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2017 DIGILAW 336 (GAU)

Gopal Das @ Rakhal Das v. Tapan Kumar Det

2017-03-16

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. Q.S. Kutubuddin, learned Counsel for the petitioners/defendants and Mr. S.K. Ghosh, learned counsel for the respondents/substituted plaintiffs. 2. By filing the present application under section 151 of the Code of Civil Procedure, the petitioner has prayed for setting aside the order dated 18.03.2015 passed by the learned Munsiff No.1, Goalpara in T.S. No. 61/2006, allowing substitution of the names of the respondents herein as the legal representatives of the plaintiff, who had died on 01.04.2012. The learned counsel for the petitioners projected that without there being any application for condoning the delay and for setting aside abatement, the substitution of plaintiff, who had died on 01.04.2012 was allowed by the order dated 18.03.2015 passed by the Court of learned Munsiff No.1, Goalpara in TS No. 61/2006. The learned counsel for the petitioner has placed reliance on the case of Bhag Mal @ Ram Bux & ors. v. Munshi (Dead) by LRs & ors., (2007) 11 SCC 285 , to argue that on failure to make applications for setting aside abatement and for substitution, the order of abatement of suit becomes a final order and the civil courts have no jurisdiction to extend the periods of limitation under Article 120 and Article 121 of the Schedule appended to the Limitation Act. 3. Per contra, the learned counsel for the respondents has submitted that in the present case, the sole plaintiff had instituted TS No. 7/2006 before the Court of Civil Judge (Senior Division), Goalpara. The respondents/defendants contested the suit by filing their written statement and counter-claim. The plaintiff submitted their written statement to the counter-claim of the defendants. The said suit was thereafter transferred to the Court of Munsiff No.1, Goalpara for disposal, where it was renumbered as TS No. 61/2006. The suit was decreed on 29.06.2010. The said judgment and decree dated 29.06.2010 was challenged before the Court of Civil Judge, Goalpara, which was numbered as T.A. No. 5/11. The first appellate court by its judgment dated 02.12.2012 had set aside the decree passed by the learned trial court and the suit was remanded back to the learned trial court with a direction to frame two additional issues. On remand, the trial of the said TS 61/2006 had re-started. 4. It is further submitted that in course of re-trial, the sole plaintiff had died on 01.04.2012. On remand, the trial of the said TS 61/2006 had re-started. 4. It is further submitted that in course of re-trial, the sole plaintiff had died on 01.04.2012. Thereafter, on 10.04.2012, the learned counsel for the plaintiff by filing petition No. 407, informed the learned court about the death of the plaintiff had prayed for some time to file application for substitution of his legal representatives, which was allowed and the case was re-fixed on 09.05.2012. On the said date, the learned counsel for the deceased plaintiff by filing petition No. 490 once again prayed for some time to file application for substitution, but the same was rejected and the suit was re-fixed on 14.05.2012 by passing the following order - "Heard both sides. No objection by both sides. Fixed 14.05.2012 for judgment." 5. On 14.05.2012, the learned counsel for the deceased plaintiff filed petition No. 493 for substitution of the respondents herein as legal representatives of the plaintiff. However, the same was rejected by the learned Court of Munsiff No.1, Goalpara on the ground that the legal heirs cannot adduce fresh evidence. The TS No. 61/2006 was decreed by judgment and decree dated 14.05.2012. 6. It is further submitted that the petitioners herein, being the aggrieved defendants, preferred an appeal, which was registered as T.A. No. 8/2012. By referring to the copy of judgment and decree passed by the learned first appellate court, the learned counsel for the respondents have strongly urged that while filing the appeal, the petitioners as appellants had already carried out the substitution and the name of the respondents herein were duly entered into the cause title as substituted respondents. 7. It is submitted that the learned Civil Judge, Goalpara, by its first appellate judgment and decree dated 28.08.2014, inter-alia, held that the decree passed against a dead person is not tenable under the law and, as such, the suit was remanded back to the trial court for fresh trial as per the judgment and decree dated 02.12.2012 passed in TA No. 5/11 after hearing both sides. 8. 8. The learned counsel for the respondents have made three fold arguments; firstly, if a party to the suit dies once the hearing has begun, there is no abatement as per the provisions of Order 22, Rule 6 of the Civil Procedure Code; secondly, the plaintiff having expired on 01.04.2012, the petition for substitution filed on 14.05.2015 was within the time allowed under Article 120 of the Schedule appended to the Limitation Act, 1963, however, the learned trial court committed the error for not carrying out the substitution, for which the respondents cannot be penalized because after judgment was delivered, the respondents were left without any forum to apply for substitution; thirdly, the petitioners had themselves carried out the substitution in appeal by arraying the respondents as legal representatives of the deceased plaintiff, which was within time, there was no need for any further substitution because once a substitution was carried out, the only requirement before the trial court was to carry out the amendment in the cause title of the plaint and, as such, the application for substitution before the learned trial court was under a wring provision, nonetheless, there was no requirement for any further substitution, hence, neither any petition for setting aside abatement not any application for condoning of delay was necessary. 