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2015 DIGILAW 1103 (JHR)

Prayag Mandal v. Gokul Chandra Mandal

2015-09-15

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 15.05.2014 in Title Suit No. 124 of 2012 whereby, application under Order XXII Rule 4 CPC r/w Order 1 Rule 10 CPC has been dismissed, the present writ petition has been filed. 2. The petitioners are plaintiffs in Title Suit No. 124 of 2012. The suit was filed for a declaration of their title and confirmation of possession. The plaintiffs asserted that land under Khata No. 81 in Mouza Kolakusma was originally held and possessed by Daya Mandal, Pabi Mandal and Mati Mandal. The said raiyats executed giftdeed in the year, 1935 in favour of Khudu Mandal and put him in possession over the land under various khata numbers in Plot No. 3458. Khudu Mandal transferred 1.20 acres land in Plot No. 3458, about 33 decimals land in Plot No. 3387 and about 1.97 acres land in Plot No. 3387 under Khata No. 32 vide sale-deed dated 27.04.1940 in favour of Babulal Mandal and Aku Mandal. The plaintiffs are legal heirs and successors of Babulal Mandal and Aku Mandal and they are in peaceful possession of the lands comprised in sale-deed dated 27.04.1940. The defendant nos. 2, 3 and 4 or their legal heirs appeared in the suit and filed common written statement raising various pleas including, a plea of non-joinder of necessary parties. In the pending suit application dated 12.08.2013 was filed by the appearing defendants asserting that defendant nos. 1 & 5 had died before institution of the suit. Thereafter, application under Order XXII Rule 4 CPC for substitution of legal heirs of defendant nos. 1 & 5 was filed by the plaintiffs on 18.09.2013. The said application has been dismissed on the ground that in the said application the plaintiffs failed to add the legal heirs and successors of the defendant nos. 1 & 5. 3. The learned counsel for the petitioners submits that the plaintiffs became aware of the death of defendant nos. 1 & 5 after the defendants filed application dated 12.08.2013 seeking dismissal of the suit. The plaintiffs thereafter, promptly filed application dated 18.09.2013 and therefore, the plaintiffs were entitled to invoke provision under proviso to Section 21(1) of the Limitation Act, 1963. It is further submitted that since the legal heirs and successors of the defendant nos. 1 & 5 are necessary parties to the suit, application under Order XXII rule 4 CPC should have been allowed. It is further submitted that since the legal heirs and successors of the defendant nos. 1 & 5 are necessary parties to the suit, application under Order XXII rule 4 CPC should have been allowed. The learned counsel for the petitioners relies on decisions in “Rasetty Rajyalakshmamma and others Vs. Rajamuru Kannaiah” reported in AIR 1978 Andhra Pradesh 279 and in “Karuppaswamy and others Vs. C. Ramamurthy” reported in AIR 1993 SC 2324 and judgments of Madhya Pradesh High Court, Orissa High Court and Delhi High Court. 4. Per contra, the learned counsel for the respondents submits that there was gross laches on the part of the petitioners in filing application for substitution of legal heirs of defendant nos. 1 & 5. Though, the respondents took a specific plea in the written statement that the suit has been filed against dead persons, application seeking substitution of legal heirs was filed about one year thereafter. It is further submitted that even in application dated 18.09.2013, the plaintiffs failed to disclose the name of all the legal heirs and successors of the defendant nos. 1 & 5. 5. In so far as, contention based on proviso to Section 21(1) of the Limitation Act, 1963 is concerned, the same would necessarily depend on the facts pleaded by the plaintiffs in application dated 18.09.2013 seeking substitution of legal heirs of defendant nos. 1 & 5. In the said application the plaintiffs have taken a plea that they had no knowledge that the defendant nos. 1 & 5 had died earlier. Notice issued to the defendant nos. 1 & 5 returned unserved without endorsement and therefore, the plaintiffs took steps for service of notice through publication in the daily newspaper. The application seeking permission for substituted service was allowed on 12.08.2013 however, on the same day other defendants filed application dated 12.08.2013 seeking abatement of the suit on the ground of death of defendant nos. 1 & 5. In these facts, the plaintiffs took a plea that they came to know about the death of defendant nos. 1 & 5 on 12.08.2013. I find that in the written statement on behalf of Gokul Mandal, Bomkesh Mandal, Paritosh Mandal and Bama Pada Mandal filed on 27.11.2012, they took a specific plea