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2018 DIGILAW 733 (RAJ)

Sirmal v. Nazir Hussain

2018-03-12

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT AND ORDER : Pushpendra Singh Bhati, J. Petitioner has preferred this writ petition with the following prayer :- "1. That the impugned order dated 11.09.2017 passed by learned Civil Judge, Siwana, District Barmer dismissing application under Order 22 Rule 4 of CPC, 1908 may kindly be quashed and set aside. 2. Any other appropriate order, which deemed fit in the facts and circumstances of the case may kindly be passed in favour of the petitioner." 2. Learned counsel for the petitioner states that a civil suit was filed by Late Shri Sirmal titles as Sirmal Vs. Nazir Hussain & Ors. under Rent Control Act, 1950 for recovery of possession, compensation and recovery of due rent against Shri Nazir Hussain and Smt. Rehmat on 23.03.1996. The proceedings were going on, during which Shri Nazir Hussain expired on 20.02.2011. However, an application under Order 22 Rule 4 along with Section 5 of the Limitation Act was preferred before the learned trial court seeking the prayer of taking the LR's on record and also setting aside the abatement. 3. Learned counsel for the petitioner states that though the application was for under Rule 22 Rule 4 of the CPC but the prayer in fact reflected the terms of Order 22 Rule 9. Learned counsel for the petitioner further points out that the impugned order has been passed by the learned court below dismissing the application under Order 22 Rule 4 of the CPC on the ground that the abatement had already occurred and therefore, the setting aside of abatement was not possible in the application. 3. Learned counsel for the petitioner has relied upon the judgment passed by Hon'ble Apex Court in the matter of Ramdas Shivram Sattur Vs. Rameshchandera Popatlal Shah & Ors., (2007) 4 CivCC 155 (S.C.), the relevant portion of this judgment, reads as under :- "12. In Mithailal Dalsangar Singh ands Ors. v. Annabi Devram Kini and Ors, (2003) 10 SCC 691 , inter alia, it was observed as follows : 8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. 9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of sufficient cause within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. 10. 10. In the present case, the learned trial Judge found sufficient cause for condonation of delay in moving the application and such finding having been reasonably arrived at and based on the material available, was not open for interference by the Division Bench. In fact, the Division Bench has not even reversed that finding; rather the Division Bench has proceeded on the reasoning that the suit filed by three plaintiffs having abated in its entirety by reason of the death of one of the plaintiffs, and then the fact that no prayer was made by the two surviving plaintiffs as also by the legal representatives of the deceased plaintiff for setting aside of the abatement in its entirety, the suit could not have been revived. In our opinion, such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirely even though there was no specific prayer made and no specific order of the court passed in that behalf." 4. Learned counsel for the petitioner has pointed out that Hon'ble Apex Court has laid down the law that if there was a prayer for bringing the legal representatives on record and the same was allowed, it would have the effect of setting aside the abatement as the relief of setting aside the abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. The Hon'ble Apex Court has held that too technical or pedantic an approach in these cases was not called for. 5. The Hon'ble Apex Court has held that too technical or pedantic an approach in these cases was not called for. 5. Learned counsel for the petitioner has relied upon the judgment passed by Hon'ble Apex Court in the matter of Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) By Lrs. & Ors., (2008) 4 CivCC 503 (S.C.), the relevant portion of this judgment, reads as under :- "11. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the order-sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be indication of negligence or want of diligence. 13. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement) : (i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed; (ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim." 6. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim." 6. Learned counsel for the petitioner has thus, made out a case that all the order-sheets in the relevant period are on record as Annexure-4 and Annexure-5 and it is clear that the obligation was upon the respondents to have informed the Court in consonance with the Order 22 Rule 10 (A) about the death of his party which has not been complied. 7. Learned counsel for the respondent states that Court had reached a conclusion that the petitioner had the knowledge of the death but inspite of the same, he had not sought the revocation of the abatement of the suit under Order 22 Rule 9. 8. Learned counsel for the petitioner and respondent have drawn attention to the provisions of Order 22 Rule 9 of CPC, which reads as follows :- "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). Explanation: Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order." 9. Learned counsel for the petitioner and respondent have also drawn attention to the provisions of Order 22 Rule 10(A) of CPC, which reads as follows :- "10A. Learned counsel for the petitioner and respondent have also drawn attention to the provisions of Order 22 Rule 10(A) of CPC, which reads as follows :- "10A. Duty of pleader to communicate to court death of a party.- Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the court about it, and the court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist. " 10. Learned counsel for the petitioner and respondent have also drawn attention to the provisions of Order 22 Rule 4 of CPC, which reads as follows :- "4. Procedure in case of death of one of several defendants or of sole defendant.- (1) Where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (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 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. (5) Where, (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified there for in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved." 11. After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that the precedent law in question will apply as the Hon'ble Apex court has said that the application under Order 22 Rule 4 for taking the LR's on record would deem to be include the prayer for Order 22 Rule 9 for setting aside the abatement. Further, this Court finds that the mandate of Order 22 Rule 10 (A) required the respondents counsel to inform the Court about the death of the party whereas the order-sheet of the interregnum period clearly reflect that no such information regarding the death of the party was furnished by the counsel concerned. This Court also finds that the second precedent law also applies in the present case as the Court has to take a lenient view in the delay being caused for taking the LR's on record and the application under Section 5 of the Limitation Act was well within the parameters of condoning the delay concerned. 12. In light of the aforesaid observations, the present writ petition is allowed and the impugned order dated 11.09.2017 is quashed and set aside. Learned Court below is directed to take the legal representative's on record and proceed strictly in accordance with law while treating the abatement to have been set aside.