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Madhya Pradesh High Court · body

2019 DIGILAW 517 (MP)

Manju (Smt. ) v. Morari Lal Kirar

2019-07-15

G.S.AHLUWALIA

body2019
JUDGMENT 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 9.8.2018 passed by First Civil Judge, Class-II, Gwalior in Civil Suit No. 71-A/2015 by which the application filed by the petitioner under Order 22 rule 10 CPC along with the application under section 5 of the Indian Limitation Act has been dismissed. 2. The necessary facts for disposal of the present petition in short are that the respondents No. 3 to 7 as well as Jaswant Singh had filed a suit for declaration of title and permanent injunction. Jaswant Singh expired on 12.2.2017 and accordingly, an application under Order 22 rule 3 of CPC was filed on 27.6.2017 for bringing his legal representatives on record and an application under section 5 of the Indian Limitation Act was filed in support of the application under Order 22 rule 3 of CPC. The said applications were decided by the Trial Court by order dated 9.1.2018 on the ground that since the application for bringing the Legal Representatives of the deceased plaintiff No. 6 Jaswant Singh was not filed with the period of limitation, therefore, by force of law, the suit filed by Jaswant Singh has already stood abated and accordingly, both the application were rejected, with the liberty to the petitioners to file an application under Order 22 rule 9 of CPC. It appears that thereafter, the petitioners filed an application under Order 22 rule 10 of CPC along with an application under section 5 of the Indian Limitation Act. The trial Court by the impugned order dated 9.8.2018 has rejected the application filed under section 5 of the Indian Limitation Act and has consequently rejected the application filed under Order 22 rule 10 of CPC after considering the same under Order 22 rule 9 of CPC. 3. Challenging the order passed by the trial Court, it is submitted by the counsel for the petitioners that the trial Court should have adopted a lenient view while dealing with the applications and thus, it has committed a material illegality by rejecting the application filed under section 5 of Limitation Act and consequently, rejecting the application under Order 22 rule 9 of CPC. 4. 4. Per contra, it is submitted by the counsel for the respondents that initially the petitioners did not file any application under Order 22 rule 9 of CPC and thereafter, in spite of specific direction given by the trial Court, the application was filed under incorrect provision of law and no sufficient reason has been assigned for condonation of delay. 5. Heard the learned counsel for the parties. 6. This case depicts a very sorry state of affairs. It is well-established principle of law that the parties must not suffer because of fault of the lawyer but it appears that this proposition of law had given a blanket liberty to the lawyers to completely ignore the provisions of law. It is also expected that the lawyer must go through the provisions of law before accepting any brief. The lawyers are not expected to act in a rash and negligent manner and thereafter, to take a defence that his party must not suffer because of his fault. 7. In the present case, after the plaintiff No. 6 Jaswant Singh had expired, an application for bringing his legal representatives on record was not filed within the period of limitation of 90 days. 8. It is well-established principle of law that if the application for substitution is not filed within a period of 90 days, then the suit or the appeal shall automatically stand abated by force of law as per provisions of Order 22 rule 3(2) CPC and in that situation, a litigant is required to file an application for setting aside the abatement within a period of 60 days and even if the application for setting aside the abatement under Order 22 rule 9 of CPC is not filed within a period of 60 days, then the application under section 5 of the Indian Limitation Act has to be filed for condonation of delay in filing the application under Order 22 rule 9 of CPC. Without going through the provisions of law, it appears that the counsel for the petitioners, in a very rash and negligent manner, filed an application under Order 22 rule 3 CPC along with an application under section 5 of the Indian Limitation Act on 27.6.2017. Without going through the provisions of law, it appears that the counsel for the petitioners, in a very rash and negligent manner, filed an application under Order 22 rule 3 CPC along with an application under section 5 of the Indian Limitation Act on 27.6.2017. The application under section 5 of the Indian Limitation are never filed for condonation of delay in filing the application under Order 22 rule 3 of CPC because as per the provisions of Order 22 