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2016 DIGILAW 1203 (ORI)

Karnunakar Palai v. Satyabhama Palai @ Behera

2016-12-06

D.DASH

body2016
JUDGMENT 1. In this application under Article 227 of the Constitution, the petitioners seek quashment of an order dated 26.6.2009 passed by learned Civil Judge (Sr. Divn.), Bhadrak in T.S. No. 118/1991-I whereby their application to be imleaded as parties through a petition under Order 1 Rule 10 of the Code of Civil Procedure (for short, ‘the Code’) has been rejected. The opp.party no. 1 as the plaintiff had filed the above noted suit for partition arraigning the opp.party nos. 2 to 35 as defendants including the father of the present petitioner nos. 1 to 4 as defendant no. 3 father of present petitioner nos. 6 to 9 and husband of present petitioner no. 5 as defendant no. 4. During pendency of the suit when the defendant nos. 4 and 5 the predecessor-in-interest of the present petitioners died, the present opp.party no. 1, the plaintiff of the suit instead of bringing, their legal representatives as defendants on record though the right to sue against them survives filed a petition under Sub-rule 4 of Rule 4 of Order 22 of the Code in exempting her from the necessity of substituting the legal representatives of those deceased-defendants who are now the petitioners. This was allowed by order dated 1.8.2006. The suit then proceeded further. On 5.8.2008, these petitioners filed a petition under 1 Rule 10 of the Code so as to be impleaded as parties being the legal representatives of those deceased defendant nos. 4 and 5. The grounds taken in the petition are that these petitioners were not were of the legal proceeding and had no knowledge about it. So having come to know about the pendency of the suit, they have made the move. The petitioner faced resistance from the side of the defendant nos. 1 and 23 of the suit who are here the opp.party nos. 2 and 24 respectively. They challenged the maintainability of the petition besides attacking the move to be for protracting the trial in depriving the plaintiff opposite party no. 1 as also others in getting the relief as prayed for partition. 2. I have heard learned counsel for the petitioners and learned counsel for the opp.party no. 1 and learned counsel for the opp.party nos. 2 and 24 at length. 1 as also others in getting the relief as prayed for partition. 2. I have heard learned counsel for the petitioners and learned counsel for the opp.party no. 1 and learned counsel for the opp.party nos. 2 and 24 at length. Perused the order in question as also the other connected orders, the petition under Order 1 Rule 10 of the Code and its objection including the prior petition filed by opp.party no. 1 (plaintiff) under Order 22 Rule 4 (4) of the Code. 3. The trial Court as is seen from the order has rejected the petition as devoid of merit merely taking the view that on the face of the provision of Order 22 Rules 3 and 4 of the Code, these petitioners cannot be impleaded with the aid of the provision Order 1 Rule 10 of the Code. 4. I am afraid to accept the reason as above. Here it is not the case that the opp.party no. 1 being the plaintiff having not resorted to the provision of Order 22 Rule 4 of the Code is seeking to implead the petitioners who are the legal representatives of deceased defendant nos. 4 and 5 as parties to the suit with the aid of the provision of Order 1 Rule 10 of the Code. The present application is by those legal representatives of deceased defendant nos. 4 and 5. The plaintiff in the suit was earlier exempted from substituting the legal representatives of those defendant nos. 4 and 5 i.e. petitioners. Thus, the short reason assigned by the trial Court in rejecting the petition is contrary to the provision of law and its acceptance would lead to say that when the plaintiff does not substitute the legal representatives of a deceased-defendant, there remains no scope for the legal representatives of deceased-defendant for being arraigned as parties to participate in the suit. Such a view is not in consonance with the settled law. Thus said reason for rejection of the petition under order 1 rule 10 of the Code as stated by the trial Court is a flawed one. 5. That view however does not bring an end to this proceeding. Such a view is not in consonance with the settled law. Thus said reason for rejection of the petition under order 1 rule 10 of the Code as stated by the trial Court is a flawed one. 5. That view however does not bring an end to this proceeding. Now the question arises in this case is as to whether once the Court has passed an order exempting the plaintiff from substituting the legal representatives of a deceased-defendant on being satisfied with regard to the pre-conditions laid down in Sub-rule 4 of Rule 4 of Order 22 of the Code and has exercised the discretion as vested in law, if has no power to allow those legal representatives of the deceased-defendant to come to be arraigned as parties on their motion sometime after the death of that deceased –defendant and if those legal representatives of the deceased-defendant have thereby lost their right to approach the Court to have their say in the suit. In other words, exemption to the plaintiff once granted as above under Order 22 Rule 4(4) of the Code whether forecloses the right of those legal representatives to approach the Court to participate in the suit. To put it more clearly, once exercising the discretion as above and by proceeding with the suit and thereby effacing any fatal affect over the findings in the judgment and decree to be passed in the suit at the ultimatum as if having same force and effect if so pronounced before the death of those defendants, the Court whether can allow the entry of those legal representatives of deceased defendant in coming to the arena of the suit on their application to be so impleaded as parties. In order to answer the above point, the fact has to be borne in mind that we are here concerned with a suit for partition. The next aspect we must have in view that when judgment and decree are passed in a suit affecting a party and that party dies thereafter, the Court cannot shut its door when the legal representative/s of that deceased party come/s to file appeal challenging the said judgment and decree and grant of leave to file appeal in that situation is the normal rule and is also given in a routine manner. 