Bombay High Court
Chandralik (B) Chs Ltd vs Manish Rajnikant Jaitha And Ors on 6 May, 2022
Bench: Abhay Ahuja
SRS 1 Judgment-w.p-7179-2021
Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
YUGANDHARA
YUGANDHARA SHARAD
CIVIL APPELLATE JURISDICTION
SHARAD PATIL
PATIL Date:
2022.05.07
WRIT PETITION NO.7179 OF 2021
16:57:37
+0530
Chandralok (B) CHS Ltd.
Duly registered under the Co-operative
Societies Act, having its registered
Office at : A/97, Jagmohandas Road,
Mumbai - 400 006. ... Petitioner
Versus
1. Manish Rajnikant Jaitha
Aged about 51 years,
Occ. : Business, an adult Indian
Inhabitant, residing at 10,
Koregaon Road, Pune - 1.
2. Anuradha wd/o Krishnakant Jaitha
3. Sanjay Krishnakant Jaitha
Aged about 85 & 62 years respectively,
Occ. : Business, Both of Mumbai,
adult Indian Inhabitants, residing at :
2-B, Brighton No.2, Nepeansea Road,
Rungta Lane, Mumbai - 400 006. ... Respondents
-------
Mr. Darshit Jain a/w Mr.Rahul Singh for Petitioner.
Mr. Sachin Chavan for Respondents.
-------
CORAM : ABHAY AHUJA, J.
RESERVED ON : 8TH APRIL 2022
PRONOUNCED ON : 6TH MAY 2022
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SRS 2 Judgment-w.p-7179-2021
JUDGMENT :
1. By this Petition, filed under Article 227 of the Constitution of
India, the Petitioner is challenging the order dated 30 th August,
2021 passed by the Small Causes Court at Mumbai in R.A.E. Suit
No.547 of 2015 (the "said suit") allowing Application impleading
Respondents No.2 and 3 as to Plaintiffs to the said suit.
2. Petitioner is a co-operative Society under the Maharashtra Co-
operative Societies Act, 1960. One Shri.Krishnakant Chandrakumar
Jaitha and Respondent No.1 - Shri.Manish Rajnikant Jaitha being
Plaintiffs No.1 and 2 respectively, had filed the said suit against
Petitioner Co-operative Society as the Defendant therein on the
grounds of failure on the part of Petitioner to rectify the alleged
breaches of clauses 2(a) to (i) and 2 (l) of the lease dated 2 nd
February, 1972 executed between the Plaintiffs as Lessors and the
Defendant as Lessee for a period of 999 years including grounds of
unauthorized permanent alterations and additions, failure to pay
arrears of rent, seeking a decree and order against the Defendant
Co-operative Society to quit and vacate the suit land bearing
C.S.No.238 admeasuring 2737 sq.yds., Malabar Hill Division, situate
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SRS 3 Judgment-w.p-7179-2021
at A/97, Jagmohandas Road, Mumbai - 400 006 along with
structure building (the "said premises") and to handover and
deliver to the Plaintiffs, vacant and peaceful possession thereof.
3. On 23rd September, 2015, Petitioner herein filed its Written
Statement denying the averments in the Plaint and inter alia raising
preliminary issues of jurisdiction and maintainability.
4. On 3rd March, 2017, the Small Causes Court framed issues of
jurisdiction and maintainability as well as other issues in respect of
the breaches alleged by the Original Plaintiffs.
5. On 29th December, 2017 Original Plaintiff No.1 expired.
According to Petitioner, the suit automatically abated on 29 th
March, 2018 by operation of law under Order 22 Rule 3 read with
Article 120 of the Limitation Act, 1963 and that the period for filing
application for setting aside abatement under Article 121 of the
Limitation Act expired on 29th May, 2018.
6. Settlement talks were initiated on 4th October, 2018. Matter
was referred to mediation on 30th November, 2018 by the trial court.
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SRS 4 Judgment-w.p-7179-2021
However, the mediation failed on 17th December, 2018.
7. On 4th August, 2019, the Respondent No.1 / the Original
Plaintiff No.2 filed application in the trial court seeking deletion of
the Plaintiff No.1 as he had died on 29 th December, 2017 and to add
in his place Respondents No.2 and 3 as to Plaintiffs in the said suit
which was objected to by Petitioner by filing an Affidavit-in-Reply
dated 14th November, 2019 after which Respondent No.1 filed
Affidavit-in-Rejoinder dated 19th March, 2020.
8. The trial court passed an order dated 17 th March, 2021
rejecting the First Respondent's aforesaid Application at Exh.18.
The said order is quoted as under :-
"1. This is an application filed by the power of
attorney for plaintiff No.2 requesting to bring legal
representatives of deceased plaintiff No.1 on
record and make them plaintiffs.
2. As per Order 22 Rule 2 of the Code of Civil
Procedure, 1908, any party can inform to the
Court about death of the plaintiff and the Court
may implead them as a party, if cause of action
survives in favour of legal representatives.
However, one person who deserves to be plaintiff
should make an application.
3. The opinion of this Court is that if the legal
representatives of deceased plaintiff No.1 deserves
to be plaintiffs, they should make an application
signed and verified by them. If such application is
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made, it will be decided on its merit. The learned
advocate for the plaintiffs expressed his
willingness to make such application separately.
For this reason, as the application is not in proper
form, without going into the merits, the application
is rejected."
9. The aforesaid order was not challenged by Petitioner herein.
10. Respondents No. 2 and 3 filed an Application dated 26 th
March, 2021 (Exh.22) for joining/impleading them as Plaintiffs to
the said Suit. Petitioner filed an Affidavit-in-Reply dated 9 th August,
2021 objecting to the same.
11. By an order dated 30th August, 2021, the trial court allowed
Application dated 26th March, 2021 at Exh.22 for inserting the
names of Respondents No.2 and 3 as Plaintiffs in the said Suit. The
said order is quoted as under:-
"ORAL ORDER :
1. This is an application made by Anuradha w/d
of Krishnakant Jaitha and Sanjay Krishnakant
Jaitha for joining them as a party in this suit. The
application is opposed by defendants by filing their
say below Exh.23.
2. Perused the say and application. Heard Ld.
Advocates for both sides. It appears from the
record that though my Ld. Predecessor has called
the say of other plaintiff, but he failed to file say to
this application.
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SRS 6 Judgment-w.p-7179-2021
3. I have gone through the record. It appears
from the record that plaintiffs have filed the suit
against defendants for eviction and possession of
the suit premises. As per the contents of this
application on oath applicants stated that plaintiff
No.1 died on 29/12/2017 leaving behind the
proposed plaintiffs being the only heirs and legal
representatives. Suit cause of action also
continued in favour of the proposed plaintiffs. The
matter was referred to mediator, but it could not be
settled between the parties. Proposed plaintiffs are
proper and necessary parties and also entitled to
the benefit of the result of the suit. Applicants
prayed that, if any delay in taking out this
application for amendment of plaint be condoned.
It appears from Annexure-I filed with Exh.18 that
Krishnakant C. Jaitha died on 29/12/2017. It
appears from the record that my Ld.Predecessor
has rejected application below Exh.18 without
going to the merits, as the application was not in
proper form. The order of abatement of the suit is
not on record. The applicants have not presented
present application within limitation. It appears
from the verification clause of the present
application that Anuradha is the widow of
deceased Krishnakant and Sanjay is the son of
deceased Krishnakant. Considering the
relationship between the deceased and present
applicants it appears that applicants/proposed
plaintiffs are proper and necessary parties to the
suit and they are entitled to the benefits of the
result of the suit. Suit cause of action also
continued in favour of the proposed plaintiffs.
Applicants have stated on oath in the application
that matter was not settled between them before
the mediator. This is sufficient reason to condone
the delay caused for filing the present application.
Considering the above facts and circumstances,
the application deserves to be allowed. Hence, I
proceed to pass the following order.
