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2017 DIGILAW 704 (JHR)

Jaideb Hembram v. Nirmal Hembram

2017-04-18

APARESH KUMAR SINGH

body2017
JUDGMENT : Mr. Aparesh Kumar Singh, J. Heard learned counsel for the petitioners and learned counsel representing the respondent no.2/plaintiff no.3. 2. Learned court of Civil Judge, Senior Division-II, Jamtara has by the impugned order dated 9th January 2017 passed in Title Suit No.23/2005 allowed substitution of the legal heirs of plaintiff no.1 Anil Hembram being his widow and daughter (respondent nos. 3 and 4 herein). 3. Brief facts relevant for consideration of the issues in controversy are referred to herein after. An application was made on 6th August, 2008 for substitution of the legal heirs of plaintiff no.1 (his widow and daughter) before the learned court stating that he had died on 27th May 2008. An application for condonation of delay was also made under Section 5 of the Limitation Act on the same day. It was stated therein that the plaintiffs are tribals by caste and illiterate Santhals. It also reiterated that plaintiff no.1 died on 27th May 2008. A petition was also filed on the same day by plaintiff no.2 stating that plaintiff no.1 had died on 27th May 2008. Defendants were allowed time to file rejoinder to the same as is evident from the order dated 6th August 2008. A rejoinder was also filed on the next date i.e. 27th August 2008 stating that the death occurred on 21.04.2008 and the application for substitution is not within time. It is evident from the order dated 4th December 2008 (part of Annexure-9 series to the supplementary affidavit) that death certificate of plaintiff no.1 was also produced before the learned court and kept on record. Undisputedly, the trial proceeded thereafter and evidence of the plaintiffs and defendants were adduced. Defendants evidence was concluded on 24th August 2016. A petition was filed thereafter on 22nd November 2016 by the legal heirs of the deceased plaintiff no.1 before the learned trial court. It also mentioned the death of plaintiff no.1 as on 27th May 2008 and the application made earlier on 6th August 2008 for substitution of his legal heirs I.e. the widow and daughter. A formal prayer for substitution was again made through the instant petition. Learned trial court took note of the aforesaid facts vide order dated 1st December 2016 and also found that no order was passed on the petition dated 6th August 2008 earlier. A formal prayer for substitution was again made through the instant petition. Learned trial court took note of the aforesaid facts vide order dated 1st December 2016 and also found that no order was passed on the petition dated 6th August 2008 earlier. Upon consideration of the plea of the rival parties, by the impugned order dated 9th January 2017 prayer for substitution has been allowed taking note of the application dated 6th August 2008. Learned trial court also was of the view that on account of mistake of fact such substitution has not been carried out in the records earlier. The suit is of the year 2005 itself. 4. Learned counsel for the petitioners has assailed the impugned order inter-alia on the following grounds :- (I) That without formal order of substitution having been made, the suit abated as against plaintiff no.1. (ii) The legal heirs of the plaintiff no.1, being conscious of the abatement of the suit, had also filed an application under Section 5 of the Limitation Act for condonation of delay and setting aside of the abatement. (iii) The trial has proceeded for more than 9 years since the date of death of plaintiff no.1 without his formal substitution. (iv) No order of abatement is required to be recorded, if substitution is not carried out within the time prescribed under Order 22, Rule 3 of the Civil Procedure Code. (v) The substitution of the legal heirs of the plaintiff no.1 after such lapse of time has definitely prejudiced the defendants/petitioners as a valuable right had been created in their favour. (vi) The lapse on the part of the counsel for the legal heirs could not be condoned in such a perfunctory manner. 5. Learned counsel for the petitioners has relied upon the judgment rendered by the Hon'ble Apex Court in the case of Perumon Bhagvathy Devaswom v. Bhargavi Amma, reported in (2008) 8 SCC 321 . He has also relied upon the judgment rendered by the Hon'ble Apex Court in the case of Balwant Singh v. Jagdish Singh & Ors., reported in (2010) 8 SCC page-685 paragraph-16 and 20. He has also relied upon the judgment rendered by the Hon'ble Apex Court in the case of Balwant Singh v. Jagdish Singh & Ors., reported in (2010) 8 SCC page-685 paragraph-16 and 20. Learned counsel for the petitioner submits that once the abatement has taken place in absence of a formal substitution, the learned trial court fell in serious error in allowing substitution without setting aside the abatement after sufficient explanation of the grounds of delay in moving such an application. In any case, the legal heirs of the plaintiff no.1 had never moved for setting aside the abatement of the suit as against plaintiff no.1. 6. Learned counsel for the plaintiff no.2/respondent no.3 herein submits that the learned trial court has only corrected its own omissions which is legally permissible to be done under Section 152 of the CPC. Act of the court should not be held to the prejudice of any of the parties. If the legal heirs of the plaintiff had made an application for substitution within the 90 days' period from the date of death i.e. 27th May 2008 along with the supporting evidence of the death certificate of the plaintiff no.1, the absence of formal order of substitution by the learned trial court should not come to the prejudice of the lawful heirs of the plaintiff no.1 to prosecute the suit. The suit has not yet been finally decided. Therefore, the substitution carried out by the impugned order is perfectly proper and legal in the eye of law. It is further submitted that the defendants have got sufficient opportunity to advance their arguments after the closure of their evidence on 24th August 2016 as would be evident from the subsequent orders including the order dated 26th September 2016. Therefore, the impugned order does not deserve any interference under Article 227 of the Constitution of India. 7. Learned counsel for the petitioners in rejoinder submits that even if it is true that the argument of the defendants/ petitioners herein has been concluded in September 2016, the learned trial court was not right in allowing substitution thereafter. He submits that without proper opportunity the case has been fixed for judgment on 20th April 2017. Interference is therefore required to be made in such circumstances. 8. Considered the submissions of the counsel for the petitioners and the respondent no. He submits that without proper opportunity the case has been fixed for judgment on 20th April 2017. Interference is therefore required to be made in such circumstances. 8. Considered the submissions of the counsel for the petitioners and the respondent no. 2 and the relevant material facts pleaded and referred to herein above. 