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2017 DIGILAW 507 (GAU)

TILOTTOMA CHOUDHURY v. RAMANI CHOUDHURY

2017-04-27

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. S.K. Saharia, the learned counsel for the petitioners as well as Mr. S.S. Sharma, the learned Senior counsel assisted by Mr. B.J. Mukherjee, counsel for the respondents. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has assailed (i) order dated 30.11.2015 passed by the learned Munsiff, North Salmara, Abhayapuri, thereby dismissing T.S. No. 34/2000 on abatement; (ii) order dated 26.07.2016 passed in Misc. (J) Case No. 4/2016, arising out of T.S. No. 34/2000, thereby refusing to condone the delay in filing the petition under the provisions of Order XXII Rule 9(2) of the Civil Procedure Code, and (iii) order dated 27.07.2016, passed in Misc. (J) Case No. 5/2016, arising out of T.S. No. 34/2000, thereby rejecting the petition filed under the provisions of Order XXII Rule 9(2) of the Civil Procedure Code, for setting aside abatement. 3. The case projected by the learned counsel for the petitioners is that the petitioners are the plaintiffs in T.S. No. 34/2000, which was being tried by the learned Court of Munsiff, North Salmara, Abhayapuri, Dist. Bongaigaon. The said suit was for declaration that the decree passed in T.S. No. 21/1993 was fraudulent, illegal and void, for permanent injunction, for cost, etc. The predecessor-in-interest of the respondents, namely, Lakhi Kanta Choudhury was the sole defendant in the said suit and he contested the suit by filing his written statement. It was stated that in course of the trial, the petitioners had preferred a revision before this Court, being CRP No. (I/O) No. 119/13, which was disposed-of by order dated 09.09.2015, and pursuant to the said order, the trial proceeded again, and the next date of the suit was fixed on 17.10.2015. 4. It was submitted that on 17.10.2015, the Counsel for the predecessor-in-interest of the respondent filed a petition before the learned Trial Court, informing about the death of the sole defendant in the suit. The Presiding Officer was on leave and, as such, the case was fixed on 30.11.2015 for necessary orders. On 30.11.2015, the petitioners sought for an adjournment on the ground that the names and addresses of the legal representatives of the deceased defendant could not be collected. However, the learned Trial Court, by passing an order dated 30.11.2015, dismissed the suit on abatement. 5. On 30.11.2015, the petitioners sought for an adjournment on the ground that the names and addresses of the legal representatives of the deceased defendant could not be collected. However, the learned Trial Court, by passing an order dated 30.11.2015, dismissed the suit on abatement. 5. Thereafter, the petitioners filed the following petitions, (i) petition under Order XXII Rule 9(2) of the Civil Procedure Code for setting aside abatement, which was numbered as Misc.(J) Case No. 5/2016; (ii) petition under section 5 of the Limitation Act, 1963 for condoning the delay in filing the petition for setting aside abatement, which was numbered as Misc.(J) Case No. 4/2016; and (iii) petition under Order XXII Rule 4 of the Civil Procedure Code for substitution of legal representatives of the deceased defendant. The respondents herein on appearance contested the said applications. Upon hearing the learned counsel for the parties, the said learned court was pleased to pass the orders dated 26.07.2016 and 27.07.2016, referred to above. 6. The learned counsel for the petitioners have strongly submitted that the information about the death of the predecessor-in-interest of the respondent was given to the learned Trial Court only on 17.10.2016, but the learned court did not give any formal notice to the petitioners as contemplated under the provisions of Order XXII Rule 10A of the Civil Procedure. It is also submitted that the sole defendant had died on 15.08.2015, but the information about his death was given only on 17.10.2015, for which the suit was erroneously dismissed, as the period of limitation for substituting the legal representatives of the deceased had not lapsed. It is also submitted that the learned Trial Court had taken a hyper-technical view of the law of limitation and committed illegality in dismissing the petition for condoning the delay by holding that the exact amount of delay had not been mentioned in the petition. 7. Per contra, the learned Senior Counsel for the respondents has submitted that in a petition for condoning delay, it is the duty of the party presenting such petition to calculate the period of delay and is also required to explain the causes which prevented the petitioner from doing the needful within the prescribed period of limitation and the petitioner having not done so, the same is irreparably fatal. It is also submitted that the story of not knowing the names or addresses of the legal representatives of the deceased sole defendant is not at all tenable because the parties are closely related as the plaintiff No.1 is the wife of own brother of the defendant and, as such, the plaintiff No.2, being the daughter of the plaintiff No.1, is the niece of the deceased defendant. Moreover, all of the present respondents, i.e. the legal representatives of the defendant are residents of the same town-Abhayapuri, as such, it is impossible for one person in such a small town not to know the address of even an estranged relative. 8. This Court, upon hearing the learned counsel for the parties and on perusal of the materials on record, is of the view that by the prescription of Article 120 of the Limitation Act, 1963, the period of limitation starts running from the date of death and in respect of Article 121 of the Limitation Act, 1963, the period of limitation starts running from the date of abatement. Therefore, the calculation of the period of delay has to be considered, computed and calculated from the date of happening of the corresponding event. However, if the date of communication of the date of death under Order XXII Rule 10A was done after delay, the same would be a material fact for the Court to consider the explanation of the reasons which prevented the party from applying on time while adjudicating the application for condoning the delay. However, in the present case in hand, there is no statement by the petitioners in Misc. (J) Case No. 4/2016 as to what was the period of delay that was sought to be condoned. In the opinion of this court, only when there is a calculation of the period of delay that the learned Trial Court could apply its judicial mind to appreciate the explanation for delay as projected by the petitioner. Moreover, in the present case in hand, there is a specific statement in paragraph 4 of the plaint of T.S. No. 34/2000 that Late Dharani Kanta Choudhury had two sons, Late Bhuban Chandra Choudhury (predecessor-in-interest of the petitioners) and Lakhi Kanta Choudhury (predecessor-in-interest of the respondents). Moreover, in the present case in hand, there is a specific statement in paragraph 4 of the plaint of T.S. No. 34/2000 that Late Dharani Kanta Choudhury had two sons, Late Bhuban Chandra Choudhury (predecessor-in-interest of the petitioners) and Lakhi Kanta Choudhury (predecessor-in-interest of the respondents). Thus, considering the nature of close relationship that the parties are sharing and the fact that all the parties are residing in Abhayapuri Town, this court has no option but to agree with the submissions made by the learned Senior Counsel for the respondent that the petitioners cannot have any reason not to know the names and addresses of the legal representatives of the deceased sole defendant i.e. the respondents. 9. In the present revision also, the petitioners have not even attempted to project their explanation of omission to mention the days of delay in the petition of Misc. (J) Case No. 4/2016, but it is stated that the orders impugned herein are wholly discriminatory, arbitrary, improper and unjust, which had infringed the fundamental rights and other civil rights as envisaged under the Constitution of India and the other laws of the Country. 10. As the period of limitation begins to run from the date of death of a party in the suit as per the provisions of Article 120 of the Limitaion Act, and in the absence of the calculation of delay in the petition for condonation of delay, i.e. Misc. (J) Case No. 4/2016, this court does not find that the learned Court below had committed any jurisdictional error in passing the three above referred orders impugned herein. Hence, this revision is devoid of any merit and the same is dismissed. 11. The parties are left to bear their own cost.