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SRS 7 Judgment-w.p-7179-2021
"ORDER
1 Application is allowed.
2 The delay caused in filing this application is
hereby condoned, subject to costs of
Rs.1,000/- (Rs.One Thousand Only) payable
to the defendants.
3 The deemed order of abatement of suit is
hereby set aside.
4 The plaintiffs are directed to delete the name
of plaintiff No.1 Krishnakant Chandrakumar
Jaitha from the array of plaint in the title
clause of the suit.
5 Plaintiffs/Applicants are directed to insert
the names of proposed plaintiffs i.e.
Anuradha w/d of Krishnakant Jaitha as
plaintiff No.1(a) and Sanjay Krishnakant
Jaitha as plaintiff No.1(b).
6 The plaintiffs to carry out amendment
accordingly within 14 days.
Sd/-
Date : 30/08/2021. [S. B. Todkar]
Judge, Court of Small Causes,
Mumbai.
[Court Room No.11]."
12. This Petition is filed challenging this very order for the
following reliefs:
a) This Hon'ble High Court be pleased to issue a
writ of certiorari or a writ in the nature of
certiorari or any other appropriate Writ, Order or
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SRS 8 Judgment-w.p-7179-2021
Direction calling for the papers and records in RAE
Suit No.547 of 2015 pending before the Hon'ble
Small Causes Court at Bombay and after
examining the legality, validity and propriety of
the Order dated 30.08.2021 (Exhibit "H" hereto),
be pleased to quash and set aside the said Order
dated 30.08.2021 (Exhibit "H" hereto) and reject
the Respondents' Application (Exhibit "F");
b) In the alternative to prayer (a), This Hon'ble
High Court be pleased to issue a writ of certiorari
or a writ in the nature of certiorary or any other
appropriate Writ, Order or Direction calling for the
papers and records in RAE Suit No. 547 of 2015
pending before the Hon'ble Small Causes Court at
Bombay and after examining the legality, validity
and propriety of the Order dated 30.08.2021
(Exhibit "H" hereto), be pleased to remand the
Application at Exhibit - 22 for fresh consideration
by the Trial Court, after considering all the
contentions raised by the Petitioner."
13. It is submitted that the operation of the impugned order has
been stayed by an order of the trial court vide order dated
15.09.2021 and continues till 30th June, 2022.
14. Petitioner's case is that the suit has abated automatically by
operation of law as no application for bringing the legal heirs on
record was made within the period of 90 days from the death of
original Plaintiff No. 1. Further there was even no application made
within the period of 60 days from the death of the original Plaintiff
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SRS 9 Judgment-w.p-7179-2021
No. 1 to set aside the abatement. Without prejudice, it is submitted
that there is an unexplained gross delay of 1195 days by the
Respondents No. 2 and 3 in filing the application dated 26 th March
2021 giving mediation as an explanation which cannot be
considered as sufficient cause explaining the delay.
15. Mr. Darshit Jain, Ld. Counsel on behalf of Petitioner, contends
that after the death of the original Plaintiff No. 1, on 29 December
2017, by virtue of Order 22, Rule 3 (2) of the Code of Civil Procedure
(the "CPC"), read with Article 120 of the Limitation Act, 1963 (the
"Limitation Act") which provides for a period of 90 days from the
death of the deceased to have the legal heirs /representatives to be
made parties to the suit, as no application was made under Order 22
Rule 3 (1) of the CPC, the suit automatically abated on 29 th March,
2018 by operation of law and no specific order of the trial court was
necessary for recording the abatement. He submits that Article 121
of the Limitation Act prescribes a period of 60 days from the date of
abatement to set aside an abatement. That the suit abated on 29 th
March, 2018 and the Applicants were required to file an application
for setting aside the abatement within 60 days thereof i.e. by 29 th
May, 2018. However, no such application was made during the
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SRS 10 Judgment-w.p-7179-2021
prescribed period by Respondents No. 2 or 3. He would submit that
once the suit is abated no further application can be taken out
without sufficient cause and plausible explanation.
16. Ld. Counsel further submits that Respondents No. 2 and 3
have filed application dated 26th March, 2021 only seeking to be
joined as parties but the said application does not contain any
prayer for condoning delay. It is submitted that in the absence of
any prayer for condoning the delay, the trial court could not have
condoned the same in view of the limitation period contained in
Article 121 of the Limitation Act. He refers to the decision in the
case of State of Kerala V/s. Madhavakurup Ramachandran Pillai
[AIR 1999 Ker 359 (DB)]. Without prejudice to the aforesaid
contention Ld. Counsel submits that Respondents No.2 and 3 have
filed the said application after a gross delay of 1195 days for being
impleaded as necessary and proper parties. He submits that
mediation between the parties cited by the Ld. trial court in the
impugned order for explaining the delay cannot be sufficient cause
as Respondents No.2 and 3 were not parties to the mediation. He
submits that it is a settled principle that in order to seek
condonation of delay one must show sufficient cause and give
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justifiable explanation. He relies upon the decision in the case of
Brijesh Kumar & Ors. V/s. State of Haryana & Ors [(2014) 11 SCC
351]. He also relies upon the decision in the case of Balwant Singh
V/s. Jagdish Singh [(2010) 8 SCC 685] to submit that Limitation
Act is a substantive law and cannot be overridden without sufficient
and justifiable reasons.
17. On the other hand Mr. Chavan, Ld. Counsel representing the
Respondents, would submit that Respondents No. 2 and 3 are
respectively the wife and son of the deceased original Plaintiff No.1
having interest in the said premises and in the result of the
litigation. Ld. Counsel submits that in the application made on 26 th
March, 2021, where in paragraph 2 thereof it is not only pleaded
that the matter was referred to mediation but could not be settled
and that therefore if there was a delay in taking out the application
for amendment of the plaint for Respondents No. 2 and 3 to be
joined as parties in the suit, the same may be condoned. Ld. Counsel
submits that therefore the contention on behalf of Petitioner that
there is no such averment in the said application is not correct.
18. Ld. Counsel for the Respondents submits that Rule 1 of Order
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SRS 12 Judgment-w.p-7179-2021
22 of the CPC provides that if the right to sue survives, then the
death of the Plaintiff shall not cause abatement. Rule 2 provides
that in the case of death of one Plaintiff where the right to sue
survives, then the court has to cause an entry to that effect on
record and proceed with the suit at the instance of the surviving
Plaintiff. He submits that Rule 9 (3) empowers the legal
representatives of the Plaintiff to apply for setting aside the
abatement or dismissal by making out a case for sufficient cause
and the court may allow such application upon such terms as to the
cause or otherwise. Ld. Counsel submits that as the Original
Plaintiff No.1 and 2 were co-owners of the said premises and the suit
is filed for eviction and recovery of possession against Petitioner, on
account of the death of Plaintiff No.1, the right to sue survives upon
the Plaintiff No.2 and therefore, the suit does not abate. He submits
that since the proposed Plaintiffs are the legal heirs and
representatives of the deceased Plaintiff No.1 and having interest in
the said premises, they are entitled to continue to prosecute the suit
as the right to sue survives. Ld. Counsel has relied upon the
following decisions in support of his contentions:
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SRS 13 Judgment-w.p-7179-2021
(i) Ambalika Padhi and Another V/s.
Radhakrishna Padhi and Others [1992
(1) SCC 667]
(ii) Ha Malabari V/s. Nasiruddin Pirmohmad
[1997 (8) SCC 58]
(iii) Mahendra Kumar V/s. Lalchand [2001
(2) SCC 619]
(iv) Manovikas Kendra Rahabilitation and
Research Institute V/s. Premprakash
Lodha [2005 (7) SCC 224]
19. It is submitted that the delay in making the application was
bonafide as there was an attempt to resolve the dispute amicably
with Petitioner so as to put an end to the litigation and therefore the
matter was referred to mediation by the trial court which
unfortunately failed. Ld counsel submits that since the mediation
failed there was no option with the Respondents other than to be
added as parties to the suit. He submits that a liberal approach and
interpretation needs to be adopted while considering condonation of
delay application and deciding sufficient cause in the facts of this
case.
