioner and Mr. The plaintiff filed a statutory appeal under Order 43 rule 1(k) of the Code giving rise to Misc. Appeal No.48 of 1985/10 of 2004 and which has also been rejected by order dated 24.1.2009 and hence this civil revision application. 7. I have heard Mr. Chandra Kant, learned counsel appearing on behalf of the plaintiff-petitioner and Mr. Uma Shankar Prasad, learned senior counsel appearing for the opposite parties. Although Mr. Prasad has sought to question the maintainability of the civil revision but considering the circumstances that no further remedy lies as against the order passed in miscellaneous appeal, this civil revision application is held maintainable. 8. Mr. Chandra Kant, learned counsel for the petitioner has submitted that whereas there was no laches on the part of the plaintiff in pursuing the matter except that since he was stationed at Jagdal in the State West Bengal, he had no information regarding the death of defendant no.3 and no sooner the plaintiff gathered information, he took appropriate steps for his substitution as also for setting aside the abatement, if any, along with an application for condonation of delay but the learned trial court has rejected the applications simply on grounds of absence of sufficient cause. He submits that the order of the appellate court besides not being sustainable on this account, also suffers from gross errors apparent on the face of record and in support of his submission learned has referred to the observation of the appellate court found at paragraph 9 at page 12 of the order in which the appellate court has observed that no prompt steps was taken by the plaintiff to file a petition for substitution, for condonation of delay and to set aside an abatement when the fact is otherwise and these applications had been filed by the plaintiff on 5.6.1985 and are part of the records. He thus submits that where no deliberate laches can be attributed to the plaintiff in pursuing the matter, the order impugned rejecting the submissions of the plaintiff is founded on hyper technicality and cannot be sustained. 9. The arguments of Mr. Chandra Kant has been contested by Mr. Prasad and who while supporting the order impugned has submitted that it has taken not less than three years for the plaintiff to file a substitution application and not less than five years for setting aside the abatement. 9. The arguments of Mr. Chandra Kant has been contested by Mr. Prasad and who while supporting the order impugned has submitted that it has taken not less than three years for the plaintiff to file a substitution application and not less than five years for setting aside the abatement. He submits that as the plaintiff had failed to lead supportive evidence in relation to the delay which had occasioned in filing of the applications in question, the courts below had no other option but to reject the same. 10. I have heard learned counsel for the parties and have perused the materials on record. There is absolutely no doubt that there has been a delay on the part of the plaintiff in seeking a substitution as well as in making the prayer for setting aside the abatement. The question is whether the delay is such so as to shut the doors for the plaintiff by allowing the abatement of the suit as a whole. Another issue is that whether the plaintiff at all has been found wanting on this score or has taken steps for substitution. There is no contest on the claim of the petitioner of being stationed at Jagdal in the State of West Bengal and his absence from Siwan. It is also again not in dispute that no information was supplied by the defendants as mandated under order 22 rule 10A of the Code for bringing on record the information of the death of defendant no.3. On the basis of information received, the plaintiff had filed a substitution application on 21.9.1983 and which was duly replied by the defendants on 9.3.1984 by objecting to the date of death given in the substitution application. It is again not in dispute that the application remained pending and before it could be rejected three applications were filed by the plaintiff, namely: (a) for substitution of defendant no.3 under Order 22 rule 4 of the Code; (b) for setting aside the abatement under Order 22 rule 9(2) of the Code; and (c) an application under Order 22 rule 9(3) of the Code, read with section 5 of the Limitation Act for condonation of delay. Thus even before any order could have been passed on his earlier applications the lacuna whatsoever that has occasioned in filing of the substitution stood removed by the plaintiff. Thus even before any order could have been passed on his earlier applications the lacuna whatsoever that has occasioned in filing of the substitution stood removed by the plaintiff. The sequence of events leaves no room to doubt that the plaintiff was vigilant and was pursuing his remedy albeit with some delay. The delay is not so fatal so as to deprive the remedy itself to the plaintiff. Reference in this regard is made to the judgment of the Supreme Court reported in (1998)7 SCC 123 (N. Balakrishnan v. M. Krishnamurthy), more particularly paragraph 13 which is reproduced hereinbelow: “13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.” 11. Another relevant aspect of the matter is that considering the nature of the suit, even if for the sake of assumption it is presumed that the defendant no.3 had not been substituted then at best the suit could have abated as against defendant no.3 alone and not as a whole. There was no such relief prayed for by the plaintiff which was so indivisible that the right to sue did not survive. 12. For the reasons aforesaid, the order impugned is set aside. The learned trial court shall proceed accordingly. 13. This civil revision application is allowed.