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2016 DIGILAW 1592 (JHR)

Saraswati Kuer v. Krishna Prasad

2016-11-24

AMITAV K.GUPTA

body2016
ORDER : This revision is directed against the order dated 18.04.2013, passed by Additional Munsif, Palamau at Daltonganj, in Title Suit no.32 of 2002, whereby the court below had allowed the substitution petition of deceased defendant no.1 (a). 2. The plaintiff instituted the suit for declaration of his right, title and interest over the suit property. Learned counsel has assailed the impugned order on the ground that, it would be evident from the petition dated 26.06.2008, filed by the plaintiff that he was aware about the death of defendant no.1, namely Ramautar Sao, who died on 14.05.2008, leaving behind the legal heirs despite this, the plaintiff did not take steps for substitution of the legal heirs. That the plaintiff filed a petition for substitution on 23.09.2008, under Rule 4 and 9 of Order 22 read with Section 151 C.P.C., and thereafter, the defendants had filed a rejoinder stating that the substitution petition has been filed deliberately for delaying the trial as the suit had abated. They asserted that the name of legal heirs are bogus and fictitious. The court below allowed the substitution petition, vide order dated 29.07.2010, substituting a dead person without holding an inquiry as required under Rule 5 of Order 22 C.P.C. That summon was issued against the substituted legal heir who had pre-deceased defendant no.1 as per the process server report that defendant no.1(a) namely, Awadhesh Kumar Soni died on 01.05.2005. It is submitted that the court below should have held an inquiry that the substituted legal heir of defendant no.1 (a) had predeceased his father i.e. the original defendant no.1, namely, Ramautar Saw and necessary action should have been taken against the plaintiff for furnishing false information on affidavit. That the court below should have recalled the order dated 29.07.2010, but, without following the required procedure, the court below vide order dated 29.08.2011, directed the plaintiff to implead the substituted heir of deceased defendant no.1(a). That on 24.08.2012, the plaintiff by suppressing the material facts as well as the order dated 29.08.2011, filed a petition for substitution of legal heirs and representatives of deceased respondent no.1(a), who had predeceased his father. That a rejoinder was filed by the defendants on 24.08.2012, but, the court below without setting aside the abatement allowed the petition for substitution of legal heirs along with the petition under Section 5 of the Limitation Act. That a rejoinder was filed by the defendants on 24.08.2012, but, the court below without setting aside the abatement allowed the petition for substitution of legal heirs along with the petition under Section 5 of the Limitation Act. On the above grounds, it is submitted that the learned trial court has committed grave error in law by not recalling the order dated 29.07.2010 and 29.08.2011 and allowed the substitution petition without holding an inquiry or by recalling the order despite the facts brought to the notice of the court. 3. Learned counsel in support of his contention has relied on the decision in the case of Ram Kishun Ojha Vs. Ram Dulari Kuer & Anr. reported in AIR 1937 Pat 530, the decision in the case of Doddappa Maritammappa Basaput & Anr. Vs. Erappa Mudakappa Navalli & Ors. reported in AIR 1982 Kar 191 and the decision in the case of Sitaram Beura Vs. Kishore Beura & Ors. reported in AIR 1977 Ori 65 . It is submitted by the counsel that it has been held that in the case of Ram Kishun Ojha (supra) that it is not sufficient for the judge to act (under Section 5 C.P.C) as he did by merely substituting any person in preference to another and that order could be made only after inquiry having been entered into, the result of which would have acted as res judicata. That the order for substitution passed under Order 22 C.P.C without noticing the parties could be recalled and question of substitution could be reopened. The application was under Order 22 Rule 3 C.P.C and was with respect to the death of the plaintiff. In the decision of the Karnataka High Court, it has been held that the date of limitation commences from the death of the deceased and not on the knowledge provided under section 10A of Order 22 C.P.C. 4. Mr. Manish Kumar, learned counsel appearing on behalf of State- Bihar Hindu Religious Trust Board, has supported the order. It transpires from the record that despite valid service of notice upon the respondents, they have not appeared. 5. Heard. The contention of the learned counsel that the suit has abated as the application for substitution was not filed within time and person substituted had already died, was within the knowledge of the plaintiff is not acceptable. It transpires from the record that despite valid service of notice upon the respondents, they have not appeared. 5. Heard. The contention of the learned counsel that the suit has abated as the application for substitution was not filed within time and person substituted had already died, was within the knowledge of the plaintiff is not acceptable. In this context it is relevant to note that the suit has been filed against as many as eight respondents and death of one does not result in abatement of suit, when the right to sue against the remaining defendants survives, then the suit will not abate, moreover, it would be evident from the order dated 29.07.2010 that the plaintiff had filed a petition seeking direction of the court on the defendants, directing them to furnish the names and address of legal heir/representative of deceased defendant no.1, but for the reasons best known to the defendants, they did not provide the information, whereupon by Order dated 29.07.2010, the legal heirs were substituted with respect to deceased defendant no.1 and when the plaintiff came to know that the substituted defendant no. 1(a) had predeceased the original defendant no.1, then he filed the petition and by impugned order, the other legal heirs of deceased defendant no.1 (a) were also substituted. The trial court has held that the delay was not caused by the plaintiff knowingly or intentionally. That substitution petition could be filed when the defendants provided the information regarding death of the defendants or only when it comes to the knowledge of the plaintiff that any of the defendant has died. In the given circumstances, the court below had condoned the delay and allowed the substitution petition of the legal heirs/representatives of deceased respondent no.1 (a). 6. It is settled law that once the substitution petition is allowed, the abatement is set aside by implication. Hence, the decision relied upon by the learned counsel is of no help in the present revision. This court is of the considered opinion that no illegality or impropriety has been committed by the court below, consequently, this revision, stands dismissed. 7. It is settled law that once the substitution petition is allowed, the abatement is set aside by implication. Hence, the decision relied upon by the learned counsel is of no help in the present revision. This court is of the considered opinion that no illegality or impropriety has been committed by the court below, consequently, this revision, stands dismissed. 7. It is evident that the title suit is of the year 2002, hence, the trial court is directed to expedite the trial and conclude it positively within one year from the date of receipt of copy of this order and no unnecessary adjournment should be granted to either of the parties.