20. Ld. Counsel relies upon the following decisions in support of
his contentions:
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(i) Ram Nath Sao Alias Ram Nath Sahu and
Others V/s. Gobardhan Sao [2002 (3) SCC
195]
(ii) Mithailal Dalsangar Singh V/s. Annabai
Devram Kini [2003 (10) SCC 691]
21. It is also submitted on behalf of Respondents that if the
Respondents No.2 and 3 are not allowed to be impleaded in the suit,
then the suit would stand abated against Plaintiff No. 1. However,
the suit will not abate against Plaintiff No. 2 being a suit for
enforcement of a right in property and there is a possibility of a
decree for recovery of possession in his favour leading to the
possibility of contradictory decrees. That therefore it is incumbent
that the order of setting aside of the abatement be upheld and the
Respondents No. 2 and 3 be added as co-Plaintiffs to the suit so that
the suit can proceed and be adjudicated on merits.
22. Mr.Chavan submits that the order of the trial court is well
reasoned and does not suffer from any infirmity, illegality or
perversity and therefore no interference is called for by this court
and the Petition ought to be dismissed.
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23. I have heard Mr. Darshit Jain on behalf of Petitioner and Mr.
Sachin Chavan on behalf of the Respondents and with their able
assistance have perused the papers and proceedings. This Petition
was heard on 8th April 2022 when the following order came to be
passed:
"1. Closed for orders.
2. Parties are permitted to tender their
written submissions within a period of two
weeks."
24. Though no reply has been filed in the Petition but pursuant to
the above order, written submissions on behalf of the Respondents
have been filed on 19th April, 2022 and Petitioner's written
submissions have been filed on 25th April, 2022.
25. The basic facts are not in dispute. R.A.E. Suit No.547 of 2015
had been filed by Shri. Krishnakant Chandrakumar Jaitha and
Respondent No.1 - Shri. Manish Rajnikant Jaitha being Plaintiffs
No.1 and 2 respectively, against Petitioner Co-operative Society as
the Defendant therein on the grounds of failure on the part of
Petitioner to rectify the alleged breaches of clauses 2(a) to (i) and 2
(l) of the lease dated 2nd February, 1972 executed between the
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SRS 16 Judgment-w.p-7179-2021
Plaintiffs as Lessors and the Defendant as Lessee for a period of 999
years including grounds of unauthorized permanent alterations and
additions, failure to pay arrears of rent, seeking a decree and order
against the Defendant Co-operative Society to quit and vacate the
suit land and to handover and deliver to the Plaintiffs, vacant and
peaceful possession thereof. During the pendency of the Suit and
after the framing of issues, on 29.12.2017, Plaintiff No. 1 died and
Plaintiff No.2 is the surviving Plaintiff. On 14.10.2018 settlement
talks commenced. Matter was referred to mediation on 30.11.2018.
On 17.12.2018, the mediation failed and on 4th August, 2019, the
Respondent No. 1 (Original Plaintiff No. 2) filed an application
seeking deletion of the Plaintiff No. 1 and addition of Respondents
No. 2 and 3 as Plaintiffs in the said suit. To this application,
Petitioner had objected on the following grounds:
"a. The Application suffered from gross and
unconscionable laches apart from being
hopelessly barred by the law of limitation.
b. The Applicants had not sought setting
aside of abatement and did not set out
any grounds in support thereof.
c. The Application did not seek any
consequential amendment.
d. The deponent of the Application had no
authority to file the same.
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e. The process of mediation was undertaken
at least 246 days after abatement of the
Suit and would not constitute cause for
condonation of delay."
26. The Respondent No. 1 also filed an Affidavit-in-Rejoinder dated
19th March 2020. Thereafter an order dated 17 th March 2021 came
to be passed whereby the said application by Respondent No. 1
(Original Plaintiff No. 2) for deleting Plaintiff No. 1 and adding
Respondents No. 2 and 3 was rejected without going into the merits
as being not in proper form. The trial court was of the view that
pursuant to Order 22 Rule (2) of the CPC, if the legal
representatives of the deceased Plaintiff No.1 deserved to be
Plaintiffs, they should make an application signed and verified by
them and if such an application is made, the same would be decided
on its merits. It was also recorded that the proposed Plaintiffs'
advocate had expressed his willingness to make such an application
separately. This order has not been challenged by Petitioner society.
It is therefore, not necessary for this Court to express any views in
respect of the said order as the same is not in challenge. Thereafter,
an application dated 26th March 2021 was filed on behalf of
Respondents No. 2 and 3 for joining/impleading them as Plaintiffs in
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the said suit. Petitioner herein filed its say and after hearing the
advocates and going through the record, the impugned order dated
30th August, 2021 came to be passed by the Small Causes Court at
Mumbai, setting aside the abatement and directing the insertion of
Respondent Nos. 2 and 3 as Plaintiffs in the suit.
27. Emphasising on deciding matters on merits and construing
the provisions of Order 22 in the aid of doing substantial justice
between the parties, in Sardar Amarjit Singh versus Pramod Gupta
[(2003) 3 SCC 272)] the Hon'ble Supreme Court observed:
"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 handmaiden 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 substantial justice claim remain
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SRS 19 Judgment-w.p-7179-2021
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..."
28. In Mithailal Dalsangar Singh and Others V/s. Annabai Devram
Kini and Others [(2003 (10) Supreme Court Cases 691] the Hon'ble
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Supreme Court said:
"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. 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 abatement. So also a prayer for setting aside
abatement as regard 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."
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The Hon'ble Supreme Court further went on to add:
"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 of
the CPC 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."
29. It will be useful to set out the provisions of Rules 1 to 9 of
Order 22 of the CPC as under:
"ORDER XXII
DEATH, MARRIAGE AND INSOLVENCY OF
PARTIES
1. No abatement by party's death, if right to sue
survives.- The death of a plaintiff or defendant
shall not cause the suit to abate if the right to sue
survives.
2. Procedure where one of several plaintiffs or
defendants dies and right to sue survives.- Where
there are more plaintiffs or defendants than one,
and any of them dies, and where the right to sue
survives to the surviving plaintiff or plaintiffs
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SRS 22 Judgment-w.p-7179-2021
alone, or against the surviving defendant or
defendants alone, the Court shall cause an entry
to that effect to be made on the record, and the
suit shall proceed at the instance of the surviving
plaintiff or plaintiffs, or against the surviving
defendant or defendants.
3. Procedure in case of death of one of several
plaintiffs or of sole plaintiff.- (1) Where one of two
or more plaintiffs dies and the right to sue does
not survive to the surviving plaintiff or plaintiffs
alone, or a sole plaintiff or sole surviving plaintiff
dies and the right to sue survives, the Court, on
an application made in that behalf, shall cause the
legal representative of the deceased plaintiff to be
made a party and shall proceed with the suit.
(2) Where within the time limited by law no
application is made under sub-rule (1), the suit
shall abate so far as the deceased plaintiff is
concerned, and, on the application of the
defendant, the Court may award to him the costs
which he may have incurred in defending the suit,
to be recovered from the estate of the deceased
plaintiff.
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 part 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.
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[(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 therefor 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.]
4-A. Procedure where there is no legal
representative.-
(1) If, in any suit, it shall appear to the Court that
any party who has died during the pendency of
the suit has no legal representative, the Court
may, on the application of any party to the suit,
proceed in the absence of a person representing
the estate of the deceased person, or may by order
appoint the Administrator-General, or an officer
of the Court or such other person as it thinks fit to
represent the estate of the deceased person for
23 of 59
SRS 24 Judgment-w.p-7179-2021
the purpose of the suit; and any judgment or order
subsequently given or made in the suit shall bind
the estate of the deceased person to the same
extent as he would have been bound if a personal
representative of the deceased person had been a
party to the suit.