6. 6. Pertinent it is to mention that such provision of Sub-rule 4 Rule 4 of Order 22 has come to be introduced in the Code of procedure by amendment act of 1976 coming into force with effect from 1.2.77. The said Sub-rule 4 of Rule 4 Order 22 reads as under:- “xxx xxx xxx Xxx xxx xxx Xxx xxx xxx 4. The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.” Even by a simple reading of the above provision, it is clearly seen that the word “may” has been placed after the word “Court”. It has to be thus said that provision vests a discretion with the Court to exempt the plaintiff from the necessity of substitution the legal representatives of a non-contesting defendant and if such discretion is exercised in favour of the plaintiff granting the exemption, the judgment delivered at the ultimatum containing the findings would remain as effective as has been passed when said deceased defendant was alive. At this juncture, it may be pointed out that Orissa High Court amendment had a similar provision in Rule 4 even prior to the amendment in the Code by Amendment Act of 1976. In fact our High Court and few other High Curt’s Amendment has practically been inserted as Sub-rule 4. Our High Court’s amendment as there mainly to take care of the situation in finally arresting the delay in disposal of the suit. 7. Present provision of Sub-rule 4 of Rule 4 Order 22 of the Code empowers the Court to use discretion as above on being satisfied with few preconditions that the said defendant has not filed the written statement or has failed to appear and contest the suit. In other words, that the said defendant must not have laid any defence in denying the plaint averments and resisting the plaintiff’s claim or thereafter had not appeared to contest the suit. In other words, that the said defendant must not have laid any defence in denying the plaint averments and resisting the plaintiff’s claim or thereafter had not appeared to contest the suit. Its an enabling provision permitting the Court to exempt the plaintiff in that regard of substitution which he is otherwise under legal obligation to go for. It does not permit the party to exercise the discretion in not impleading the legal representatives of the said defendant. The purpose is that when a non-contesting defendant dies, his legal representatives are not necessarily to be brought within the arena of the suit as no need remains again to give them the scope to contest. In that situation by not bringing the legal representatives of a non-contesting defendant is to see that there is no causation of unnecessary delay in disposal of the suit and in case the Court exercises such a discretion, the judgment with the findings and the decree well bind that defendant being deemed under the provision, as if the decree has been passed when that defendant was alive thereby obviously going also to bind the legal representatives of said defendant. The decree thus stands well executable even against those legal representatives. The reason is quite obvious that when the predecessor-in-interest of a defendant through whom his legal representatives claim the right over the subject matter or who legally represent him in the suit being competent to do so and the right sue survives in their favour, when has raised no controversy on the pleadings laid in the plaint thereby giving rise to no issue for being adjudicated and answered as between the plaintiff and said defendant or who has not come forward thereafter to contest the suit by failing to appear, his legal representatives are not required in law to be heard being not so necessary, in view of conduct expressed by the deceased-defendant in the suit as their presence would hardly make any difference. In that premises thus the suitor has been relieved of the obligation to substitute the legal representatives of the said deceased-defendant who has shown above such conducts in the suit being a defaulting or recalcitrant defendant and therefore, the final verdict therein would not be open to attack on the ground of abatement or being passed against a dead man as such a nullity having no legal impact much less to say even upon those legal representatives. However, in my considered opinion the view that once the exemption as above has been granted by the Court in exercise of its discretion being satisfied with the preconditions laid down in Sub-rule 4 that forecloses the right of legal representatives to come forward and seek their impleadment in the suit is not permissible. That in my considered view cannot be said be in the direction of serving the very purpose behind such provision and the objective sought to be achieved thereby. The said standing provision is not meant to be stretched to that extent so as to be said that to serve also that purpose it has been brought into by amendment as that would again cause delay. The objective sought to be achieved is that of arresting unnecessary delay, when ultimately bringing those legal representatives of such a defaulting defendant would serve no meaningful purpose. It is not permissible to take such a view saying that it would not only cause further delay as would have happened had the exemption not been granted had the Court not exercised the jurisdiction and as it may push the culmination of the suit to an uncertainty. Therefore, we shall have to confine ourselves in saying that the exemption granted by a Court to the plaintiff from substituting the legal representatives of a deceased-defendant is for the purpose of progress of the suit for its disposal in accordance with law without inviting the fatal effect of abatement and ultimately to see that the judgment and decree are immune from attack as having been passed against a dead person. But that has nothing to do with the right of the legal representatives to get themselves substituted or brought on record subsequently on their move in that regard in shutting the door of the Court thereby to participate