9. Order 22, Rule 3 which prescribes the procedure in case of death of one of several plaintiffs or of sole plaintiff is quoted hereunder as it is squarely in application to the facts of the case :- "3. Procedure in case of death of one of several plaintiffs or of sole plaintiff- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. 10. It is evident from perusal of Rule 3 Sub-Rule(2) that where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned. From the facts of the present case it appears that the application for substitution was made on 6th August 2008 with categorical statement that the plaintiff no.1 had died on 27th May 2008. The application was supported by the death certificate of the plaintiff no.1 also as it appears from the order dated 4th December 2008. Application dated 6th August 2008 was therefore within the 90 days period permissible to seek substitution. Application for condonation of delay under Section 5 of the Limitation Act appears to have also been made on the same day i.e. 6th August 2008. Application dated 6th August 2008 was therefore within the 90 days period permissible to seek substitution. Application for condonation of delay under Section 5 of the Limitation Act appears to have also been made on the same day i.e. 6th August 2008. It however appears by way of an abundant caution on a mistaken understanding as the petition for substitution was made well within the period of 90 days from the period of death. Though defendants/ petitioners herein have with full vehemence contested the claim of the legal heirs on the date of death by stating that the date of death is 21st April 2008 but no contrary document or evidence has been adduced before the learned trial court or this Court to take a contrary view in the matter. Unfortunately, the formal order of substitution was not passed, may be on account of the application not being pressed by the learned counsel for the legal heirs or due to mistake of the Court. In such circumstances it cannot be held that on death of the plaintiff no.1 on 27th May 2008 the suit abated as the application for substitution was made within 90 days of death on 6th August 2008. The learned court had also proceeded with the trial and none of the parties had brought this fact to the notice of the learned trial court over a long period of time. However, before conclusion of the trial, when the instant fact was brought to the notice of the learned trial court by another application made on 22nd November 2016, substitution has formally been allowed by the impugned order dated 9th January 2017. Learned trial court has also observed that as a mistake of fact formal order of substitution could not be made earlier on the application made on 6th August 2008. 11. It would be proper to rely on the opinion of the Hon'ble Supreme Court in the case of Perumon Bhagvathy Devaswom (supra) also cited by the counsel for petitioner. Paragraph-5 thereof is quoted hereunder :- "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. Paragraph-5 thereof is quoted hereunder :- "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)." 12. The Hon'ble Supreme Court has observed that 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. On some stage, the court has to take note of the abatement and record the closure of the case as having been abated. In the instant case as has been observed herein before since the application for substitution was made well within the 90 days' time it cannot be held that the abatement had occurred due to lack of making an application for substitution within 90 days' of the date of death. 13. Though learned counsel for the plaintiff has relied upon the judgment of Hon'ble Supreme Court in the case of Balwant Singh (supra) but the observation made at paragraphs-16, 20 and 27 thereof do not apply to a fact situation like the present one. The principles discussed and laid down therein are on the question of setting aside of the abatement and the explanation furnished for condonation of delay in moving such an application under Order 22, Rule 9. The principles discussed and laid down therein are on the question of setting aside of the abatement and the explanation furnished for condonation of delay in moving such an application under Order 22, Rule 9. The foundational facts of the present case noted herein above however do not make out a case of abatement of suit as against the plaintiff no.1. The question of recording a formal order of abtatement would also therefore not be relevant to the issue at hand. 14. It would also be proper to refer to the opinion of the Hon'ble Supreme Court rendered in the case of Mangluram Dewangan v. Surendra Singh & Ors., reported in (2011) 12 SCC 773 . The Hon'ble Supreme Court has discussed the provisions of Civil Procedure Code under Order 22 relating to the procedure to be followed on the death of the parties and the consequences that follow. It has been held at paragraph-10 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 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. (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. (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 Order 22, on the ground that he is not the legal representative." 15. The opinion of the Apex Court quoted above also makes it clear that 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. In case a suit abates or where the suit is dismissed, a 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 of Civil Procedure. If sufficient cause is shown, the Court will set aside the abatement or dismissal. If such an 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. Learned Apex Court has also observed in the case of Perumon Bhagvathy Devaswom (supra) that while provisions relating to the abatement of the Suit has to be strictly construed but prayer for setting aside an abatement has to be considered in a liberal manner. At the cost of repetition it is once again stated that the facts of the instant case do not show that the suit had abated after death of plaintiff no.1 for the reasons recorded herein above. 16. It would also not be out of place to observe here that a mistake of Court should not act to the prejudice of either of the parties. This principle is enshrined in the Legal Maxim - "Actus Curiae Neminem Gravabit". Rules of procedure are hand maiden of justice and should not come into the way of courts in deciding the issue on merits. 17. Having held as above, it appeals to the Court that the learned trial court should grant further opportunity to the parties to conclude their arguments in the interest of justice. Apparently on account of the intervening developments relating to the substitution of the legal heirs of plaintiff no.1 defendants may have been distracted from concluding its argument in the pending trial. The learned trial court would grant the parties further two weeks time from the next date to conclude their arguments. This Court on account of the reasons discussed herein above and the discussion made is however not satisfied that any jurisdictional error or infirmity in law has been committed by the learned trial court which requires interference under Article 227 of the Constitution of India. Writ petition is accordingly disposed of with the aforesaid observation.