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2018 DIGILAW 516 (ORI)

PRAMODA DAS v. SAROJ KANTA MISRA

2018-05-05

D.P.CHOUDHURY

body2018
JUDGMENT : D.P. Choudhury, J. - This applications have been purportedly filed by the appellant for substitution of respondent no.2, setting aside abatement and for condonation of delay in filing the substitution application. 2. Heard Mr.B.Routray, learned Senior Advocate for the appellants and Mr.R.K.Rath, learned Senior Advocate for the respondent no.1. 3. Mr.Routray, learned Senior Advocate for the appellants submitted that respondent no.2 (Laxmidhar Moharathi) died on 8.1.1996 and his death was not within the knowledge of the present appellant no.2, who is the legal heir of appellant no.1. According to him, after the death of appellant no.1 on 4.1.2015, the present appellant stepped in as sole appellant. 4. Mr.Routray, learned counsel for the appellants further submitted that while the present appellant had gone to the village to collect certain document from respondent no.2 from whom the original plaintiff (present appellant no.1 is father) has allegedly purchased the suit property, she came to know for the first time on 10.4.2018 that respondent no.2 has died on 8.1.1996 leaving behind his wife, eldest son and other LRs, in the meantime, the widow has also expired. Since the appellant could not able to collect the detail information in spite of the best efforts made by her, only came to know about the death on 10.04.2018, she filed the present application for substitution. Further, it has been submitted by learned counsel for the appellants that respondent no.2 has not appeared in spite of notice issued in the second appeal. As per Order 22 Rule 10-A of the Civil Procedure Code (hereinafter called as "the Code"), the contesting respondent is required to inform about the death of the parties but the contesting respondent did not inform the Court. So, the in the present circumstances and the fact into consideration the fact that the appellant is a woman, the delay may be condoned, set aside the abatement against respondent no.2 and allow the substitution by substituting the proposed LRs in place of respondent no.2 for effective adjudication of the second appeal. 5. Mr.R.K.Rath, learned Senior Advocate for the respondent no.1 (Saroj Kanta Mishra), relying on the counter affidavit, submitted that the present appellant are the legal heirs of the original plaintiff Alekh Chandra Das, who has filed Original Suit No.9 of 1975 (I) before the learned Sub-ordinate Judge, Bhuabneswar against the present respondent no.1-defendant no.1. 5. Mr.R.K.Rath, learned Senior Advocate for the respondent no.1 (Saroj Kanta Mishra), relying on the counter affidavit, submitted that the present appellant are the legal heirs of the original plaintiff Alekh Chandra Das, who has filed Original Suit No.9 of 1975 (I) before the learned Sub-ordinate Judge, Bhuabneswar against the present respondent no.1-defendant no.1. As per the case of the plaintiff, the suit land was purchased by him from the present deceased-respondent no.2 (Laxmidhar Moharathi) and before the trial Court, the deceased-defendant no.2 has categorically taken a plea that since the plaintiff has not sought any relief against him, he does not have any interest in the suit property as the defendant no.2 has already transferred the ownership and possession of the suit property to the plaintiff-Alekha Charan Das. Not only this but also defendant no.2 also deposed the in favour of the plaintiff. The original suit was dismissed and against that Title Appeal No.2/8/4 of 1981/80/78 was filed before the First Appellate Court, i.e, learned Additional District Judge, Bhubaneswar, which was also dismissed and against the order passed by the first appellate Court, Second Appeal No.160 of 1981 has been filed before this Court and this Court, vide order dated 6.12.1988, had remanded the matter to the first appellate Court for fresh disposal. Before the first appellate Court, the said defendant no.2 was set ex-parte as he did not appear. That appeal was again dismissed against which the present second appeal has been filed where the defendant no.2 was described as proforma respondent. 6. Mr.R.K.Rath, learned counsel for the respondent no.1 strenuously argued that when the defendant no.2 has been sailing in the same boat of the plaintiff and he has been set ex-parte before the first appellate Court against whose order, the present second appeal has been filed and the respondent no.2 has been arrayed as proforma respondent, he is not a necessary party before whom, the appeal should be disposed of. Apart from this, he submitted that the appeal has already been heard for three dates and in the midst of the hearing of the second appeal, present applications have been filed with ulterior motive to cause delay in disposal of the second appeal, which is of the year 1989. 7. Apart from this, he submitted that the appeal has already been heard for three dates and in the midst of the hearing of the second appeal, present applications have been filed with ulterior motive to cause delay in disposal of the second appeal, which is of the year 1989. 7. Mr.Rath, learned counsel for the respondent no.1 further submitted that it is fallacious to note that the respondent no.2 died on 8.1.96, which is twenty-two years old. It is not known why the original appellant has not sought for substitution of respondent no.2 till 2015 when she expired and further it is not known why the present LR of the appellant no.1 had remained silent till date. The petition for condonation of delay also does not describe why the appellant was not serious about ascertaining facts for substitution till 10.04.2018. On the other hand, he submitted that the explanation for condoning the delay is not sufficient to condone the same, rather it is a dilatory tactics for causing the delay in disposal of the second appeal. Since the delay has not been condoned, the appeal against respondent no.2 abated but abatement of the appeal against respondent no.2 would not affect in the peculiar facts and circumstances that he is not a necessary party and his substitution can be exempted. In support of his submissions, he relied upon the decisions of the Hon'ble Supreme Court in the cases of Mangal Singh and others -V- Smt. Rattno (dead) by her legal representatives and another, (1967) AIR SC 1786, Hira Lal and another - V Gajjan and others, (1990) AIR SC 723 and of this Court in the cases of Dhuma Khan -V- Commissioner of Consolidation and others, (1997) 1 OrissaLR 222 and Danei Sahoo -V- Jagannath Sahu and others, (1986) 2 OrissaLR 272. 