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2022 DIGILAW 1935 (ALL)

Aslam Qadeer v. Nayyar Jahan Raza

2022-12-07

SARAL SRIVASTAVA

body2022
JUDGMENT : 1. Heard Sri Kumar Anish, learned counsel for the revisionist. 2. The present revision has been filed by Aslam Qadeer, defendant no.6, in Original Suit No.1003 of 2015 instituted by one Fatima Imran seeking a decree of specific performance of the contract against respondent nos.1 to 3 (defendant nos.1 to 3 in original suit) with further prayer that respondent nos.1 to 3 along with respondent nos.4 to 7 (defendant nos.5 to 8 in original suit) be directed to execute the sale deed. 3. During the pendency of the suit, Nayyar Jahan Raza (defendant no.1) died on 30.01.2021. After the death of Nayyar Jahan Raza, plaintiff/respondent no.8 filed substitution application 144A1/1 under Order 22 Rule 4 read with Section 151 of C.P.C. for substituting the legal heirs of Late Nayyar Jahan Raza. 4. During the pendency of substitution application 144A1/1, Irfan Khan one of the heirs of the Late Nayyar Jahan Raza also died on 30.05.2021. After the death of Ifran Khan, plaintiff/respondent no.8 filed an amendment application 146Ga seeking amendment in the substitution application 144A1/1 which was allowed by the trial court vide order dated 20.04.2022. 5. The order dated 20.04.2022 was challenged by the revisionist through Civil Revision No.65 of 2022 which was allowed by this Court vide judgement dated 27.06.2022 with liberty to the plaintiff/respondent no.8 to file a separate substitution application to substitute the heirs of Irfan Khan. 6. Thereafter, plaintiff/respondent no.8 again filed amendment application 175A, to which revisionist filed an objection stating therein that the said application is not maintainable as plaintiff/respondent no.8 was supposed to file separate substitution application because of the order of this Court dated 27.06.2022. 7. On the objection of the revisionist, application 175A was rejected by the trial court vide order dated 02.09.2022 with liberty to the plaintiff/respondent no.8 to file a fresh substitution application under Order 22 Rule 4 of C.P.C. 8. The plaintiff/respondent no.8 after the order of the trial court dated 02.09.2022 filed fresh substitution application 179A under Order 22 Rule 4 of C.P.C. for substituting the heirs of Late Irfan Khan. 9. The application 179A was objected to by the revisionist by filing an objection that application 179A under Order 22 Rule 4 of C.P.C. was not maintainable and is liable to be rejected as no application condoning the delay in filing the substitution application 179A has been filed. 9. The application 179A was objected to by the revisionist by filing an objection that application 179A under Order 22 Rule 4 of C.P.C. was not maintainable and is liable to be rejected as no application condoning the delay in filing the substitution application 179A has been filed. It is also stated that even otherwise this Court vide order dated 27.06.2022 directed the plaintiff/respondent no.8 to file a separate substitution application for substituting the heirs of late Irfan Khan within six weeks, and since six weeks period has expired and no delay condonation application has been filed, therefore, the said application was not maintainable and thus, the suit is abated against late Irfan Khan. 10. The trial court vide order dated 3.10.2022 allowed both applications i.e. application 179A and application 144A. So far as application 144A1/1 regarding the substitution of heirs of Late Nayyar Jahan Raza is concerned, the revisionist has no grievance. In the present revision, the revisionist has assailed the order dated 03.10.2022 to the extent it allows application 179A of the plaintiff/respondent no.8 to substitute the heirs of Late Irfan Khan. 11. The submission has been advanced by the learned counsel for the revisionist only with respect to the order of the trial court allowing the application 179A. It is contended by the learned counsel for the revisionist that the trial court has committed jurisdictional error in allowing the said application inasmuch as the application 179A was not maintainable as the limitation for filing the substitution application to implead the heirs of Late Irfan Khan has expired and no application for condoning the delay has been filed with the substitution application. Learned counsel for the revisionist has further urged that as the application to implead the heirs of the Late Irfan Khan has not been filed within time, therefore, on the expiry of the period of limitation for filing a substitution application, the suit against Irfan Khan is abated and thus, order of the trial court so far as it allows the application 179A is liable to be set aside. 12. I have considered the submissions advanced by the learned counsel for the revisionist and perused the record. 13. 12. I have considered the submissions advanced by the learned counsel for the revisionist and perused the record. 13. The fact as emerges from the record are that Original Suit No.1003 of 2015 has been instituted by the plaintiff/respondent no.8 for a decree of specific performance of the contract against revisionist and respondent nos.1 to 7 (defendant nos.1 to 5 & 7 to 8). During the pendency of the aforesaid suit, Nayyar Jahan Raza (defendant no.1) had died on 30.01.2021, and plaintiff/respondent no.8 filed an application 144A1/1 for substituting the heirs of Late Nayyar Jahan Raza. 14. Before the said application could be allowed, Irfan Khan one of the heirs of the Late Nayyar Jahan Raza died on 30.05.2021. After the death of Irfan Khan, plaintiff/respondent no.8 filed amendment application 146A in substitution application 144A1/1 which was allowed by the trial court vide order dated 20.04.2022. The said order was set aside by this Court vide judgement dated 27.06.2022 passed in Civil Revision No.65 of 2022 with liberty to the plaintiff/respondent no.8 to file a fresh substitution application to substitute the heirs of Late Irfan Khan. 15. After the order dated 27.06.2022 passed by this Court, plaintiff/respondent no.8 submitted an application 175A for amendment in the plaint which was again contested by the revisionist. The trial court vide order dated 02.09.2022 rejected the application of the plaintiff/respondent for amending the plaint. Thereafter, plaintiff/respondent no.8 filed substitution application 179A which was allowed by the trial court vide order dated 03.10.2022. 