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2023 DIGILAW 654 (CHH)

Champa Bai S/o Salikram v. Bholaram S/o Salikram

2023-12-01

RAKESH MOHAN PANDEY

body2023
JUDGMENT : 1. The appellant/plaintiff has challenged the order passed by the learned Additional District Judge, Link Court Kurud, District Dhamtari in Civil Appeal No. 89A of 2016 dated 13.11.2018 whereby the application moved by the plaintiff under Order 22 Rule 9 (2) of CPC along with an application under Section 5 of the Limitation Act was rejected and the suit stood abated for defendant No.3 namely Rajbantin Bai. 2. The facts of the present case are that a civil suit was filed by the plaintiff for declaration of title and permanent injunction with regard to suit property mentioned in Schedule-A and Schedule-B, which was dismissed by the learned trial Court vide judgment dated 18.09.2015. During the pendency of the suit, defendant No.3 namely Rajbantin expired on 13.09.2015 when the matter was closed for judgment by the learned trial Court however the judgment was not passed. A regular civil appeal was preferred by the plaintiff before the learned Additional District Judge, Kurud and the summons was issued to the defendants/respondents. After going through the service report, the plaintiff came to know that defendant No.3 Rajbantin Bai had expired prior to judgment on 13.09.2015 therefore he moved an application under Order 22 Rule 4 of CPC for bringing her legal representatives on record on 14.10.2016. The application was rejected by the Court below vide order dated 15.05.2017 on the ground that the application for substitution of legal representative of Smt. Rajbantin Bai was not supported with an application for setting aside abatement and an application for condonation of delay as the application under Order 22 Rule 4 of CPC was not moved within the prescribed limitation period. Learned Appellate Court also observed that the appellant/plaintiff may move an application under Order 22 Rule 9(2) of CPC for setting aside abatement. The appellant moved an application under Order 22 Rule 9 of CPC along with an application under Section 5 of the Limitation Act for condonation of delay on 19.06.2017. The defendants filed a reply to that application. Learned Appellate Court vide order dated 13.11.2018 rejected the application moved by the plaintiff under Order 22 Rule 9(2) of CPC on the ground that no steps were taken to substitute legal representatives of defendant No.3 - Rajbantin Bai. The defendants filed a reply to that application. Learned Appellate Court vide order dated 13.11.2018 rejected the application moved by the plaintiff under Order 22 Rule 9(2) of CPC on the ground that no steps were taken to substitute legal representatives of defendant No.3 - Rajbantin Bai. It is also observed that the application under Section 5 of the Limitation Act in support of the application under Order 22 Rule 9(2) of CPC is not tenable. Thereafter, the case was fixed for final arguments. 3. Learned counsel for the appellant would submit that the learned Court below misconstrued the provisions of Order 22 Rule 4 of CPC and Order 22 Rule 9 of CPC. He would further submit that vide order dated 15.05.2017 the learned Appellate Court had observed that the plaintiff has only the option to move an application under Order 22 Rule 9(2) of CPC for setting aside the abatement and application moved under Order 22 Rule 4 of CPC and an application under Section 5 of Limitation Act were rejected. He would also submit that when the application under Order 22 Rule 9(2) of CPC was moved along with an application for condonation of delay, the same was rejected contrary to the provisions of Order 22 Rule 9 of CPC. He would further contend that according to provisions of Order 22 Rule 9(3) of CPC, the provisions of Section 5 of the Limitation Act shall apply to the application under Order 22 Rule 9(2) of CPC. In support of his contention, he has placed reliance on the judgment passed by the High Court of Madhya Pradesh in the matter of Pradeep Jain and Others vs. Dileep Kumar and Others, reported in 2010 (2) MPHT 175 , where it is held that after the rejection of the application moved Order 22 Rule 3 of CPC a separate application under Order 22 Rule 9 of CPC would be maintainable. Reliance has also been placed on the judgment of the Hon’ble Supreme Court rendered in the matter of Banwari Lal (dead) by Legal Representatives and Another vs. Balbir Singh reported in (2016) 1 SCC 607 . Thus, he would pray to set aside the order passed by the learned Appellate Court. 4. On the other hand, learned counsel appearing for respondents No.1, 2c & 2d would oppose the submissions made by learned counsel for the appellant. Thus, he would pray to set aside the order passed by the learned Appellate Court. 