of non-joinder of parties. The defendants pleaded that the defendant no. 1 & 5 on 12.08.2013. I find that in the written statement on behalf of Gokul Mandal, Bomkesh Mandal, Paritosh Mandal and Bama Pada Mandal filed on 27.11.2012, they took a specific plea of non-joinder of parties. The defendants pleaded that the defendant no. 1 namely, Krishna Pada Mandal had died leaving behind his widow namely, Smt. Triguna Mandlani and two sons namely, Dulal Mandal and Shankar Mandal. It was further asserted by the defendants that the defendant no. 5 namely, Shyama Pado Mandal died leaving behind his widow Smt. Ujjala Mandalain and son, Astik Mandal. Thus, the plea taken by the plaintiffs that only after application dated 12.08.2013 was filed by the defendants seeking a declaration for abatement of the suit on the ground that the defendant nos. 1 & 5 had died, they came to know about the death of defendant nos. 1 & 5, is a false plea taken by them. Obviously, the plaintiffs have not disclosed any other reason for delay in filing application dated 18.09.2013 seeking substitution of legal heirs and successors of the defendant nos. 1 & 5. Sub-rule 3 to Order XXII Rule 4 CPC provides that if no application within the time limited by the law is made for substitution of the deceased-defendants, the suit shall abate against the deceased-defendants. Article 120 of the Limitation Act, 1963 provides 90 days' period for filing application for substitution of the deceased-defendant. Article 121 provides that application for an order to set-aside abatement shall be filed within 60 days from the date of abatement. It is not in dispute that along with application dated 18.09.2013, under Order XXII Rule 4 r/w Order 1 Rule 10 CPC, neither an application seeking condonation of delay nor an application for an order for setting-aside abatement was filed. I am of the opinion that even if the suit with respect to defendant nos. 1 & 5 was not void at the time of institution of the suit, application for an order for setting-aside abatement with respect to defendant nos. 1 & 5 was required to have been filed by the plaintiffs. I further find that the plaintiffs have averred that cause of action for filing the present suit arose on 15.02.2012 and on subsequent dates. With reference to cause of action on 15.02.2012, in paragraph no. 10 of the plaint, the plaintiffs have averred as under;- “10. 1 & 5 was required to have been filed by the plaintiffs. I further find that the plaintiffs have averred that cause of action for filing the present suit arose on 15.02.2012 and on subsequent dates. With reference to cause of action on 15.02.2012, in paragraph no. 10 of the plaint, the plaintiffs have averred as under;- “10. ...........Not only that the defendants claimed that the land mentioned in the schedule below on 15.02.2012 by saying that their predecessors-in-interest have not sold the land the mentioned in the schedule below to predecessors-in-interest of the plaintiffs and they wanted to sell and transfer those land to some other person and hence, it is necessary to get right, title, interest of the plaintiffs declared over the land mentioned in the suit below.” 6. From the aforesaid stand taken in the plaint it is apparent that the plaintiffs made specific allegation against all the defendants which, in fact, was false. The Trial Court has noticed that though, in the written statement the names of legal heirs of defendant nos. 1 & 5 have been disclosed, in application dated 18.09.2013 seeking substitution of legal heirs of defendant nos. 1 & 5, the plaintiffs sought impleadment of only two persons namely, Shankar Mandal and Smt. Ujjala Mandalain. The aforesaid facts clearly disclose serious laches on the part of the plaintiffs. As noticed above, the plaintiffs have taken a false plea in the application dated 18.09.2013 disclosing the date of knowledge of the death of the defendant nos. 1 & 5. Moreover, in view of specific stand taken by the plaintiffs in the suit that the defendants claimed the suit land on 15.02.2012 asserting that their predecessor-in-interest never sold the suit land to the predecessors-in-interest of the plaintiffs, it must be held that suit in so far as, against defendant nos. 1 & 5 is concerned, was filed by disclosing a false cause of action. Though, the procedural law should be construed liberally and in a manner which advances the cause of justice, the benefit cannot be extended to the persons who take false plea. Considering the above facts, I find that the judgments cited by the learned counsel for the petitioners are clearly distinguishable on facts. 7. I find no merit in the writ petition and accordingly, it is dismissed. Petition dismissed.