8. Considered the submission of the learned counsel for the respective parties. It is admitted fact that the original plaintiff has alleged in the suit that he has purchased the suit land from defendant-respondent no.2. It is not in dispute that the defendant no.2 is a proforma respondent in view of the fact that he has been examined as P.W.3 in O.S. No.9 of 1975 admitting the fact that he has sold the suit land to plaintiff on payment of due consideration and handed over possession of the same to the original plaintiff-Alekha Ch. Das. It is not in dispute that the defendant no.2 is a proforma respondent in view of the fact that he has been examined as P.W.3 in O.S. No.9 of 1975 admitting the fact that he has sold the suit land to plaintiff on payment of due consideration and handed over possession of the same to the original plaintiff-Alekha Ch. Das. In course of hearing, Mr.Routray, learned Senior Advocate for the appellant admitted that the defendant no.2 has also been set ex-parte before the first appellate Court. Thus, it is clear that the present respondent was a proforma respondent or defendant. Moreover, he has already been examined in the original suit for the plaintiff which reinforces the fact that the defendant no.2 is not a necessary party but a proforma party. Order 22 Rule 4(4) of the Code is placed in the following manner for better appreciation: "(4)The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and 9 contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." 9. In view of the aforesaid provisions, it appears that since in the present case, the respondent no.2 has already transferred the ownership and possession of the suit land already to the original plaintiff as per his evidence and pleading and he had not contested against the original plaintiff, there is no necessity to substitute him in case of his death. Not only this but also he has been set ex-parte before the first appellate Court against whose order the present second appeal has been filed. So, according to Order 22 Rule 4(4), respondent no.2 is not required to be substituted. 10. The Hon'ble Supreme Court, in the case of Mangal Singh and others, at paragraph-3, have observed in the following manner: "3..........further, supported the claim of the plaintiff by pleading that there had been no karewa marriage between them. The suit was dismissed by the trial court. It was decreed by the first appellate Court only against defendants 1 to 3, treating Ishar Singh as a profoma defendant. The suit was dismissed by the trial court. It was decreed by the first appellate Court only against defendants 1 to 3, treating Ishar Singh as a profoma defendant. In these circumstances, it is obvious that, when the case came up before the High Court, the dispute was confined between Smt. Rattno, legal representative of the original plaintiff on the one side, and defendants 1 to 3 on the other. Defendants 1 to 3 sought vacation of the decree for possession which had been granted against them in favour of Smt. Rattno. lshar Singh, against whom the suit had not been decreed at all, thus became an unnecessary party......." With due respect to the aforesaid decision, it is clear that where the party has become a proforma paty and not a necessary party, it is not necessary to substitute such party and even if such party is abated, the entire appeal will not abate because no necessity of substituting such proforma party. 11. In the instant case, since the present respondent no.2 has already become proforma party and also set ex-parte in the first appellate Court, it is reiterated that it is not necessary to substitute that respondent no.2 and even if a suit would abate against him, it will not affect the merit of the appeal. 12. Moreover, in the instant case, the explanation of the appellant to substitute respondent no.2 appears to be not sufficient cause long after 22 years. The petition is filed to substitute during midst of the hearing of the second appeal. When the mother of the present appellant, during her life time, did not think it proper to substitute respondent no.2 by taking steps and the present respondent no.2 only died on 10.4.2018 after the death of her mother in 2015, the action of the present appellant is found negligence on her part to have desire to substitute respondent no.2. 13. In the case of Union of India -V- Ram Charan (deceased) through his Legal Representatives, (1964) AIR SC 215, the Hon'bel Supreme Court has observed that limitation application to set aside the abatement of a suit or appeal do start from the date of death of the deceased respondent. The first schedule to Article 171 of the Limitation Act provides that it does not provide limitation to start from the date of appellant's knowledge thereof. 14. The first schedule to Article 171 of the Limitation Act provides that it does not provide limitation to start from the date of appellant's knowledge thereof. 14. With due respect to the aforesaid decision, it appears that the party desiring to substitute the deceased either appellant or defendant, has to explain the delay right from the date of death of the deceased-defendant. So, it is not a question of knowledge but the limitation to commence from the date of death. Since the delay for twenty-two years has not been explained properly, the petition for condonation of delay stands rejected. Accordingly, the application for setting aside abatement of respondent no.2 is rejected. As observed above, the substitution is unnecessary. Thus, the petition for substitution, being devoid of merit, stands rejected. Final Result : Dismissed