(2) Before making an order under this rule, the
Court-
(a) may require notice of the application for the
order to be given to such (if any) of the persons
having an interest in the estate of the deceased
person as it thinks fit; and
(b) shall ascertain that the person proposed to be
appointed to represent the estate of the deceased
person is willing to be so appointed and has no
interest adverse to that of the deceased person.
5. Determination of question as to legal
representative.- Where a question arises as to
whether any person is or is not the legal
representative of a deceased plaintiff or a
deceased defendant, such question shall be
determined by the Court:
[Provided that where such question arises before
an Appellate Court, that Court may, before
determining the question, direct any subordinate
Court to try the question and to return the
records together with evidence, if any, recorded at
such trial, its findings and reasons therefor, and
the Appellate Court may take the same into
consideration in determining the question.
6. No abatement by reason of death after hearing.-
Notwithstanding anything contained in the
foregoing rules, whether the cause of action
survives or not, there shall be no abatement by
reason of the death of either party between the
conclusion of the hearing and the pronouncing of
the judgment, but judgment may in such case be
pronounced notwithstanding the death and shall
have the same force and effect as if it had been
24 of 59
SRS 25 Judgment-w.p-7179-2021
pronounced before the death took place.
7. Suit not abated by marriage of female party.-
(1) The marriage of a female plaintiff or
defendant shall not cause the suit to abate, but the
suit may notwithstanding be proceeded with to
judgment, and, where the decree is against a
female defendant, it may be executed against her
alone.
(2) Where the husband is by law liable for the
debts of his wife, the decree may, with the
permission of the Court, be executed against the
husband also; and, in case of judgment for the
wife, execution of the decree may, with such
permission, be issued upon the application of the
husband, where the husband is by law entitled to
the subject matter of the decree.
8. When plaintiff's insolvency bars suit.- (1)
The insolvency of a plaintiff in any suit which the
assignee or receiver might maintain for the
benefit of his creditors, shall not cause the suit to
abate, unless such assignee or receiver declines to
continue the suit or (unless for any special reason
the Court otherwise directs) to give security for
the costs thereof within such time as the Court
may direct.
(2) Procedure where assignee fails to continue
suit, or give security- Where the assignee or
receiver neglects or refuses to continue the suit
and to give such security within the time so
ordered, the defendant may apply for the
dismissal of the suit on the ground of the
plaintiff's insolvency, and the Court may make an
order dismissing the suit and awarding to the
defendant the costs which he has incurred in
defending the same to be proved as a debt against
the plaintiff's estate.
9. Effect of abatement or dismissal.-(1) Where a
suit abates or is dismissed under this Order, no
25 of 59
SRS 26 Judgment-w.p-7179-2021
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).
30. Section 5 of the Limitation Act is also relevant and is
quoted as under:
5. Extension of prescribed period in certain
cases.- Any appeal or any application, other than
an application under any of the provisions of
Order XXI of the Code of Civil Procedure, 1908 (5
of 1908), may be admitted after the prescribed
period, if the appellant or the applicant satisfies
the court that he had sufficient cause for not
preferring the appeal or making the application
within such period.
Explanation.- The fact that the appellant or
the applicant was misled by any order, practice or
judgment of the High Court in ascertaining or
computing the prescribed period may be sufficient
cause within the meaning of this section."
31. As can be seen, Order 22 deals with creation, assignment and
devolution of interest during the pendency of suits and appeals.
Order 22 seeks to take away the right of the Plaintiff or Appellant
26 of 59
SRS 27 Judgment-w.p-7179-2021
from proceeding with the suit or appeal on the ground that the suit
instituted or appeal preferred by him has abated. Abatement kills
the right to sue and has the effect of unceremoniously terminating
pending legal proceedings without adjudication on merits. It has
therefore to be strictly construed and applied only in those cases to
which its applicability is undoubtedly attracted. Therefore, the
provision of abatement has to be construed strictly, but the prayer
for setting aside the abatement has to be construed liberally. The
purpose of substitution of parties is to consider the case on merits.
The object of substitution is limited to the extent by allowing the
Plaintiff or Appellant to continue the litigation so that adjudication
of rival claims can be done by a Court in accordance with law.
32. Where a party to a suit dies, therefore the first question which
requires consideration is whether the right to sue survives? Order
22 Rule 1 clearly provides that the death of a Plaintiff or defendant
shall not cause the suit to abate if the right to sue survives. The suit
can be continued by or against heirs and legal representatives of the
deceased Plaintiff or defendant, as the case may be. The expression
"right to sue" has not been defined in the CPC but it may be
construed to mean "right to seek relief" or "right to bring a suit
27 of 59
SRS 28 Judgment-w.p-7179-2021
claiming relief". In the case of Sarat Chandra v. Nani Mohan (1906)
36 Cal 799 (801), it has been held by the Calcutta High Court that
"right to sue means the right to bring a suit for the same relief
which the deceased Plaintiff asserted at the time of his death". The
survival of the right to sue on the death of the Plaintiff is an issue
that can be resolved on a combination of several facts and
circumstances. As a general rule all rights of action and all demands
whatsoever existing in favour of or against a person at the time of
his death survive to or against his representatives. But in cases of
personal actions i.e. actions where the relief sought is personal to
the deceased or the rights intimately connected with the
individuality of the deceased, the right to sue will not survive to or
against his representatives. Thus contracts involving the exercise of
special skill like a promise to paint a picture do not bind the
representatives of the promisor nor do they create a right in them
that can survive the death of the promisor. In these cases, the
maxim actio personalis mortiur cum persona i.e. a personal action
dies with the person applies. Certain acts and omissions that are
purely personal in nature will not survive. The right or liability in
such cases dies with the person and does not survive and therefore
cannot be enforced by or against his heirs or representatives. But if
28 of 59
SRS 29 Judgment-w.p-7179-2021
the right to sue survives against the legal representatives of the
Plaintiff, the suit can continue.
33. In this case, Plaintiff No. 1 and Plaintiff No. 2 were the lessors
of the said premises on lease to petitioner who is a lessee. The suit is
for eviction of petitioner for the alleged breaches of the lease
agreement and recovery of possession in respect of the said
premises. This right is not a personal right but a right to recover
possession in respect of the said premises after evicting the
petitioner lessee. It is a property right. The heirs of the deceased
Plaintiff would in have a right to bring a suit for the same relief
which the deceased Plaintiff No. 1 asserted at the time of his death
and as such the right to sue would survive in their favour. Since
right to sue has survived, in accordance with Rule 1 of Order 22 the
said suit cannot abate.
34. Having observed that right to sue survives in the facts of the
case, let us consider the procedure under Order 22 Rule 3. Under
Rule 3(1), where one of two or more plaintiffs dies and the right to
sue does not survive to the surviving plaintiff or plaintiffs alone, or
a sole plaintiff or sole surviving plaintiff dies and the right to sue
29 of 59
SRS 30 Judgment-w.p-7179-2021
survives, the Court, on an application made in that behalf, shall
cause the legal representative of the deceased plaintiff to be made a
party and shall proceed with the suit and under Rule 3(2), where
within the time limited by law no application is made under sub-rule
(1), the suit shall abate so far as the deceased plaintiff is concerned,
and, on the application of the defendant, the Court may award to
him the costs which he may have incurred in defending the suit, to
be recovered from the estate of the deceased plaintiff.
35. Ambit and scope of Rules 2 and 3 of Order 22 is different. If
the case is covered by Rule 2, the right to sue survives to the
surviving Plaintiff or Plaintiffs or against the surviving defendant
or defendants then there is no question of abatement of the suit. The
court in such cases will record such fact and proceed to decide the
suit. But if the case falls under Rule 3 (death of one of the several
Plaintiffs or sole Plaintiff) and the right to sue does not survive to
the surviving Plaintiff or Plaintiffs or a sole Plaintiff or sole
surviving Plaintiff dies and the right to sue survives, the Court on
an application, shall cause the legal representative of the deceased
Plaintiff to be made a party and shall proceed with the suit and if no
such application is made within the law of limitation, the suit will
30 of 59
SRS 31 Judgment-w.p-7179-2021
abate with respect to the deceased Plaintiff.