rule 3(2) of CPC, the suit or the appeal would automatically stand abated. Although the Trial Court may have considered the application filed by the petitioners under section 5 of the Indian Limitation Act as an application under Order 22 rule 9 of CPC but the trial Court rejected the application by order dated 9.1.2018 by making a specific observation that the petitioners are free to file an application under Order 22 rule 9 of CPC. In spite of the fact that the trial Court had specifically pointed out that the suit filed by the plaintiff No. 6 Jaswant Singh has already stood abated by force of law and abatement can be set aside on an application filed under Order 22 rule 9 of CPC, but still for the reasons best known to the petitioners, they did not file an application under Order 22 rule 9 of CPC but filed an application under Order 22 rule 10 of CPC, whereas it is clear that not only the counsel for the petitioners had ignored the order passed by the trial Court but has also not cared to look into the provisions of law. Further, in the application under section 5 of the Indian Limitation Act filed in support of the application filed under Order 22 rule 10 of CPC (should have been filed under Order 22 rule 9 of CPC) no plausible reason has been assigned by the petitioners. It is merely mentioned in the application for condonation of delay that the petitioners No. 2 and 3 are students aged about 23 yeas and 21 years respectively and as the petitioner No. 1 had lost her husband, therefore, she was not in a position to come out from her house. The trial Court has held that the reasons assigned by the petitioners for condonation of delay are not sufficient to condone the delay. 9. The trial Court has held that the reasons assigned by the petitioners for condonation of delay are not sufficient to condone the delay. 9. In the present case, the plaintiff No. 6 Jaswant Singh is reported to be dead on 12.2.2017 and accordingly, an application under Order 22 rule 3 of CPC should have been filed within a period of 90 days. Since the same was not filed, therefore, in view of Order 22 rule 3(2) of CPC, the suit filed by the plaintiff No. 6 Jaswant Singh had stood abated. Since the first application under Order 22 rule 3 of CPC was filed on 27.6.2017, therefore, this Court is of the considered opinion that in fact, the counsel was informed by the petitioners about the death of the plaintiff No. 6 Jaswant Singh, but because of negligence of the counsel, no application under Order 22 rule 9 of CPC was filed and had the petitioners filed an application under Order 22 rule 9 of CPC on 27.6.2017, then the same would have been within the period of limitation and there was no occasion for filing an application under section 5 of the Limitation Act. Further, the application filed under Order 22 rule 3 of CPC along with an application under section 5 of the Indian Limitation Act was rejected by the Trial Court by order dated 9.1.2018 with liberty to the petitioners to file an application under Order 22 rule 9 of CPC and subsequently, the application under Order 22 rule 10 of CPC was filed without there being any application under Order 22 rule 3 of CPC. Once the application under Order 22 rule 3 of CPC was already rejected by the trial Court, then the petitioners should have also filed a separate application under Order 22 rule 3 of CPC along with an application under Order 22 rule 9 of CPC. However, as the names of legal representatives of the deceased plaintiff No. 6 Jaswant Singh are also mentioned in the application under Order 22 rule 9 of CPC, therefore, the said application can be said to be a composite application under Order 22 rule 3 of CPC and Order 22 rule 9 of CPC. 10. Consequently, the application for condonation of delay filed by the petitioners is hereby allowed. 10. Consequently, the application for condonation of delay filed by the petitioners is hereby allowed. As a result thereof, the application filed under Order 22 rule 10 of CPC (considered by the trial Court as Order 22 rule 9 of CPC) is hereby allowed. The abatement of suit filed by plaintiff No. 6 Jaswant Singh is hereby set aside on payment of cost of Rs. 5,000/- payable to respondents within a period of one month from today. 11. Consequently, the petitioners who claim themselves to be legal representatives of the plaintiff No. 6 Jaswant Singh are permitted to be brought on record. Let necessary amendment in the plaint be carried out by the plaintiffs within the period so fixed by the trial Court. 12. The order dated 9.8.2018 passed by First Civil Judge, Class-II, Gwalior in Civil Suit No. 71-A/2015 is hereby set aside. 13. The further proceedings of the trial Court was stayed by this Court by order dated 4.5.2019. The interim order is hereby vacated. Petition succeeds and is hereby allowed.