Matilal Pathak vs Nilima Das
2021 Latest Caselaw 3295 Gua

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GAHC010075792020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP(IO)/91/2020

            MATILAL PATHAK
            S/O- LATE GOPAL PATHAK, R/O- NAHATI, MOUZA- BARPETA, P.O AND P.S-
            AND DIST- BARPETA, PIN- 781301

            VERSUS

            NILIMA DAS
            W/O- LATE BIRENDRA NATH DAS, R/O- VILL- KAHIBARI, MOUZA-
            BARPETA, P.O- PATBAUSI, P.S AND DIST- BARPETA, ASSAM, PIN- 781314

            2:KAMAL DAS
             S/O- LATE BIRENDRA NATH DAS
             R/O- VILL- KAHIBARI
             MOUZA- BARPETA
             P.O- PATBAUSI
             P.S AND DIST- BARPETA
            ASSAM
             PIN- 78131

Advocate for the Petitioner   : MR. N K KALITA

Advocate for the Respondent : MR. N P BARUAH


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                             ORDER

Date : 06-12-2021

Heard Mr. NK Kalita, learned counsel for the petitioner and Mr. NP Baruah, learned counsel for the respondent.

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2] This application under Article 227 of the Constitution of India challenging the order dated 19.09.2017 and 13.11.2019 passed by the Court of the Munsiff Barpeta in Title Suit No.250/2015.

3] The brief facts of the instant case is that the petitioner who is the plaintiff had instituted a suit for declaration of his right title and interest in respect to the suit land, for delivery of khas possession as well as permanent injunction etc. The said suit was registered and numbered as Title Suit No.250/2015.

4] The sole defendant in the suit has appeared and filed the written statement and counter claim on 08.03.2016. Thereafter the suit was fixed for ADR/issues/documents on 27.03.2017 when the counsel appearing on behalf of Hirendra Nath Das (since deceased) the sole defendant filed a petition No.426/2017 informing that the sole defendant died on 23.05.2016 and prayed to abate/dismiss the suit.

5] The petitioner coming to learn about the death of the sole defendant has filed an application on 13.06.2017 bearing Pet No.865/2017 for substitution of the legal heirs of the deceased defendant. The court below vide an order dated 19.09.2017 rejected the petition No.865/2017 for substitution of the deceased defendant on the ground that the suit had already abated and as there was no application filed for setting aside the abatement the petition for substituting the legal representatives of the defendant was rejected. Surprisingly, the suit was fixed then for evidence. Thereupon, the petitioner filed three applications being pet No.141 under Order XXII Rule 9(2) for setting aside the abatement, pet No.142 for condonation of delay and pet No.143 under Order I Rule 10(2) for impleading the legal representatives of the deceased defendant, all dated 07.02.2018.

6] The learned counsel for the petitioner submits that the petition under Order 1 Rule 10(2) CPC is infact a petition under Order XXII Rule 4.

7] The Court below vide an order dated 13.11.2019 rejected all the applications and against that the petitioner has approached this Court under Article 227 of the Constitution of India.

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8] It being an admitted position of fact that under the provisions of Order XXII Rule 10(A) the counsel appearing on behalf of the sole defendant had apprised the trial Court on 27.03.2017 that the sole defendant expired on 23.05.2016. Consequently, the petitioner had filed an application on 13.06.2017 for the purpose of substituting the legal representatives of the sole defendant. However, on the ground of non filing of the application for abatement and for condonation of delay, the application for substitution of legal representatives was rejected and the suit stood abated. Thereupon, the petitioner had filed three applications showing the cause as to why it could not file an application for substitution, an application for setting aside abatement as well as the condonation application within time.

9] The Court below by adopting a hyper technical approach rejected the said applications. In this regard reference may be made to the judgment of the Supreme Court rendered in the case of Banwari Lal Vs. Balbir Singh reported in 2016 (1) SCC 607, wherein the supreme court after taking into account the judgment of the Constitution Bench of the Supreme Court in the case of Sardar Amarjit Singh Karla Vs. Pramod Gupta reported in 2003 (3) SCC 272 held as follows in paragraph No.9 and 10, which being relevant is quoted herein below:

"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. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments Page No.# 4/6

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..." (Underlining added)

10. 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 Page No.# 5/6

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.

10] From a perusal of the aforementioned judgment it would reveal that the provisions contained in Order XXII are 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 the property or any claim remained intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order XXII are not to be construed as a rigid matter of principle but must ever viewed as a flexible tool for the convenience in the administration of justice. Taking a cue to the said pronouncement of the Supreme Court and applying to the facts of the instant case it would be apparent that the court below had committed a jurisdictional error in passing the order dated 13.11.2019 as well as the earlier order dated 19.09.2017 whereby the application for substitution, the application for setting aside abatement and the application for condonation of delay was rejected by taking a very rigid hyper technical approach.

11] In view of the above the said applications being petition no.865/2017, 141/2018, 142/2018 stands allowed.

12] In view of allowing the petition No.865/2017 no order required in respect to petition No.143/2018.

13] The parties are directed to appear before the Court below on 07.01.2022.

JUDGE Page No.# 6/6

Comparing Assistant