16. In such factual backdrop, the question which arises for consideration in the present revision as to whether plaintiff/respondent no.8 should have filed a delay condonation application along with the substitution application for condoning the delay in filing the substitution application 179A and further, an application to set aside the abatement should also have been made by the plaintiff/respondent no.8 as the suit in respect of Irfan Khan was abated for not filing the substitution application within 90 days period from the date of death of Irfan Khan. 17. Before proceeding to deal with the contention advanced by the learned counsel for the revisionist, it would be apt to reproduce Order 22 Rule 4 (1) & (3) of C.P.C relevant in the present dispute:- "4. 17. Before proceeding to deal with the contention advanced by the learned counsel for the revisionist, it would be apt to reproduce Order 22 Rule 4 (1) & (3) of C.P.C relevant in the present dispute:- "4. Procedure in case of death of one of several defendants or of sole defendant- (1) Where one of 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)... (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" 18. A reading of Order 22 Rule 4 (1) of C.P.C. suggests that when the defendant dies and the right to sue survives, the Court on an application made on that behalf shall cause the legal representative of the defendant to be made a party and shall proceed with the suit. Order 22 Rule 4(3) of C.P.C. provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. 19. Now, in considering the said issue, the first question that crops up is when a person is said to be a defendant in a suit and when the limitation for filing the substitution application shall begin. 20. The word 'defendant' in Advanced Law Lexicon 6th Edition Volume 2 is defined as under :- “(i). The party sued in an action. One who is sued (or prosecuted). The title “defendant” is more generally applied to a party in civil than in a criminal suit or proceeding. (ii). The party against whom a charge or complaint is brought.” 21. The word 'defendant' in Black's Law Dictionary Ninth Edition is defined as under :- “A person sued in a civil proceeding or accused in a criminal proceeding.” 22. The title “defendant” is more generally applied to a party in civil than in a criminal suit or proceeding. (ii). The party against whom a charge or complaint is brought.” 21. The word 'defendant' in Black's Law Dictionary Ninth Edition is defined as under :- “A person sued in a civil proceeding or accused in a criminal proceeding.” 22. Thus, from the aforesaid dictionary meaning of the word 'defendant', it can be culled out that a defendant is a person who has been impleaded in a suit and against whom the plaintiff has a cause of action and based on the said cause of action, the plaintiff is entitled to relief as claimed in the suit against said person. In other words, the 'defendant' means a person against whom any claim or charge is brought that he wishes to refute. Thus, a person would become a 'defendant' in any suit or proceeding only when he has been impleaded and has been called upon to refute the pleading of the suit or proceeding against him. 23. Now, to ascertain when Late Irfan Khan became the defendant in the suit and after his death, when provision of Order 22 Rule 4 of C.P.C. is attracted to enable the heirs of the Late Irfan Khan to file a substitution application, the facts of the case needs to be examined. 24. In the instant case, it is not in dispute that application 144A1/1 filed by the plaintiff/respondent no.8 was not decided on the date of death of Irfan Khan who had died during the pendency of the substitution application. In the meantime, plaintiff/respondent no.8 filed two misconceived applications which were rejected by the court. Thereafter, the plaintiff/respondent no.8 filed substitution application 179A. 25. The substitution application 144A1/1 was not allowed, when the application 179A was filed, therefore, the suit could not have abated against Irfan Khan as he did not become the defendant in the suit for want of any order on the substitution application 144A1/1. Late Irfan Khan shall become defendant only after the substitution application 144A1/1 was allowed by the trial court and would become eligible to deny or refute the claim of the plaintiff/respondent no.8 after his substitution application was allowed and he has been substituted. Late Irfan Khan shall become defendant only after the substitution application 144A1/1 was allowed by the trial court and would become eligible to deny or refute the claim of the plaintiff/respondent no.8 after his substitution application was allowed and he has been substituted. Thus, he will become the defendant for the purpose of Order 22 Rule 4 of C.P.C. on the date his substitution application is allowed by the trial court. Given the language used under Order 22 Rule 4 (1) (3) of C.P.C., the application has to be made within the time prescribed in law for substituting the heirs of the defendant and the suit would abate only when the said application has not been filed within the time prescribed. 26. In the instant case, the application to substitute Irfan Khan was pending and was not allowed and till it was allowed, there was no question of substituting the heirs of the Late Irfan Khan. Thus, the limitation to substitute the heirs of the Late Irfan Khan would start running from 03.10.2022 when application 144A1/1 regarding the substitution of heirs of the Late Nayyar Jahan Raza is allowed by the trial court. It is not in dispute that on the date the substitution application 144A for substituting the heirs of Late Nayyar Jahan Raza was allowed, the application 179A to substitute the heirs of Late Irfan Khan was filed and pending before the court. Thus, this Court believes that there was no delay in filing the substitution application 179A to substitute the heirs of Irfan Khan, nor the suit could have abated against Irfan Khan since the substitution application 144A1/1 was not decided by the court below. 27. Thus, for the reasons given above, the civil revision lacks merit and is accordingly, dismissed with no order as to costs.