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2016 DIGILAW 474 (KAR)

MOHAN APPAJI CHIGARE v. SUSHILA SHIVARAM PATIL

2016-06-22

A.N.VENUGOPALA GOWDA

body2016
JUDGMENT : This appeal filed by the defendants is directed against the Judgment and Decree dated 26.09.2014 passed in R.A. No. 26/2014 by the Presiding Officer, FTC – II & Addl. Dist. Judge at Belgaum, confirming the Judgment and Decree dated 09.01.2014 passed in O.S. No.2/1992 by the III Addl. Senior Civil Judge, Belgaum. 2. O.S. No.2/1992 was filed by Sri Maruti Devappa Dhakaluche, to pass a decree for specific performance of contract and perpetual injunction. Defendant No.1 in the said suit, filed O.S. NO.55/1991, later registered as O.S. No.186/1993, against defendant therein, to pass decree of permanent injunction in respect of the suit property involved in O.S. No.2/1992. O.S. No.60/1991, later registered as O.S. No.187/1993, was filed by the plaintiff in O.S. No.2/1992 against the defendants, to pass a decree of permanent injunction. The property involved in all the three suits is one and the same. The suits were clubbed, common evidence was recorded in O.S. No.2/1992 and a common Judgment dated 26.02.2000 was passed. O.S. Nos.2/1992 and 187/1993 were decreed and O.S. No.186/1993 was dismissed. The said Judgment and the Decrees were questioned in RFA Nos.290292/2000. By a Judgment dated 04.12.2007, the appeals were allowed in part and the impugned Judgment and Decrees were set aside and the matter was remanded to the Trial Court to reconsider the suits afresh in terms of the observation made. By a common Judgment dated 09.01.2014, O.S. No.2/1992 was decreed in part and the defendants were directed to execute sale deed in favour of the plaintiff after receiving the balance sale consideration amount. However, suit of the plaintiffs to pass decree of permanent injunction was dismissed. O.S. No.186/1993 was decreed and the defendants were restrained from causing interference into the peaceful possession of the suit property by the plaintiffs, till the plaintiffs execute the registered sale deed in favour of the defendants as per the decree passed in O.S. No.2/1992. O.S. No.187/1993 was dismissed. 3. Assailing the decree passed in O.S. No.2/1992, on 09.01.2014, R.A. No.26/2014 was filed in the Dist. Court at Belgaum and was dismissed vide Judgment and Decree dated 26.09.2014. 4. The sole plaintiff in O.S. No.2/1992 died on 19.01.2009. His legal representatives filed application on 11.01.2012, to permit them to come on record. Separate applications were filed to set aside abatement and for condonation of delay. Court at Belgaum and was dismissed vide Judgment and Decree dated 26.09.2014. 4. The sole plaintiff in O.S. No.2/1992 died on 19.01.2009. His legal representatives filed application on 11.01.2012, to permit them to come on record. Separate applications were filed to set aside abatement and for condonation of delay. The Trial Judge allowed the said applications and ordered for issue of court notice to the parties returnable by 23.05.2012. 5. The question for consideration is, the suit having abated, whether the Trial Court has acted illegally in allowing the belated applications filed seeking condonation of delay, setting aside of abatement and in permitting the legal representatives of the deceased plaintiff to come on record, without providing the opportunity of hearing to the defendants? 6. Sri D. Ravikumar Gokakakar, learned advocate, contended that the sole plaintiff having died on 19.01.2009 and the legal representatives having not made application till 11.01.2012, to come on record and I.As. having been filed belatedly i.e., on 11.01.2012, the Trial Court has committed illegality in allowing the applications, exparte, i.e., without even serving the copies of the same on the defendants and providing them an opportunity of hearing. He submitted that suit having abated automatically with the expiry of 90 days’ period commencing from 19.01.2009, the Trial Court had no jurisdiction to allow the applications filed on 11.01.2012 and that the order passed is wholly illegal. He submitted that the Trial Court has committed error in proceeding with the suit and deciding the case and that the lower Appellate Court has failed to notice the illegality and has committed error in dismissing the appeal. 