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2017 DIGILAW 614 (JHR)

Bhaiya Ashok Kumar v. Bhaiya Guru Sharan

2017-04-03

APARESH KUMAR SINGH

body2017
1. Heard learned counsel for the petitioners. 2. Brief facts of the instant case are being referred to hereunder in order to deal with the question raised by the writ petitioners while seeking quashing of the order dated 23.12.2013 passed by the learned Civil Judge-II, Sr. Division, Hazaribag in Misc. Case No. 04 of 2009, Annexure-3 whereby the petition filed by the opposite parties/petitioners herein on the maintainability of the Miscellaneous Case filed under Order XXII Rule 9 of the Code of Civil Procedure has been rejected. 3. Plaintiffs filed Title Suit No. 128 of 1981 before Munsif, Hazaribag seeking a declaration that decree passed in Title Suit No. 07 of 1976 by learned Munsif, Hazaribag on 11.08.1977 is null and void and fit to be set aside; for grant of permanent injunction restraining the defendant nos. 1, 2 and 7 from proceeding with the Execution Case No. 21 of 1981 pending in the Court of Munsif, Hazaribag and further to order that defendant nos. 1, 2 and 7 to be evicted from the suit premises; plaintiffs be put in khas possession of the same. After filing of the written statement vide order dated 16.01.2009 (Annexure-4 to the supplementary affidavit of the petitioner), the suit was dismissed as abated on the following grounds:- “Perused the case record. I find that on 15.02.06, plaintiff had filed a petition for deleting the name of plaintiff Rupa Kumari and defendant Mohini Devi from the cause title of the plaint. On 14.5.07, a rejoinder was filed by the defendants against this petition of the plaintiff and in the para 3 of the rejoinder it was averred that defendant No. 7 has died 5 years ago within the knowledge of original plaintiff who had attended his funeral. I find that copy of this petition was also served to the learned counsel for the plaintiff. Even assuming that plaintiffs had no knowledge of the death of the defendant No. 7, it can be inferred that on 14.5.07, plaintiffs came to know about the death of defendant No. 7. In this situation plaintiff was bound to either delete the name of the deceased defendant or substitute the names of his legal heirs after deleting his name within 90 days from the date of knowledge i.e. 14.5.07. In this situation plaintiff was bound to either delete the name of the deceased defendant or substitute the names of his legal heirs after deleting his name within 90 days from the date of knowledge i.e. 14.5.07. But I find that on 12.2.08, petition for deleting the name of the defendant No. 7 from the cause title of the plaint was filed without any petition seeking condonation of delay. So far as this argument of the learned counsel of the plaintiff is concerned that defendant No. 7 was neither necessary nor proper party of the suit and defendant No. 1 and 2 has regained the possession of one room sublet to deceased defendant is concerned, I find that relief of eviction has also been sought against defendant No. 7 vide relief B as mentioned in the plaint and this defendant No. 7 has also filed written statement. Further I fail to understand when this defendant No. 7 was not necessary party and he was ousted from the suit premises vide execution of decree passed in T. S. No. 7/76, why the plaintiff did not take step to delete the name of defendant No. 7 earlier. Moreover, there is no document on the record to show that defendant No. 7 is not residing in the suit premises and has been evicted from the same. I further find that plaintiff has not filed any petition under Order VI, Rule 17 of the C. P. C. to change the relief 'B' sought by him in the plaint because in the relief 'B', relief of eviction has been sought against defendant No. 1, 2 and 7. From the perusal of the plaint, it does not specify in which part of the suit premises defendant No. 7 was residing. Relief against defendant No. 1, 2 and 7 cannot be separated and isolated. In the aforesaid circumstances, I am of the definite opinion that defendant No. 7 was necessary party in the suit and since after his death, no step for substitution was taken by the plaintiffs within stipulated period, the suit has abated. As such the instant suit is dismissed as abated.” 4. In the case of Perumon Bhagvathy Devaswom, Perinadu Village Vs. As such the instant suit is dismissed as abated.” 