36. As per Order 22, Rule 9 where a suit abates or is dismissed
under Order 22, no fresh suit shall be brought on the same cause of
action but 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.
37. Under Rule 9 (3) it is provided that the provisions of Section 5
of the Indian Limitation Act shall apply to applications under Sub
rule 2.
38. Rule 5 of Order 22 deals with the determination of the
question as to legal representatives of a deceased Plaintiff or
Defendant.
39. In the case at hand originally there were two Plaintiffs. The
Plaintiff No. 1 expired. The Plaintiff No. 2 survived the Plaintiff
31 of 59
SRS 32 Judgment-w.p-7179-2021
No. 1. The Respondents are Plaintiff No. 2 and the wife of Plaintiff
No. 1 and son of Plaintiff No.1 who are sought to be joined as parties
to the suit.
40. A perusal of the said application dated 26 th March, 2021,
indicates that the Respondents No. 2 and 3 have stated on oath that
Plaintiff No. 1 died on 29th December 2017 leaving behind the two of
them as the only heirs and legal representatives of Plaintiff No. 1
annexing a copy of the death certificate of Plaintiff No. 1 issued by
the Municipal Corporation of Greater Mumbai 'D' Ward.
41. The expression legal representative has been defined in
Section 2 (11) of the Code and is very wide and covers a person who
in law represents the estate of the deceased or a person who
intermeddles with the estate of the deceased or where a party sues
or is sued in a representative character, or the person on whom the
estate devolves on the death of the party so suing or sued.
42. The following paragraph from the decision in the case of
Mohinder Kaur V/s. Piara Singh, AIR 1981 P & H 130 (FB) is
relevant and is quoted as under:
32 of 59
SRS 33 Judgment-w.p-7179-2021
"In essence a decision under Order 22, Rule 5,
Civil Procedure Code, is only directed to answer
an orderly conduct of the proceedings with a view
to avoid the delay in the final decision of the suit
till the persons claiming to be the representatives
of the deceased party get the question of
succession settled through a different suit and
such a decision does not put an end to the
litigation in that regard. It also does not
determine any of the issues in controversy in the
suit. Besides this it is obvious that such a
proceeding is of a very summary nature against
the result of which no appeal is provided for. The
grant of an opportunity to lead some sort of
evidence in support of the claim of being a legal
representative of the deceased party would not in
any manner change the nature of the
proceedings."
43. The decision is limited for the purpose of proceeding with the
suit and has no effect of conferring any right over the property. The
proper course to follow in such cases is to bring all the legal
representatives on record so that they vouchsafe the estate of the
deceased for ultimate benefit of the real legal representative.
44. From the order dated 30th August 2021, it is observed that
the said order has been passed after perusing the application made
on behalf of Respondents No. 2 and 3 as well as the say of petitioner
33 of 59
SRS 34 Judgment-w.p-7179-2021
and after hearing the advocates of both the sides and after perusing
the record in the matter, the learned trial judge has given finding
that from the verification clause of the application it appears that
Respondent No. 2 is the widow of the deceased Plaintiff No.1 and
Respondent No.3 is the son of the deceased Plaintiff No.1 and
considering the relationship between the deceased Plaintiff No.1
and the Respondents No.2 and 3, it appears that the proposed
Plaintiffs are entitled to the benefits of the result of the suit. Also in
the written submissions filed on behalf of these Respondents, the
respective Aadhaar cards have been annexed which indicate their
relationship respectively as wife and son of the deceased Plaintiff
No.1. The Petitioner has not disputed this finding nor furnished any
material to the contrary except a bald statement/argument that the
application on behalf of Respondents No. 2 and 3 does not disclose
the relationship of the deceased with the proposed Plaintiffs.
Therefore, in my view, the trial court has correctly decided the
question of the Respondents No. 2 and 3 being the legal heirs.
45. The learned trial judge has observed in the said order that the
Applicants have not presented the application within the time of
limitation. Nevertheless, considering that Respondents No. 2 and 3
34 of 59
SRS 35 Judgment-w.p-7179-2021
being heirs of the deceased Plaintiff No.1, and that the matter was
not settled in mediation, the learned trial judge has held this to be
sufficient reason to condone the delay caused in filing the
application and set aside the abatement of the suit with respect to
Plaintiff No.1. In my view, there is no fault in his reasoning. In the
facts of this case, Respondents No. 2 and 3 have made out a case of
sufficient cause for the delay which has been rightly condoned by
the learned trial judge.
46. Learned trial judge while recording in his order that the
abatement of the suit is not on record has set aside the deemed
order of abatement of suit. It is settled law that once abatement
takes place the same is automatic by operation of law provided the
same is set aside by an order of the Court upon filing of an
application within time or by making out sufficient cause for
condonation of delay if made beyond the time prescribed. The right
to sue has survived in favour of the Respondents No. 2 and 3,
however it is an admitted position that no application has been
made within the time prescribed for either bringing Respondent
Nos. 2 and 3 on record nor for setting aside the abatement deemed
to have taken place with respect to the deceased Plaintiff No.1
35 of 59
SRS 36 Judgment-w.p-7179-2021
under Order 22, Rule 3(2). The application for joining Respondents
No. 2 and 3 as parties to the suit was first made on 04 th August,
2019 by Respondent No.1 (Original Plaintiff No.2) and then as the
ld. Trial Judge did not decide the same on merits holding it to be not
in proper form, an application was made on behalf of Respondents
No.2 and 3 on 26th March, 2021.
47. Plaintiff No.1 was one of the co-owners of the suit property.
From paragraph 2 of the said application dated March 26, 2021,
though not happily worded, it is observed that because the matter
was referred to mediation and which could not be settled,
Respondents No. 2 and 3 being the legal heirs would be entitled to
the benefit of the result of the suit. It is therefore not relevant,
whether Respondents No.2 and 3 were parties to the mediation or
not but being the heirs to Plaintiff No.1, naturally they would be
interested in the outcome of the said mediation. It is only when the
mediation failed and the suit had to be prosecuted further that it
was thought fit to make them parties to the said litigation. In my
view there is nothing wrong in this approach because if the matter
would have been settled by mediation, the necessity of filing such
applications would have been obviated.
36 of 59
SRS 37 Judgment-w.p-7179-2021
48. It is also observed from paragraph 2 of the said application
dated 26th March, 2021 that there is a prayer to condone the delay
in taking out the said application although the same has not found
place in paragraph 4 which is the prayer clause, where the request
to join Respondents No. 2 and 3 as parties to the suit has been
made, but this is a mere technicality and should not come in the way
of a court deciding applications of this nature. Therefore, it cannot
be said that there is no prayer for condonation of delay.
49. In the case of Ram Nath Sao Alias Ram Nath Sahu and Others
V/s. Gobardhan Sao and Others [(2002) 3 SCC 195], the Hon'ble
Supreme Court observed that the expression "sufficient cause"
under Order 22, Rule 9 should receive a liberal construction so as to
advance substantial justice. Paragraph 12 of the said decision is
usefully quoted as under:
"12. Thus it becomes plain that the expression
"sufficient cause" within the meaning of Section 5
of the Act or Order 22 Rule 9 of the Code or any
other similar provision should receive a liberal
construction so as to advance substantial justice
when no negligence or inaction or want of bona
fides is imputable to a party. In a particular case
whether explanation furnished would constitute
"sufficient cause" or not will be dependent upon
37 of 59
SRS 38 Judgment-w.p-7179-2021
facts of each case. There cannot be a straitjacket
formula for accepting or rejecting explanation
furnished for the delay caused in taking steps. But
one thing is clear that the courts should not
proceed with the tendency of finding fault with the
cause shown and reject the petition by a slipshod
order in overjubilation of disposal drive.