4. On the other hand, learned counsel appearing for respondents No.1, 2c & 2d would oppose the submissions made by learned counsel for the appellant. He would submit that after the death of defendant No.3/Rajbantin Bai, the plaintiff moved an application under Order 22 Rule 4 of CPC whereas the application was filed after the expiry of the limitation period. He would further submit that the application was not accompanied by the applications under Order 22 Rule 9 of CPC and Section 5 of the Limitation Act therefore, the learned Appellate Court is justified in rejecting the application. He would submit that the appeal deserves to be dismissed. 5. Learned counsel for the State would support the order passed by the Court below. 6. I have heard learned counsel appearing for the parties and perused the documents placed on record. 7. From a perusal of the documents and the order impugned, it is quite vivid that Rajbantin Bai died on 13.05.2015 when the matter was closed for judgment by the trial Court but judgment was not passed. The fact of the death of Rajbantin Bai was not within the knowledge of the plaintiff therefore he filed a regular appeal without substituting her legal representatives. The summons was issued. Thereafter, the plaintiff moved an application under Order 22 Rule 4 of CPC on the ground that the application was within limitation but the very application was rejected by the learned Appellate Court and liberty was reserved in favour of the plaintiff to move the application under Order 22 Rule 9 of CPC for setting aside the abatement. The plaintiff moved an application under Order 22 Rule 9 of CPC along with an application under Section 5 of the Limitation Act on 19.06.2017 and the learned Appellate Court vide order dated 13.11.2018 rejected the application on the ground that the application was not moved within limitation and Section 5 of Limitation Act is not applicable. 8. Order 22 Rule 9 of CPC is reproduced herein below for ready reference:- “Effect of abatement or dismissal.?(l) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. 8. Order 22 Rule 9 of CPC is reproduced herein below for ready reference:- “Effect of abatement or dismissal.?(l) 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).” 9. From a bare perusal of Order 22 Rule 9(3) of CPC, it is quite clear that the provisions of Section 5 of the Indian Limitation Act shall apply to the application under Order 22 Rule 9(2) of CPC. Further, the provisions under Order 22 of CPC are not penal in nature. The provisions of Order 22 of CPC are procedural and to achieve the substantial rights of the parties and on the ground of technicalities, such rights cannot be curtailed by the Courts. 10. The Hon’ble Supreme Court in the matter of Banwari Lal (supra), in paragraphs 9 & 10 held as under:- “9. Provisions of Order XXII CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 , a Five Judge Bench of this Court held as under:- “26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court’s power or in conformity with the avowed object of the Court to do real, effective and substantial justice…” 10. In Sital Prasad Saxena (D) by Lrs. In Sital Prasad Saxena (D) by Lrs. v. Union of India and Ors., (1985) 1 SCC 163 , it was observed that the rules of procedure under Order XXII CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order cannot be sustained.” 11. Likewise, the High Court of Madhya Pradesh in the matter of Pradeep Jain (supra) has categorically held that the separate application under Order 22 Rule 9 of CPC is entertainable. The relevant paragraph 5 is reproduced herein below:- “5. After hearing the rival submissions, this Court is of the considered view that the appeal deserves to be allowed for the simple reason that whenever the L.Rs. fail to take appropriate steps to bring themselves on record in place of the deceased plaintiff/appellant within a period of 90 days, the suit/appeal abates. Abatement may be set aside on an application under Order 22 Rule 9, CPC provided the same is submitted within 60 days from the date of abatement. Learned Lower Appellate Judge has thus acted illegally in holding that once the application under Order 22 Rule 3 of CPC is dismissed, another application under Order 22 Rule 9 of CPC will not be entertainable. This is clearly a misconception of law. Learned Lower Appellate Court ought to have decided the application on merits.” 12. Taking into consideration the law laid by the Hon’ble Supreme Court as well as by the High Court of Madhya Pradesh and the provisions of Order 22 Rule 9 of CPC, the findings recorded by the learned Appellate Court appear to be erroneous, therefore, the order passed by the learned Appellate Court dated 13.11.2018 is hereby set aside. Learned Appellate Court is directed to decide the applications moved by the plaintiff/appellant under Order 22 Rule 9 of CPC along with application under Section 5 of the Limitation Act strictly in accordance with law keeping in mind the observations made herein above. 13. Accordingly, this petition is disposed of.