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2017 DIGILAW 1594 (JHR)

Mukund Prasad Jha v. State of Jharkhand

2017-09-05

RAJESH SHANKAR

body2017
JUDGMENT : 1. Mr. Amar Kumar Sinha, appears for the petitioners and Mr. Vineet Prakash, J.C. to learned S.C. (L&C) appears for respondent nos. 1 to 4. However, no one appears on behalf of private respondent nos. 5 to 16. 2. Vide order dated 28.08.2017, last indulgence was given to the private respondent nos. 5 to 16 to appear and contest the present writ petition, failing which the writ petition would be decided after hearing the learned counsel for the petitioners and state respondents. 3. The present writ petition has been filed for quashing the order dated 19.09.2006, passed by the Commissioner, Santhal Pargana Division, Dumka (respondent no. 2) in Civil (Second) Appeal No. 27 of 1988, whereby the appeal of the petitioners has been dismissed on the ground that the legal representatives of the appellant no. 4 were not substituted within time and as such the suit got abated. 4. The factual background of the case is that the plaintiffs/respondents filed a Title Suit No. 135 of 1979/31 of 1981 against the defendants/petitioners before the Assistant Settlement Officer, Deoghar praying therein a decree for partition claiming 2/3rd share in the suit property. The learned Assistant Settlement Officer dismissed the suit vide judgment dated 08.04.1983. The plaintiffs/respondents filed Title Appeal No. 12 of 1983 before the Charge Officer, Dumka, which was allowed vide order dated 09.09.1988. The defendants/petitioners along with Sarbamangala Devi (since deceased) filed Second Appeal No. 27 of 1988 before the Commissioner, Santhal Pargana Division, Dumka. During the pendency of the appeal, the appellant no. 4 (Sarbamangala Devi) died in the year 2000, however substitution application was filed on 31.03.2003 for substituting the name of the legal heirs of the deceased Sarbamangala Devi. A delay condonation application was also filed on 02.11.2004, but the appeal was dismissed by respondent no. 2 vide order dated 19.09.2006 holding that since the substitution application has been filed after expiry of 90 days, the appeal has been abated as a whole. 5. The learned counsel appearing for the petitioners submits that the respondent no. 2 has rejected the petition of the petitioners on technical ground. It is further submitted that the learned court below has misconstrued the provisions contained in Order-XXII Rules 3 and 9 of the Code of Civil Procedure (hereinafter referred as C.P.C.) while rejecting the substitution petition filed by the appellants/petitioners. It is further submitted that the respondent no. 2 has rejected the petition of the petitioners on technical ground. It is further submitted that the learned court below has misconstrued the provisions contained in Order-XXII Rules 3 and 9 of the Code of Civil Procedure (hereinafter referred as C.P.C.) while rejecting the substitution petition filed by the appellants/petitioners. It is further submitted that the respondent no. 2 failed to consider that in case of death of one of the appellants, the right to sue survives for the remaining appellants and the court is competent to proceed with the pending appeal. It is also submitted that the learned court below ought to have allowed the substitution after condoning the delay taking liberal view in order to adjudicate the matter in controversy between the parties. 6. Per contra, the learned counsel appearing on behalf of the state-respondents submits that as per Order XXII rule 3 C.P.C read with Article 120 of the Indian Limitation Act 1963, the legal heirs of the deceased- appellant should be substituted within 90 days of the death, but in the present case, the petition for substitution was filed after 3 years of the death. It is further submitted that the petition for condoning the delay was not filed within 90 days from the date of death and hence it has abated as a whole. The respondent no. 2 has rightly dismissed the appeal of the petitioners. It is also submitted that the appellants have shown carelessness in taking action for substitution of the legal heirs and as such the appeal was rightly held to be abated. 7. Heard the learned counsel for the parties and perused the materials placed on record. Considering the nature of dispute raised in the present writ petition, the very detail of the right of any party is not required to be considered. Admittedly, one of the appellants namely Sarbamangala Devi died in the year 2000 and the substitution application was filed on 31.03.2003 i.e after about 3 years of death. Article 120 of the Indian Limitation Act, 1963 provides that under the Code of Civil Procedure, 1908, the time limit for substitution of the legal representatives of the deceased plaintiff is ninety days. Article 120 of the Indian Limitation Act, 1963 provides that under the Code of Civil Procedure, 1908, the time limit for substitution of the legal representatives of the deceased plaintiff is ninety days. Order XXII Rule 2 of the C.P.C. provides that when there are more than one plaintiffs or defendants and any one of them dies, and the right to sue survives to the remaining plaintiffs and defendants, then after the death of any of the plaintiffs or defendants, the Court shall cause an entry to that effect and shall proceed at the instance of the remaining plaintiffs or defendants. Further Order XXII Rule 3 of C.P.C. provides that if the right to sue does not survive to the remaining plaintiff or plaintiffs, on the application of substitution by the legal representatives of the deceased plaintiff, he/they shall be made party and the court shall proceed with them. However, clause 2 of Rule 3 provides that when the application for substitution was not made within the time prescribed for the same, the suit shall abate so far as the deceased plaintiff is concerned and on the application of the defendant, the court may award cost of the suit to the defendants. From the above provisions, it is clear that if the substitution application is not filed within the prescribed time, the suit shall abate only with respect of the deceased plaintiff and not for the other plaintiffs. Thus, the respondent no. 2 misconstrued the provisions of the C.P.C and proceeded to dismiss the appeal on the ground that since the substitution application was not filed within time the whole appeal is abated. In the case of State of Andhra Pradesh through Principal Secretary and others versus Pratap Karan and others reported in (2016) 2 SCC 82 in para 40 held as under:- 40. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the pattadar and khatadar, the plaintiffs succeeded the estate as sharers being the sons of khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. We are, therefore, of the view that by reason of non-substitution of the legal representatives of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall not stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do not find any reason to agree with the submission made by the learned counsel appearing for the appellants. 8. From the aforesaid judgment, it is clear that if the suit is of such a nature that all the plaintiffs have share in the suit land, then the suit will not abate even the legal representatives of the deceased was not substituted within time. Now, applying the ratio laid down by the Hon’ble Supreme Court in the case of Pratap Karan (supra), it would emerge that the present case is arising out of a partition suit, wherein the plaintiffs/respondents were claiming 2/3rd share in the suit property, but the same was dismissed. In appeal, the first appellate court passed the judgment dated 09.09.1988 allotting 1/3rd share of the entire property jointly to all the appellants and as such, all the appellants before the respondent no. 2 were actually involved in it. Thus, merely by the death of one appellant and non-substitution of the legal heir of the deceased appellant, the whole suit would not stand abated. 9. Under the facts and circumstances of the case, the order of the Commissioner, Santhal Pargana Division, Dumka (respondent no. 2) dated 19.09.2006 passed in Civil (Second) Appeal No. 27 of 1988 is set aside and the matter is remanded back to the respondent no. 2 to proceed with the case with the remaining appellants/petitioners herein. 10. The writ petition is allowed with aforesaid observations and directions.