7. Sri Mrutyunjay Tata Bangi, learned advocate, appearing for the respondents, on the other hand, by placing reliance on the decision in BANWARI LAL Vs. BALBIR SINGH, 2015 AIR SCW 5224, submitted that the provisions contained under Order XXII CPC are not to be construed as rigid matter of principle and must be viewed flexibly in the administration of justice. He submitted that having occasioned to the appellants, there is no scope for interference. 8. Perused the record and considered the rival contentions. 9. There is no dispute that the sole plaintiff, in O.S. No.2/1992, died on 19.01.2009. The suit abates automatically, if the legal representatives, particularly of the sole plaintiff, do not make an application to come on record of the case within the stipulated period. 8. Perused the record and considered the rival contentions. 9. There is no dispute that the sole plaintiff, in O.S. No.2/1992, died on 19.01.2009. The suit abates automatically, if the legal representatives, particularly of the sole plaintiff, do not make an application to come on record of the case within the stipulated period. Rule 1 of Order XXII CPC mandates that the death of a defendant or a plaintiff shall not cause the suit to abate, if the right to sue survives. The concerned party should take steps to come on record and prosecute / defend the case on behalf of the deceased. Order XXII Rule 3 CPC prescribes that where the plaintiff dies and the right to sue has survived, an application can be filed to permit the legal representative of the deceased plaintiff to come on record within the period specified i.e. 90 days. Once the proceeding has abated on account of not taking the required steps, the suit comes to an end, except when the abatement is sought to be set aside and is set aside and the legal representatives are permitted to come on record of the suit i.e., in terms of Order XXII Rule 9 CPC. Sub rule (3) of Rule 9 of Order XXII CPC contemplates that provisions of S.5 of Limitation Act, 1963 shall apply to an application filed under sub rule (2) of Rule 9 of Order XXII. S.5 of Limitation Act confers discretion on the Court to admit an application or an appeal, after the expiry of the prescribed period of limitation if the applicant shows ‘sufficient cause’ for not preferring the application or the appeal within the prescribed period. 10. In MITHAILAL DALSANGAR SINGH AND ORS. Vs. ANNABAI DEVRAM KINI AND ORS., (2003) 10 SCC 691 , Apex Court has held that abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. It has been that for a period of 90 days from the date of death of any party, the suit remains in a state of suspended animation and then it abates and that the result of abatement is denial of hearing on merits of the case and the provision of abatement has to be construed strictly. 11. It has been that for a period of 90 days from the date of death of any party, the suit remains in a state of suspended animation and then it abates and that the result of abatement is denial of hearing on merits of the case and the provision of abatement has to be construed strictly. 11. The plaintiff having died on 19.01.2009 and his legal representatives having not made the application to come on record within 90 days’ period, O.S. No.2/1992 abated. Applications having been filed on 11.01.2012, copies of which was not served on the defendants, without providing an opportunity of hearing to the defendants, could not have been allowed by the Court. The defendants were unaware of the order passed on 11.01.2012. Suit which had abated, could not have been restored, without providing the opportunity of hearing to the defendants i.e., on the filing of the said applications. 12. The error committed by the Trial Court, stated supra, has not been noticed by the lower Appellate Court. The decree passed by the Trial Court being illegal, has been erroneously affirmed by the lower Appellate Court. There being no dispute with regard to the said dates and events, the impugned Judgments and Decrees cannot be sustained because the abatement resulted in denial of hearing on merits of the case. In the result, appeal is allowed and the impugned Judgments and Decrees are set aside. O.S.No.2/1992 is restored. Copies of three I.As. field on 11.01.2012 shall be furnished to the defendants on or before 23.07.2016. Statement of objections, if any, to the said I.As. shall be filed by the defendant, on or before 16.08.2016. The Trial Court shall consider the said I.As. and pass orders on or before 07.10.2016. In order to expedite the proceedings of the case, both parties are directed to appear before the Trial Court on 16.07.2016 and receive further orders.