Acceptance of explanation furnished should be the
rule and refusal, an exception, more so when no
negligence or inaction or want of bona fides can be
imputed to the defaulting party. On the other hand,
while considering the matter the courts should not
lose sight of the fact that by not taking steps within
the time prescribed a valuable right has accrued to
the other party which should not be lightly
defeated by condoning delay in a routine-like
manner. However, by taking a pedantic and
hypertechnical view of the matter the explanation
furnished should not be rejected when stakes are
high and/or arguable points of facts and law are
involved in the case, causing enormous loss and
irreparable injury to the party against whom the
lis termintes, either by default or inaction and
defeating valuable right of such a party to have the
decision on merit. While considering the matter,
courts have to strike a balance between resultant
effect of the order it is going to pass upon the
parties either way."
50. Therefore even if the application for joining the legal heirs as
in this case is not happily worded, in order to render substantial
justice, a liberal and meaningful construction and interpretation
38 of 59
SRS 39 Judgment-w.p-7179-2021
has to be given to the averments in the application.
51. In the facts of this case, Respondents No. 2 and 3 have made
out a case of sufficient cause for the delay which has been rightly
condoned by the learned trial judge.
52. It has been contended by the Petitioner that in view of
rejection of earlier application at Exh.18 vide order dated 17th
March, 2021, that subsequent Application for the same relief would
not be maintained. A bare perusal of the said order clearly indicates
that the said application was rejected without going into the merits
as being not in proper form i.e. not having been signed and verified
by the legal representatives of the deceased Plaintiff No.1 and an
application duly signed and verified by them would need to be filed.
The advocate of the Respondents had also agreed to make such an
application separately which would be decided on merits. The
application dated 26th March, 2021 therefore came to be filed on
behalf of Respondents No.2 and 3 being the legal heirs of the
Plaintiff No.1. Therefore this contention is baseless.
53. With respect to the reliance of Petitioner on the decisions in
39 of 59
SRS 40 Judgment-w.p-7179-2021
the case of Brijesh Kumar & Ors. (supra) and Balwant Singh V/s.
Jagdish Singh (supra), these decisions lay down the foundational
principles. However, the said decisions cannot be said to be of any
assistance to the case of Petitioner as in the facts and circumstances
of this case it has been observed that there is sufficient cause made
out for condoning the delay. As also observed, the provisions for
condonation of delay are required to be construed liberally to
achieve substantial justice.
54. In fact, the decision in the case of Balwant Singh V/s. Jagdish
Singh (supra) in my view advances the case of the Respondents
rather than Petitioner. Paragraphs 15 to 27, 32 to 35 and 38 are
relevant and are quoted as under :
15. Rule 1 of Order 22, CPC mandates that the
death of a defendant or a plaintiff shall not cause
the suit to abate if the right to sue survives. In
other words, in the event of death of a party,
where the right to sue does not survive, the suit
shall abate and come to an end. In the event the
right to sue survives, the concerned party is
expected to take steps in accordance with
provisions of this Order. Order 22 Rule 3, CPC
therefore, prescribes that where the plaintiff dies
and the right to sue has survived, then an
application could be filed to bring the legal
representatives of the deceased plaintiff/
40 of 59
SRS 41 Judgment-w.p-7179-2021
appellant on record within the time specified (90
days).
16. Once the proceedings have abated, the suit
essentially has to come to an end, except when
the abatement is set aside and the legal
representatives are ordered to be brought on
record by the Court of Competent jurisdiction in
terms of Order 22 Rule 9 (3), CPC. Order 22 Rule
9 (3) of the CPC contemplates that provisions of
Section 5 of the Indian Limitation Act, 1963 shall
apply to an application filed under Sub Rule 2 of
Rule 9 of Order 22, CPC. In other words, an
application for setting aside the abatement has to
be treated at par and the principles enunciated for
condonation of delay under Section 5 of the
Limitation Act are to apply para materia.
17. Section 3 of the Limitation Act requires that
suits or proceedings instituted after the
prescribed period of limitation shall be dismissed.
However, in terms of Section 5, the discretion is
vested in the Court to admit an appeal or an
application, after the expiry of the prescribed
period of limitation, if the appellant shows
"sufficient cause" for not preferring the
application within the prescribed time. The
expression "sufficient cause" commonly appears
in the provisions of Order 22 Rule 9 (2) CPC and
Section 5 of the Limitation Act, thus categorically
demonstrating that they are to be decided on
similar grounds. The decision of such an
application has to be guided by similar precepts. It
will be appropriate for us to trace the law
enunciated by this Court while referring, both the
provisions of Order 22 Rule 9, CPC and Section 5
of the Limitation Act.
41 of 59
SRS 42 Judgment-w.p-7179-2021
18. In Union of India v. Ram Charan, a three-
Judge Bench of this Court was concerned with an
application filed under Order 22 Rule 9 CPC for
bringing the legal representatives of the deceased
on record beyond the prescribed period of
limitation. The Court expressed the view that
mere allegations about belated knowledge of death
of the opposite party would not be sufficient. The
Court applied the principle of "reasonable time"
even to such situations. While stating that the
Court was not to invoke its inherent powers under
Section 151 CPC it expressed the view that the
provisions of Order 22 Rule 9 CPC should be
applied. The Court held as under: (Ram Charan
case, AIR pp. 219-20, paras 8, 10 & 12)
"8. There is no question of construing the
expression `sufficient cause' liberally either
because the party in default is the Government or
because the question arises in connection with the
impleading of the legal representatives of the
deceased respondent. The provisions of the Code
are with a view to advance the cause of justice. Of
course, the Court, in considering whether the
appellant has established sufficient cause for his
not continuing the suit in time or for not applying
for the setting aside of the abatement within time,
need not be over-strict in expecting such proof of
the suggested cause as it would accept for holding
certain fact established, both because the question
does not relate to the merits of the dispute
between the parties and because if the abatement
is set aside, the merits of the dispute can be
determined while, if the abatement is not set
aside, the appellant is deprived of his proving his
claim on account of his culpable negligence or lack
42 of 59
SRS 43 Judgment-w.p-7179-2021
of vigilance. This, however, does not mean that
the Court should readily accept whatever the
appellant alleges to explain away his default. It
has to scrutinize it and would be fully justified in
considering the merits of the evidence led to
establish the cause for the appellant's default in
applying within time for the impleading of the
legal representatives of the deceased or for
setting aside the abatement.
10....The procedure requires an application for the
making of the legal representatives of the
deceased plaintiff or defendant a party to the suit.
It does not say who is to present the application.
Ordinarily it would be the plaintiff as by the
abatement of the suit the defendant stands to
gain. However, an application is necessary to be
made for the purpose. If no such application is
made within the time allowed by law, the suit
abates so far as the deceased plaintiff is
concerned or as against the deceased defendant.
The effect of such an abatement on the suit of the
surviving plaintiffs or the suit against the
surviving defendants depends on other
considerations as held by this Court in State of
Punjab v. Nathu Ram and Jhanda Singh v.
Gurmukh Singh. Any way, that question does not
arise in this case as the sole respondent had died.