4. In the case of Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRS and others reported in (2008) 8 SCC 321 , Hon'ble Supreme Court in a matter relating to setting aside of the abatement under Order XXII Rule 9 held at para-5 as under: - “5. Having regard to the wording of Rule 4, it is clear that when a respondent dies and an application to bring his legal representative on record is not made, abatement takes place on the expiry of the prescribed period of 90 days, by operation of law. Abatement is not dependent upon any judicial adjudication or declaration of such abatement by a judicial order. It occurs by operation of law. But nevertheless “abatement” requires judicial cognizance to put an end to a case as having abated. To borrow a phrase from Administrative Law (used with reference to void orders), an appeal bears no brand on its forehead that it has “abated”, nor does it close itself automatically on abatement. At some stage, the court has to take note of the abatement and record the closure of the case as having abated (where the deceased was a sole respondent) or record that the appeal had abated as against a particular respondent (if there are more than one and the cause of action survives against the others). 5. As quoted hereinabove, abatement is not dependent upon any judicial adjudication or declaration of such abatement by a judicial order as it occurs by operation of law. But nevertheless “abatement” requires judicial cognizance to put an end to a case as having abated. At some stage, the court has to take note of the abatement and record the closure of the case as having abated (where the deceased was a sole respondent) or record that the appeal had abated as against a particular respondent (if there are more than one and the cause of action survives against the others). Plaintiffs preferred a petition under Order XXII Rule 9 of the Code of Civil Procedure for setting aside of the abatement, which was registered as Misc. Case No. 04 of 2009 before the Court of Sub-Judge, VI, Hazaribag. Plea of maintainability of the petition was raised by the defendant/opposite party nos. Plaintiffs preferred a petition under Order XXII Rule 9 of the Code of Civil Procedure for setting aside of the abatement, which was registered as Misc. Case No. 04 of 2009 before the Court of Sub-Judge, VI, Hazaribag. Plea of maintainability of the petition was raised by the defendant/opposite party nos. 1 and 2 therein relying upon the provisions under Order XLIII Rule 1(k) of the Code of Civil Procedure. That plea was declined vide order dated 16.07.2011 by the learned Sub-Judge-VI, Hazaribag with the following observations:- “Heard both the parties and perused the record. From perusal of record, I find that instant Misc. Case has been filed under Order XXII Rule 9 of the C. P. C. with a prayer to set aside the order dated 16.1.09 passed in T. S. No. 128/81 by which the suit was dismissed as abated and restored the original suit in its original file. After admission of the case, notices were issued against the opposite parties. After receiving of notice, opposite parties appeared in the case and filed their show cause. Thereafter they have filed this petition to hear the opposite parties on the point of maintainability of the Misc. Case first. The petition under discussion attracts two provisions of law. The first provision is under Order XXII Rule 9 of the Code of Civil Procedure and the second provision is Order XLIII Rule 1(k). It is saying of the petitioners/plaintiffs that this Misc. Case is maintainable under Order XXII Rule 9 whereas it is saying of the opposite parties that Order XXII Rule 9 is not attracted rather the provision perfected under Order XLIII Rule 1(k) is available to the parties aggrieved. First of all I take the notice of the above provision under Order XXII Rule 9 runs as follows:- (I) Where a suit abates or is dismissed under Order, no fresh suit shall be brought on the same cause of action. (II) The plaintiff or person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of insolvent, plaintiff may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from contesting the suit, the Court shall set aside the abatement or dismissal upon such terms as to cost of otherwise or it thinks fit. (III) The provision of Section 5 of Limitation Act shall apply to application under Sub Rule 2 Further Order XLIII Rule 1(k) runs as follows:- “An order under Rule 9 of Order XXII refusing to set aside the dismissal of a suit.” 6. From the plain reading of aforesaid provision makes it clear that the plaintiff or the person claiming the legal representative of the deceased plaintiff or assignee or the receiver in case of insolvent, plaintiff may apply for an order to set aside the abatement or dismissal under Order XXII Rule 9 Sub Rule 2 and if any order passed by the Court under Order XXII Rule 9 Sub Rule 2 refusing to set aside the dismissal of a suit then aggrieved party may file an appeal under order XLIII Rule 1(k). In this case, the plaintiff has filed this petition for setting aside the abatement order under Order XXII Rule 9 and in the light of above provision, it is maintainable. Further from perusal of record, I also find that the then court at the time of admission of this Misc. Case vide order dated 19.2.2010 also held that this Misc. Case is maintainable. 7. In this aforesaid circumstances, objection petition filed by the opposite party nos. 1 and 2 stands rejected. Parties are directed to appear before the Court for hearing on the next date positively. Put up on 6.8.2011.” 