9. This Court has perused the materials on record and is of the opinion that this case in hand perhaps presents the precise reason why our elders had thought of the legal maxim of "actus curiae neminem gravabit", which means that the act of the court shall prejudice no one, which becomes applicable in such a fact situation. By keeping in mind the said principle, it would be proper to revisit the case again. It is seen that the sole plaintiff had died on 01.04.2012 and notwithstanding the dismissal of adjournment petition No. 490 by order dated 09.05.2012, the petition for substitution bearing petition No. 493 dated 14.05.2012 was well within the time prescribed under Article 120 of Schedule appended to the Limitation Act. However, although the learned Munsiff No.1, Goalpara, specifically did not reject petition No. 490, but the learned court by order dated 09.05.2012, merely fixed the suit for judgment on 14.05.2012 as stated hereinbefore. However, although the learned Munsiff No.1, Goalpara, specifically did not reject petition No. 490, but the learned court by order dated 09.05.2012, merely fixed the suit for judgment on 14.05.2012 as stated hereinbefore. Thus, the suit was heard on 09.05.2012, i.e. 39 days after the death of the plaintiff and, as such, the provisions of Order 22, Rule 6 of Civil Procedure Code would have no application in the present case in hand. Now, after the suit was decreed, the petitioner herein carried out the substitution and in the memo of appeal, they entered the name of the respondents herein as legal representatives/heirs of the sole plaintiff. The said appeal having been presented on time, was well within the period of 90 days available for substitution under Article 120 of the Schedule appended to the Limitation Act. Thus, once the substitution of respondent/plaintiff was made before the first appellate court, this court is inclined to accept the contention of the learned counsel for the respondent that upon remand of suit back to the trial court, there was no legal requirement of carrying out substitution of the deceased plaintiff in the plaint, which remains a mere formality and can be done by amending the cause title of the plaint. 10. This court is of the view that although upon remand of the suit, the learned court by the impugned order dated 18.05.2015 entertained a fresh substitution petition presented under Order 22, Rule 3 of the Civil Procedure Code, but once a deceased party was substituted before the superior court, there is no requirement for once again substituting the same person in suit after remand. Subsequent substitution can be done by only amending the cause title of the plaint. 11. The settled position of law is that once the prescribed period of limitation under Article 120 of the Schedule appended to the Limitation Act is over, no substitution can be allowed without applying for setting aside abatement. Similarly, once the prescribed period of limitation is over, unless the delay is condoned under section 5 of the Limitation Act, there would be a legal bar to set aside abatement of the suit. If no substitution is carried out within the prescribed period limitation in a civil suit, the suit gets abated and without condoning the delay, the court has no power to extend the period of limitation. If no substitution is carried out within the prescribed period limitation in a civil suit, the suit gets abated and without condoning the delay, the court has no power to extend the period of limitation. Thus, the argument made by the learned counsel for the petitioner, based on the case of Bhag Mal (supra) is sustained. 12. As a result of the above discussion, this court is of the view that the learned trial court erred in law in allowing substitution by the impugned order dated 18.03.2015 passed in T.S. No. 61/2006. Therefore, the same is set aside. 13. However, this court hastens to add that as it is found that the learned Court of Munsiff No.1, Goalpara, appears to have on an earlier occasion, rejected the petition for substitution on a incorrect proposition that substituted legal representatives are not entitled to give evidence and not on the ground that it was barred by limitation, this court is of the view that at the said point of time, the learned trial court proceeded with undue haste and without waiting for prescribed period of limitation under Article 120 of Schedule appended to the Limitation Act, 1963 to expire. This, as seen above, has resulted in a decree be passed in favour of a dead person and consequently, the suit was again remanded back for trial for the second time and in the process the learned first appellate court is also found to have lost sight of the fact that while presenting the appeal, the respondent/plaintiff was duly substituted by the petitioner herein for which there was no need for a second substitution of the plaint by the trial court again. Therefore, by applying the well settled legal maxim of "actus curiae neminem gravabit", which means that the act of the court shall prejudice no one, it is directed that the learned trial court shall now treat the amendment done in the cause title of the plaint as an amendment, consequential to the substitution of the legal representatives of the plaintiff as respondents in the proceeding/Memo of Appeal of TA No. 8/2012, which is evident from the copy of the judgment and decree dated 28.08.2014, passed by the learned first appellate court. 14. The trial court shall now proceed with the matter in accordance with law, keeping in view the findings recorded herein above. 15. 14. The trial court shall now proceed with the matter in accordance with law, keeping in view the findings recorded herein above. 15. The revision stands partly allowed on the terms as indicated above by modifying the impugned order dated 18.03.2015 passed by the learned Munsiff No.1, Goalpara in T.S. No. 61/2006 directing the substitution of legal representatives of the plaintiff to have been made by way of amendments as indicated above. Epilogue 16. At the conclusion of hearing, the learned counsel for the petitioner has submitted a copy of death certificate showing that the petitioner No.3- Narayan Chandra Das had expired on 25.07.2016 and has submitted that his name be struck-of as all his legal representatives are on record as petitioners No. 1, 2 and 4 to 11. The said prayer is allowed and, as such, the office is directed to strike out the name of the petitioner No.3, namely, Narayan Chandra Das.