12....The legislature further seems to have taken
into account that there may be cases where the
plaintiff may not know of the death of the
defendant as ordinarily expected and, therefore,
not only provided a further period of two months
under Art. 171 for an application to set aside the
abatement of the suit, but also made the
provisions of Section 5 of the Limitation Act
43 of 59
SRS 44 Judgment-w.p-7179-2021
applicable to such applications. Thus the plaintiff
is allowed sufficient time to make an application
to set aside the abatement which, if exceeding five
months, be considered justified by the Court in the
proved circumstances of the case. It would be
futile to lay down precisely as to what
considerations would constitute "sufficient cause"
for setting aside the abatement or for the
plaintiff's not applying to bring the legal
representatives of the deceased defendant on the
record or would be held to be sufficient cause for
not making an application to set aside the
abatement within the time prescribed. But it can
be said that the delay in the making of such
applications should not be for reasons which
indicate the plaintiff's negligence in not taking
certain steps which he could have and should
have taken. What would be such necessary steps
would again depend on the circumstances of a
particular case and each case will have to be
decided by the court on the facts and
circumstances of the case. Any statement of
illustrative circumstances or facts can tend to be
a curb on the free exercise of its mind by the
Court in determining whether the facts and
circumstances of a particular case amount to
"sufficient cause" or not. Courts have to use their
discretion in the matter soundly in the interests
of justice."
20. In Mithailal Dalsangar Singh, a Bench of this
Court had occasion to deal with the provisions of
Order 22 Rule 9 CPC and while enunciating the
principles controlling the application of and
exercising of discretion under these provisions,
the Court reiterated the principle that the
44 of 59
SRS 45 Judgment-w.p-7179-2021
abatement is automaticand not even a specific
order is required to be passed by the Court in that
behalf. It would be useful to reproduce paragraph
8 of the said judgment which has a bearing on the
matter incontroversy before us: (SCC p. 696)
"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. 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
45 of 59
SRS 46 Judgment-w.p-7179-2021
actually asked for and is necessarily implied. Too
technical or pedantic an approach in such cases is
not called for."
21. Another Bench of this Court in a recent
judgment of Katari Suryanarayana v. Koppisetti
Subba Rao, [AIR 2009 SC 2907] again had an
occasion to construe the ambit, scope and
application of the expression "sufficient cause".
The application for setting aside the abatement
and bringing the legal heirs of the deceased on
record was filed in that case after a considerable
delay. The explanation rendered regarding the
delay of 2381 days in filing the application for
condonation of delay and 2601 days in bringing
the legal representatives on record was not found
to be satisfactory. Declining the application for
condonation of delay, the Court, while discussing
the case of Perumon Bhagvathy Devaswom v.
Bhargavi Amma [(2008) 8 SCC 321] in its para 13
held as under: (SCC pp. 329-30)
"(i) The words "sufficient cause for not making
the application within the period of limitation"
should be understood and applied in a reasonable,
pragmatic, practical and liberal manner,
depending upon the facts and circumstances of
the case, and the type of case. The words
'sufficient cause' in Section 5 of the Limitation Act
should receive a liberal construction so as to
advance substantial justice, when the delay is not
on account of any dilatory tactics, want of bona
fides, deliberate inaction or negligence on the part
of the appellant."
22. The Learned Counsel appearing for the
applicant, while relying upon the cases of Ram
46 of 59
SRS 47 Judgment-w.p-7179-2021
Sumiran, Mithailal Dalsangar Singh and
Ganeshprasad Badrinarayan Lahoti, contended
that the Court should adopt a very liberal
approach and the delay should be condoned on
the mere asking by the applicant. Firstly, none of
these cases is of much help to the applicant.
Secondly, in the case of Ram Sumiran the Court
has not recorded any reasons or enunciated any
principle of law for exercising the discretion. The
Court, being satisfied with the facts averred in the
application and particularly giving benefit to the
applicant on account of illiteracy and ignorance,
condoned the delay of six years in filing the
application. This judgment cannot be treated as a
precedent in the eye of the law. In fact, it was a
judgment on its own facts.
24. As held by this Court in Mithailal Dalsangar
Singh : (SCC p. 696, para 8)
"8. ... the abatement results in the 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."
25. We may state that even if the term
"sufficient cause" has to receive liberal
construction, it must squarely fall within the
concept of reasonable time and proper conduct of
the concerned party. The purpose of introducing
liberal construction normally is to introduce the
concept of "reasonableness" as it is understood in
its general connotation.
26. The law of limitation is a substantive law
and has definite consequences on the right and
47 of 59
SRS 48 Judgment-w.p-7179-2021
obligation of a party to arise. These principles
should be adhered to and applied appropriately
depending on the facts and circumstances of a
given case. Once a valuable right has accrued in
favour of one party as a result of the failure of the
other party to explain the delay by showing
sufficient cause and its own conduct, it will be
unreasonable to take away that right on the mere
asking of the applicant, particularly when the
delay is directly a result of negligence, default or
inaction of that party. Justice must be done to
both parties equally. Then alone the ends of
justice can be achieved. If a party has been
thoroughly negligent in implementing its rights
and remedies, it will be equally unfair to deprive
the other party of a valuable right that has
accrued to it in law as a result of his acting
vigilantly.
27. The application filed by the applicants lacks
in details. Even the averments made are not
correct and ex facie lack bona fide. The
explanation has to be reasonable or plausible, so
as to persuade the Court to believe that the
explanation rendered is not only true, but is
worthy of exercising judicial discretion in favour
of the applicant. If it does not specify any of the
enunciated ingredients of judicial
pronouncements, then the application should be
dismissed. On the other hand, if the application is
bona fide and based upon true and plausible
explanations, as well as reflect normal behaviour
of a common prudent person on the part of the
applicant, the Court would normally tilt the
judicial discretion in favour of such an applicant.
48 of 59
SRS 49 Judgment-w.p-7179-2021
Liberal construction cannot be equated with doing
injustice to the other party.
32. It must be kept in mind that whenever a law
is enacted by the legislature, it is intended to be
enforced in its proper perspective. It is an equally
settled principle of law that the provisions of a
statute, including every word, have to be given
full effect, keeping the legislative intent in mind,
in order to ensure that the projected object is
achieved. In other words, no provisions can be
treated to have been enacted purposelessly.
33. Furthermore, it is also a well settled canon
of interpretative jurisprudence that the Court
should not give such an interpretation to the
provisions which would render the provision
ineffective or odious. Once the legislature has
enacted the provisions of Order 22, with
particular reference to Rule 9, and the provisions
of the Limitation Act are applied to the
entertainment of such an application, all these
provisions have to be given their true and correct
meaning and must be applied wherever called for.
If we accept the contention of the learned counsel
appearing for the applicant that the Court should
take a very liberal approach and interpret these
provisions (Order 22 Rule 9 CPC and Section 5 of
the Limitation Act) in such a manner and so
liberally, irrespective of the period of delay, it
would amount to practically rendering all these
provisions redundant and inoperative. Such
approach or interpretation would hardly be
permissible in law.
34. Liberal construction of the expression
"sufficient cause" is intended to advance
49 of 59
SRS 50 Judgment-w.p-7179-2021
substantial justice which itself presupposes no
negligence or inaction on the part of the
applicant, to whom want of bona fide is imputable.
There can be instances where the court should
condone the delay; equally there would be cases
where the court must exercise its discretion
against the applicant for want of any of these
ingredients or where it does not reflect "sufficient
cause" as understood in law. (Advanced Law
Lexicon, P.Ramanatha Aiyar, 2nd Edn., 1997)
35. The expression "sufficient cause" implies
the presence of legal and adequate reasons. The
word "sufficient" means adequate enough, as
much as may be necessary to answer the purpose
intended. It embraces no more than that which
provides a plentitude which, when done, suffices
to accomplish the purpose intended in the light of
existing circumstances and when viewed from the
reasonable standard of practical and cautious
men. The sufficient cause should be such as it
would persuade the court, in exercise of its
judicial discretion, to treat the delay as an
excusable one. These provisions give the courts
enough power and discretion to apply a law in a
meaningful manner, while assuring that the
purpose of enacting such a law does not stand
frustrated.
38. Above are the principles which should
control the exercise of judicial discretion vested in
the court under these provisions. The explained
delay should be clearly understood in
contradistinction to inordinate unexplained delay.