8. The rejection of the plea of maintainability vide order dated 16.07.2011 remain unchallenged. Thereafter, the impugned order has been passed on two petitions dated 06.08.2011 filed by the opposite party nos. 5 to 13 and another petition dated 03.09.2011 filed by the opposite party nos. 1 and 2. Rejoinder to the petition dated 03.09.2011 was also filed by the plaintiff. Perusal of the impugned order dated 23.12.2013 indicates that plea of maintainability on the same ground have been taken this time also on the basis of the provisions of Order XLIII Rule 1(k). Learned Court has taken note of the fact that earlier order dated 16.07.2011 was passed rejecting the objection to the maintainability taken by the opposite party nos. 1 and 2 herein. They are again seeking to press the same plea in a manner seeking review of the earlier order. Learned Trial Court has also observed that opposite party nos. Learned Court has taken note of the fact that earlier order dated 16.07.2011 was passed rejecting the objection to the maintainability taken by the opposite party nos. 1 and 2 herein. They are again seeking to press the same plea in a manner seeking review of the earlier order. Learned Trial Court has also observed that opposite party nos. 3 to 15 did not press their rejoinder nor took part in hearing before passing the order dated 16.07.2011. They, however, have again sought to press the plea of maintainability through petition dated 06.08.2011. After consideration of their plea and the earlier orders passed including the one dated 16.07.2011, the learned Court was satisfied that the opposite parties have failed to make out a reasonable ground to question the maintainability of the Miscellaneous Case. Their objection dated 06.08.2011 was accordingly rejected. The case was fixed for cross-examination of the witnesses of the opposite party. 9. By order dated 06.03.2017, status report was called for from the learned Trial Court. Vide letter dated 20.03.2017, the learned Court of Sr. Civil Judge, II-cum-Spl. Judge, Land Acquisition, Hazaribag has informed that the next date in Misc. Case is 10.4.2017 and the case is awaiting the order of this Court in W. P. (C) No. 598 of 2014 i.e. the present case. 10. In this background, the question which requires consideration is whether such plea of maintainability by opposite party/petitioner herein were justifiable under the provisions of Code of Civil Procedure or not. It is not in doubt that earlier the plea of maintainability on the same ground of availability of forum of appeal under Order XLIII Rule 1(k) raised at the behest of opposite party nos. 1 & 2 was declined by the learned Trial Court vide order dated 16.07.2011, which has never been challenged. It further appears that by the order dated 16.01.2009 passed in Title Suit No. 128 of 1981, the learned Court had come to a finding that plaintiffs had not taken steps within time prescribed for substitution of the deceased defendant no. 7 despite knowledge of the fact through rejoinder filed by the defendants on 14.05.2007 itself. Plaintiff had also sought relief against defendant no. 7 apart from defendant no.1 and 2. Learned Trial Court found from perusal of the plaint that the Plaintiff had failed to specify in which part of the suit premises Defendant no.7 was residing. 7 despite knowledge of the fact through rejoinder filed by the defendants on 14.05.2007 itself. Plaintiff had also sought relief against defendant no. 7 apart from defendant no.1 and 2. Learned Trial Court found from perusal of the plaint that the Plaintiff had failed to specify in which part of the suit premises Defendant no.7 was residing. Therefore, it held that the relief against the Defendant no. 1,2 and 7 cannot be segregated and isolated. Accordingly, it has held that the Defendant No.7 was necessary party in the suit. Since after his death no step for substitution was made by the Plaintiffs within stipulated period, it was held that the suit has abated. As such the instant suit was dismissed as abated. Petition under Order XXII Rule 9 of the CPC has been filed thereafter by the Plaintiffs for setting aside the abatement and dismissal of the suit. Order XXII Rule 9 of the CPC reads as under:- “9. Effect of abatement or dismissal.-(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2).” Order XLIII Rule 1(k) of the CPC is also quoted hereunder:- “1. Appeals from orders.