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2014 DIGILAW 628 (ORI)

Niranjan Behera v. Sudarsan Bandha

2014-09-25

RAGHUBIR DASH

body2014
Judgment R. DASH, J. This appeal is against order dated 6.01.2009 passed by learned Civil Judge (Senior Division), Bhadrak in Misc. Case No.101 of 1998 a proceeding under Order 9 Rule 13 C.P.C., arising out of O.S. No.327 of 1996 rejecting the appellant’s prayer for substitution. 2. The appellant herein is defendant No.17 in the suit and the petitioner in the proceeding under Order 9 Rule 13 C.P.C. The suit is for partition of the suit property and for permanent injunction with other consequential reliefs. The suit was fixed to 18.02.1998 for filing of written statement by the appellant. Since the appellant fell ill he could not file written statement on the date fixed. Though a petition for time was filed on his behalf it was rejected and he was set exparte. Taking advantage of the appellants’ absence in the suit, it is alleged, the plaintiff and defendant Nos.1 and 2, in collusion with defendant Nos.11(ka), 19, and 20, entered into a compromise to the prejudice of the appellants’ interest and got the suit disposed of in a Lok Adalat held on 22.03.1998 in terms of their compromise. On 9.4.1998 the appellant filed petition under Order 9 Rule 13 C.P.C. to set-aside the exparte decree passed against him. During pendency of his petition under Order 9 Rule 13 C.P.C. defendant-opposite party No.20 Suka Bewa died on 25.11.2005. On 24.09.2008 the appellant filed an application for substitution of legal heirs of the deceased defendant along with one application under Section 5 of the Limitation Act to condone the delay. Learned trial Court rejected the prayer for substitution vide the impugned order solely on the ground that no application for setting aside abatement was filed. 3. Impugned order is challenged on the ground that since the appellant had filed the application for substitution stating therein the cause of delay. Learned lower Court ought to have set-aside the abatement even though no separate petition for setting aside abatement was filed. 4. Learned counsel for the contesting respondents has argued supporting the impugned order whereas the learned counsel for the appellant has reiterated the ground taken in the Appeal memo. 5. Learned lower Court ought to have set-aside the abatement even though no separate petition for setting aside abatement was filed. 4. Learned counsel for the contesting respondents has argued supporting the impugned order whereas the learned counsel for the appellant has reiterated the ground taken in the Appeal memo. 5. Learned trial Court before rejecting the prayer for substitution has observed that no separate petition has been filed for setting aside the abatement and that limitation starts from date of death of a party and not from the date of knowledge of the petitioner seeking substitution. Thereafter, the learned trial Court has proceeded to hold that the petition for substitution is devoid of merit and, therefore, stands rejected. 6. It is well settled that an application to bring on record the legal representatives of a deceased party is governed by the provisions of Article 120 of the Act. An application for substitution should be filed within 90 days from the date of death of the deceased party. If no such petition is filed within 90 days of death of the deceased party abatement sets in. An application to set-aside such abatement is governed by Article 121 of the Limitation Act which prescribes a period of 60 days starting to run from the date of abatement. If no application for substitution is made within 150 days of death of the deceased party, then the party seeking for substitution has to make a prayer for condonation of the delay, besides making a prayer for setting aside abatement. Therefore, if a petition for substitution is not filed within 150 days of the death of the deceased party ordinarily three applications are filed: one for substitution, another for setting aside abatement and one more for condonation of delay. In the case on hand, it appears from the impugned order that the appellant had made one application for substitution with a separate petition under Section 5 of the Limitation Act to condone the delay. He did not file a separate petition for setting aside abatement and, only on that ground the prayer for substitution has been rejected. 7. In K. Rudrapaa V. Shivappa; AIR 2004 SC 4346 the facts situation was like this: The appellant’s father had made an application for grant of land which the learned Tahasildar rejected and against that rejection order appeal was preferred in the Court of District Judge, Shimoga. 7. In K. Rudrapaa V. Shivappa; AIR 2004 SC 4346 the facts situation was like this: The appellant’s father had made an application for grant of land which the learned Tahasildar rejected and against that rejection order appeal was preferred in the Court of District Judge, Shimoga. During pendency of the appeal, appellant’s father expired on 13.6.1994. The appellant was not aware about the pendency of the appeal in the Court of the District Judge. Knowing about its pendency at a belated stage, the appellant filed an application on 20.12.1994 under Order 22 Rule 3 read with Section 151 of the C.P.C. The learned District Judge rejected the application holding that the application for substitution was timed barred and no prayer for setting aside abatement had been made, nor any application for condonation of delay was filed. Therefore, the appellant again made applications in 1996 for setting aside the abatement, condonation of delay and bringing the appellant and other legal heirs of deceased father on record but the learned District Judge rejected the prayers. Being aggrieved, the appellant moved the High Court in civil revision which was refused to be admitted. While setting aside the order passed by the District Judge and confirmed by the High Court their Lordships have observed that a hyper-technical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay, more so when later on separate application were made for setting aside abatement and condonation of delay. Their Lordships have further observed that such technical objection should not come in doing full and complete justice between parties. 8. Taking a cue from the observation made by the Hon’ble Apex Court this Court is of the considered view that the learned Trial Court instead of rejecting the prayer for substitution in a technical manner ought to have given chance to the appellant to file a separate petition for setting aside abatement and, thereafter, proceeded to dispose of the matter on merit. 9. In view of the discussion made above, the appeal is allowed. Parties to bear their own cost. The impugned order is set aside. 9. In view of the discussion made above, the appeal is allowed. Parties to bear their own cost. The impugned order is set aside. Learned Civil Judge (Senior Division), Bhadrak shall take up the prayer for substitution afresh giving an opportunity to the appellant to make an application for setting aside abatement.