in the suit. But that has nothing to do with the right of the legal representatives to get themselves substituted or brought on record subsequently on their move in that regard in shutting the door of the Court thereby to participate in the suit. Thus the grant of exemption as above cannot stand on the way of the Court to give opportunity to those legal representatives of the deceased party who come forward to be impleaded as parties to the suit. 8. With the above view, now the most crucial point arises for being addressed that while providing the opportunity as above, from which stage they will get that right to contest the suit whether from the day when that defendant died or from the day they come to the arena of the suit being impleaded as parties. Before going to discuss that it may be stated that the very purpose of engrafting the provision under Order 22 Rule 4(4) of the Code is with the objective of arresting unnecessary delay for the reasons as already discussed in detail. Thus if the newly added legal representatives are given the opportunity to contest the suit from the date of death of deceased-defendant, it would certainly be running contrary to the intention of the legislature in making said provision. The plaintiff in that situation would be put to more sufferance had he not resorted to that provision in getting the exemption which can never be said to have been the intention behind. The exemption in that event would fall as a curse upon him. Instead of arresting the delay, the delay would he much more and that would perpetrate mischief that the legal representatives would be waiting till the fag end of the suit and then with the move having been successful be able to see that the valuable time and energy of all concerned spent till then be useless put the plaintiff in the position of the worst sufferer having resorted the said provision for early disposal of the lis and for absolutely no fault on his part. The intention of the legislature in bringing said provision would in that event be totally frustrated and rather it would stand to be taken advantage of in a counterproductive way. The intention of the legislature in bringing said provision would in that event be totally frustrated and rather it would stand to be taken advantage of in a counterproductive way. So normal course would be to provide them the opportunity from that stage of the suit when they come to be added as parties and they cannot claim their right to participate from any anterior state having the effect of reopening of the suit from any anterior date bringing all the progress of the suit in accordance with law till then as that of an exercise in futility. However, there has to be culled out certain exceptions to the above normal course that in such a case the legal representatives coming forward to get them impleaded as parties in place of their predecessor-in-interest i.e. the deceased defendant can only so succeed to contest the suit from the date of death of that defendant. (i) if they satisfy the Court that such discretion has been arbitrarily and illegally exercised or the Court has been led to so exercise the jurisdiction by suppression of materials fact with an oblique purpose of closing the door of the Court to the legal representatives of the deceased defendant at the behest of the plaintiff so as to take undue advantage; or (ii) that the deceased defendant had so connieved with the plaintiff in allowing the plaintiff to get a collusive decree in his favour, with the view in mind to deprive his own legal representatives of their legal rights for some reason or other best known to the deceased-defendant; or (iii) when these legal representatives have some independent right of their own over the subject matter of the suit and they do not wholly claim through the deceased-defendant. If any of these conditions is to be provided to them from that stage of the suit which was prevailing at the time of death of the deceased-defendant. In the instant case, the petitioners have neither projected their case in any such manner as above nor have so shown so as to bring it within any of the above excepted category for providing them the opportunity to participate in the suit from the time of death of their predecessor-in-interest i.e. defendant nos. 3 and 4. 9. In the instant case, the petitioners have neither projected their case in any such manner as above nor have so shown so as to bring it within any of the above excepted category for providing them the opportunity to participate in the suit from the time of death of their predecessor-in-interest i.e. defendant nos. 3 and 4. 9. In the upshot of above discussion and reasons, I sum up that the short reason assigned by the trial Court in rejecting the petition filed by these petitioners under Order 1 Rule 10 of the Code is untenable in the eye of law and I find that the trial Court by rejecting the said prayer of the petitioners has not acted within the bounds if his authority and its in breach of law. Therefore, the petitioners are to be impleaded as parties to this suit as defendants. But with such, it is made clear that they would have the opportunity to participate in the proceeding of the suit only from that stage as it was prevailing as on the date of their move but not from any anterior stage in any manner. To put it with clarity that by such order of impletion of the petitioners as parties to the suit they are not permitted to exercise said right of participation in the proceeding of the suit as it has already traversed till then. Their participation in the suit would arise only from that stage of the suit when they have made the move to come to join therein as parties and that would continue as such till the culmination of the suit. The application under Article 227 of the Constitution is hereby disposed of accordingly. No orders as to cost. Viewing the age of the suit and its long pendency by now, the trial Court is directed to proceed for early disposal of the suit in accordance with law preferably within a period of six months from the date of communication of this order or production of its certified copy whichever is earlier. Application disposed of.