-An appeal shall lie from the following orders under the provisions of section 104, namely: (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;” 11. The applicability of the provisions of Order XXII Rule 9 of Code of Civil Procedure for setting aside the abatement or dismissal of the suit and on rejection of such dismissal, the remedy of appeal provided under Order XLIII Rule 1(k) of the Code of Civil Procedure was also considered by Hon'ble Supreme Court in the case of Mangluram Dewangan Vs. Surendra Singh and others reported in (2011) 12 SCC 773 and at para-10 it was held as under: “10. A combined reading of the several provisions of Order 22 of the Code makes the following position clear: (a) When the sole plaintiff dies and the right to sue survives, on an application made in that behalf, the court shall cause the legal representative of the deceased plaintiff to be brought on record and proceed with the suit. (b) If the court holds that the right to sue does not survive on the death of the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code. (c) Even where the right to sue survives, if no application is made for making the legal representative a party to the suit, within the time limited by law (that is, a period of 90 days from the date of death of the plaintiff prescribed for making an application to make the legal representative a party under Article 120 of the Limitation Act, 1963), the suit abates, as per Rule 3(2) of Order 22 of the Code. (d) Abatement occurs as a legal consequence of (i)court holding that the right to sue does not survive; or (ii)no application being made by any legal representative of the deceased plaintiff to come on record and continue the suit. Abatement is not dependent upon any formal order of the court that the suit has abated. (e) Even though a formal order declaring the abatement is not necessary when the suit abates, as the proceedings in the suit are likely to linger and will not be closed without a formal order of the court, the court is usually to make an order recording that the suit has abated, or dismiss the suit by reason of abatement under Order 22 of the Code. (f) Where a suit abates or where the suit is dismissed, any person claiming to be the legal representative of the deceased plaintiff may apply for setting aside the abatement or dismissal of the suit under Order 22 Rule 9(2) of the Code. If sufficient cause is shown, the court will set aside the abatement or dismissal. If however such application is dismissed, the order dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code. If sufficient cause is shown, the court will set aside the abatement or dismissal. If however such application is dismissed, the order dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code. (g) A person claiming to be the legal representative cannot make an application under Rule 9(2) of Order 22 for setting aside the abatement or dismissal, if he had already applied under Order 22 Rule 3 for being brought on record within time and his application had been dismissed after an enquiry under Rule 5 of Order 22, on the ground that he is not the legal representative.” 12. It is evident from the aforesaid discussion that the Plaintiffs or their legal heirs sought setting aside of the abatement and dismissal of the suit in the instant Miscellaneous Petition, which was found to be perfectly maintainable by the Learned Trial Court upon consideration of the objections by the Opposite Party nos.1 and 2 in the light of provisions of Order XXII Rule 9 of the Code of Civil Procedure. Provisions of Order XLIII Rule 1 (k) show that appeal would lie against the order passed under Rule 9 Order XXII refusing to set aside the abatement or dismissal of the suit. It is, therefore, clear that the remedy of appeal under Order XLIII Rule 1 (k) would be available to the aggrieved party, if the application to set aside the abatement or dismissal of the suit was rejected in terms of Order XXII Rule 9 of the CPC. The plaintiff or their legal heirs are, therefore, rightly pursuing the proceeding under Order XXII Rule 9 of the CPC for setting aside of the abatement/dismissal of the suit as per the order dated 16.01.2009 passed in Title Suit No. 128 of 1981. 13. At the cost of repetition, it is once again stated that the order rejecting the objection of maintainability of the Miscellaneous Petition dated 16.07.2011 remain unchallenged. However, opposite party nos. 1 & 2 and 5 to 13 have again resorted to petition dated 06.08.2011 and 03.09.2011 raising the similar plea of maintainability, which has been rightly declined by the learned Court of learned Civil Judge-II, Sr. Division, Hazaribag vide impugned order dated 23.12.2013. However, opposite party nos. 1 & 2 and 5 to 13 have again resorted to petition dated 06.08.2011 and 03.09.2011 raising the similar plea of maintainability, which has been rightly declined by the learned Court of learned Civil Judge-II, Sr. Division, Hazaribag vide impugned order dated 23.12.2013. It does not call for any interference under Article 227 of the Constitution as it does not suffer from any infirmity in law or errors of jurisdiction. The Miscellaneous Case No. 04 of 2009 appears to be pending since 2009. Learned Court would proceed to conclude the proceedings of the Miscellaneous Case as expeditiously as possible. It would also see that no unnecessary adjournments are granted to the parties. On account of the reasons recorded herein-above and the discussion made, the writ petition is dismissed.