Delay is just one of the ingredients which has to
be considered by the Court. In addition to this, the
Court must also take into account the conduct of
50 of 59
SRS 51 Judgment-w.p-7179-2021
the parties, bona fide reasons for condonation of
delay and whether such delay could easily be
avoided by the applicant acting with normal care
and caution. The statutory provisions mandate
that applications for condonation of delay and
applications belatedly filed beyond the prescribed
period of limitation for bringing the legal
representatives on record, should be rejected
unless sufficient cause is shown for condonation
of delay. The larger Benches as well as equi-
Benches of this Court have consistently followed
these principles and have either allowed or
declined to condone the delay in filing such
applications. Thus, it is the requirement of law
that these applications cannot be allowed as a
matter of right and even in a routine manner. An
applicant must essentially satisfy the above
stated ingredients; then alone the court would be
inclined to condone the delay in the filing of such
applications."
55. The above principles regulate the exercise of judicial
discretion and as stated in paragraph 38 of the said decision, delay
is just one of the ingredients which has to be considered by the
Court. In addition, the Court must also take into account the
conduct of the parties, bonafide reasons for condonation of delay
and whether such delay could easily be avoided by the applicants
acting with normal care and caution. I am of the view that
Respondents acted bonafide inasmuch as after the settlement talks
51 of 59
SRS 52 Judgment-w.p-7179-2021
and the mediation with respect to the litigation, failed, application
to bring them on record came to be filed.
56. With respect to the argument on behalf of Petitioner that the
application dated 26th March, 2021 at Exhibit 22 is not under the
provisions of Order 22 but the same is filed under the provisions of
Order 1 Rule 10 of the CPC and therefore not maintainable, it is
submitted on behalf of the Respondents that on a plain reading of
the said application, it is specifically pleaded that the deceased
Plaintiff No.1 died on 29th December, 2017 leaving behind the
proposed Plaintiffs as the only heirs. It is also submitted that after
making out a case of sufficient cause explaining the delay in
paragraph 2, it was prayed that the proposed Plaintiffs be added as
party to the suit. It is submitted that therefore the said application
is an application under Order 22 and not under Order 1 Rule 10 as
sought to be contended. It is further submitted that it is settled
position of law that even if an application under Order 1 Rule 10 is
filed, it will be unjust to non-suit the legal representatives on the
ground of technicalities and in such circumstances, an application
under Order 1 Rule 10 has to be treated as an application under
52 of 59
SRS 53 Judgment-w.p-7179-2021
Order 22 Rule 3 and be allowed. In support of his submission
learned Counsel for the Respondents relies upon the decision of the
Supreme Court in the case of Banwari Lal (Dead) By Legal
Representatives and Another V/s. Balbir Singh [2016 (1) SCC 607].
57. The Hon'ble Supreme Court in the decision of Banwari Lal
(supra) has observed that it would be unjust to non suit the
Appellants on the ground of technicalities. In the said case, no steps
were taken to bring on record the legal representatives of late
Banwari Lal either in the First Appeal or in the Second Appeal. The
Appellants viz., the legal representatives of Banwari Lal filed a Civil
Miscellaneous Application under Order 1 Rule 10 of the CPC with
Section 151 of the CPC to implead the legal representatives. It was
submitted that Order 22 of the CPC stipulates the manner in which,
legal representatives of the Plaintiffs or defendants ought to be
brought on record and the prescribed procedure cannot be
circumvented by filing an application under Order 1 Rule 10 read
with Section 151 of the CPC. The Hon'ble Supreme Court in
paragraph 9 observed that provisions of Order 22 CPC are not penal
in nature and that it is a rule of procedure and substantial rights of
the parties cannot be defeated by pedantic approach by observing
53 of 59
SRS 54 Judgment-w.p-7179-2021
strict adherence to the procedural aspects of law. The Hon'ble
Supreme Court therein has quoted paragraph 26 of the decision of
Five Judge Bench of the Supreme Court in the case of Sardar
Amarjit Singh Kalra V/s. Pramod Gupta [(2003) 3 SCC 272] which
is quoted 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. 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
substantial justice 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
54 of 59
SRS 55 Judgment-w.p-7179-2021
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..."
58. In paragraph 10, the Hon'ble Supreme Court referred to the
decision of the Supreme Court in the case of Sital Prasad Saxena
(Dead) By Lrs V/s. Union Of India And Others [(1985) 1 SCC 163]
where it was observed that rules of procedure under Order 22 of the
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, the Hon'ble Supreme Court observed in paragraph
55 of 59
SRS 56 Judgment-w.p-7179-2021
10 that the delay in bringing the legal representatives of the
deceased party on record should be condoned. That procedure is
made only to facilitate administration of justice and not to defeat
the same. The Hon'ble Supreme Court dismissed the order of the
Hon'ble High Court and allowed the applications for bringing on
record legal representatives of the Appellant by treating application
filed under Order 1 Rule 10 of CPC as an application under Order 22
Rule 3 of the CPC.
59. In the case at hand therefore, although it is submitted by
Counsel for the Respondents that application dated 26 th March,
2021 is not an application under Order 1 Rule 10, but an application
under Order 22, in my view, respectfully following the decision of
the Hon'ble Supreme Court in the case of Banwari Lal (supra), I am
of the view that whether the application is considered to be under
Order 22 Rule 3 or under Order 1 Rule 10 would not really make
any difference keeping in mind the objective that substantial justice
should not be defeated on the ground of mere technicalities.
60. Learned Counsel for Petitioner has also submitted that
Respondents No. 2 and 3 have made a false statement on oath in
56 of 59
SRS 57 Judgment-w.p-7179-2021
their application dated 26th March, 2021 in the sense that despite
the 3rd Respondent's (Original Plaintiff No. 2) application for
bringing legal heirs of deceased Plaintiff No.1 on record being
decided on 17th March, 2021, in paragraph 3 of the application
dated 26th March, 2021, it has been stated that the earlier
application of Plaintiff No.2 is pending. In my view, such a statement
cannot be said to have a bearing on the substantial nature of the
application. Moreover, it is further stated in the said paragraph that
upon the death of Plaintiff No.1, Respondents No.2 and 3 were
entitled to continue the suit but were under the impression that
Plaintiff No.2's application is already on record and therefore they
have not made an application in the suit. In my considered view,
this is also a fair and reasonable explanation to what the delay
caused in filing the subject application.
61. In view of the above discussion, I am of the view that there is
no jurisdictional error on the part of the learned trial judge nor any
illegality or perversity in the impugned order dated 30 th August
2021 passed by the Small Causes Court at Mumbai below Exhibit 22
in R.A.E. Suit No. 547 of 2015 in allowing the application dated 26 th
March 2021 on behalf of Respondents No. 2 and 3 herein. The
57 of 59
SRS 58 Judgment-w.p-7179-2021
impugned order is an interlocutory order and entertaining the
prayers of Petitioner would not further the cause of substantial
justice. The learned trial judge has fairly allowed the application for
adding Respondents No. 2 and 3 as plaintiffs in the said suit and no
case is made out for interference with the said order. Needless to
observe that if the trial court gives a decision which is adverse to
the interests of Petitioner, Petitioner can always agitate the same in
appropriate proceedings.
62. The Writ Petition is dismissed with no order as to costs. It is
made clear that this Court has not given any finding on the
facts/merits of the said suit. The reasons given herein are only for
the purposes of deciding the present Petition. All contentions/
issues on the merits of the suit are left open to be decided at the
trial of the suit, which the trial court shall decide on its own merits
in accordance with law. All the interim orders stand vacated. All
concerned are directed to comply with the directions contained in
the order dated 30th August 2021 of the Small Causes Court,
Mumbai in Suit No. 547 of 2015 by 30th June, 2022 and the trial to
58 of 59
SRS 59 Judgment-w.p-7179-2021
proceed expeditiously thereafter as per the timetable of the learned
trial court.
(ABHAY AHUJA, J.)
After this judgment is pronounced, learned Counsel for
Petitioner requests for a stay of this judgment. The request is
rejected.
(ABHAY AHUJA, J.)
59 of 59
