Dewan Dewakar Rai And Ors vs Ajit Singh And Others
2021 Latest Caselaw 381 j&K

         HIGH COURT OF JAMMU AND KASHMIR
                    AT JAMMU
                                                Pronouncement on: 25 /03/2021

                                                           CR No. 124/2011
                                       IA Nos. 47/2012, 02/2017 & 148/2011

Dewan Dewakar Rai and Ors.
                                                                   Appellant(s)
                                Through: -
                    Mr. L. K. Sharma, Sr. Advocate with
                     Mr. Shwait Khajuria, Advocate.
                                      V/s
Ajit Singh and Others
                                                              .....Respondent(s)
                                 Through: -
                    Mr. Surjit Singh Andotra, Advocate.
CORAM:
               Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
                               JUDGEMENT

1. Instant revision petition is directed against order dated 01.10.2011 (for

short the impugned order) passed by the court of Munsiff, Kathua,

(for short the trial court), in terms whereof the suit of the

plaintiffs/petitioners herein is held to have abated.

FACTS

2. A suit is stated to have been instituted by the petitioners herein against

the respondents herein in the court of Munsiff Kathua, in the year

1993. Defendant No. 1/respondent No. 1 herein in the written

statement on 06.06.2005 filed before the trial court is stated to have

pleaded that the defendant No. 3 namely Ranjit Kour had expired.

Upon getting the aforesaid knowledge about the death of Ranjit Kour

petitioner herein is stated to have filed an application on 16.11.2005

supported with affidavit under Section 5 of the Limitation Act, for

bringing on record the legal heirs of the said deceased. The deceased

CR No. 124/2011

Ranjit Kour is stated to have been proceeded ex-parte in the suit on

03.03.1994. The legal heirs of the said deceased are stated to have

filed objections to the said application wherein the said legal heirs are

stated to have pleaded that Ranjit Kour died somewhere in April 1999.

3. The trial court is stated to have considered the application for bringing

on record the legal heirs and vide impugned order held that the suit is

abated against the original defendants 1 to 3.

4. The impugned order is being challenged inter-alia amongst others on

the grounds that the impugned order has been passed in complete

disregard to the provisions of Order 22 CPC read with Article 177 of

the Limitation Act.

5. It is being also contended that the trial court completely ignored the

admitted facts of the case and passed impugned order in violation of

provisions of law and against substantial justice.

6. It is being next contended that the trial court completely overlooked

provisions of Order 22 Rule 10-A CPC while passing the impugned

order which besides being illegal is, arbitrary as well. The impugned

order of abatement is stated to have been passed by the trial court

despite the fact that the right to sue survived.

7. Heard learned counsel for the parties and perused the record.

8. Perusal of the record reveals that the suit came to be instituted in the

year 1993, by the petitioners herein against respondents 1 and 2 and

predecessors of interest of respondents 3 to 37.

9. Perusal of the record further reveals that the written statement filed by

defendant No. 1/respondent No. 1 herein on 06.06.2005, wherein

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death of defendant No. 3 namely Smt. Ranjit Kour widow of Harman

Singh being survived by a son namely Mohan Singh being defendant

No. 2 in the suit and respondent No. 2 herein had been pleaded.

10. Further perusal of the record reveals that an application came to be

filed by the plaintiff/petitioner herein on 16.11.2005 for bringing on

record the legal heirs of deceased -defendant No. 3 along with an

application under Section 5 of the Limitation Act. The application

admittedly is filed within six months of time from the date of death of

the deceased was pleaded in the written statement filed by

defendant/respondents herein on 06.06.2005. The application supra

filed by the plaintiffs/petitioners herein prayed for bringing on record

the legal heirs of deceased/defendant No. 3 inasmuch as sought

condonation of delay in filing the said application under Section 5 of

the Limitation Act.

11. Indisputably, period of limitation for bringing on record legal

representatives of the defendant is 90 days and a defendant who dies

during the pendency of the suit the time thereof starts running from

the date of death of the defendant.

12. A reference to Order 22 Rule 4 of CPC here would be appropriate and

accordingly is, reproduced here under: -

22 (R-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

CR No. 124/2011

the legal representative of the deceased defendants to be made a party 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.

(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 therefore 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 with the period specified in the said Act, the Court shall, in considering the application under

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the said section 5, have due regard to the fact of such ignorance, if proved.

13. Law being settled that the Code has not prescribed any particular form

for making an application for bringing the legal heirs of

deceased-defendant on record. The application is required to be filed

in writing supported with an affidavit containing the names of the

legal representatives of the deceased-defendant and the court upon

receiving an application is required to issue a notice to the proposed

legal heirs of the deceased/defendant, offer a liberty of hearing to

them and make an appropriate order for granting or refusing the

prayer sought in the application.

14. Law being also settled that even though an application for bringing on

record the legal representatives of the deceased-defendant is distinct

and different from the proceedings to set-aside the abetment of a suit,

yet it is equally a settled law that the procedural provisions of Order

22 should be construed liberally to advance substantial justice and

moreover law is also being settled that if some of the legal

representatives of the deceased/defendant are on record, they would

represent estate of the deceased and the suit would not abate if, the

other legal representatives are not on record.

15. Keeping in view the aforesaid legal position the fact remains that the

respondent No. 2 herein is the son of the deceased Ranjit Kour and

that the defendants 1 & 3 were surviving on the date of passing of

impugned order. The suit thus could not have been ordered to have

abated against all the defendants. In the worst case scenario the suit

could have been said to have abated against the defendant No. 3 alone.

CR No. 124/2011

Trial court prima-facie seemingly proceeded in the matter

mechanically by overlooking the object underlying the provisions of

Order 22, where under the general rule is that all rights of action and

all demands whatsoever existing in favour or against a person at the

time of his death, survive to or against his representatives. Reference

to a judgement of the Supreme court titled as "Sardar Amarjit Singh

and ors. Vs. Pramod Gupta and Ors", reported in 2003 (3) SCC

301 & 305 would be relevant and germane here wherein at para 26 &

31, it has been noticed 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 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."

CR No. 124/2011

"31. But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and no hard-and-fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessities it.

16. Admittedly counsel for the plaintiffs/petitioners on coming know

about the death of the deceased/defendant No. 3 without losing any

time filed an application for bringing legal representatives on record

accompanied with an application under Section 5 of the Limitation

Act. No notice of the death earlier to that had been given by the court

to plaintiffs/petitioners. Plaintiffs/petitioners have also in explicit

terms in the application stated that they were not aware of the death of

the deceased/defendant No. 3 but came to know about the same upon

filing of written statement by the defendants on 06.06.2005.

17. The trial court in such kind of a situation ought to have considered the

application filed by the petitioners/plaintiffs under Section 5 of the

Limitation Act, along with the application for

substitution/impleadment as legal representatives treating the same as

an application for setting aside the abatement. The trial court,

however, having not done so as thus failed to exercise jurisdiction

vested in it and in the process has caused miscarriage of justice. A

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reference in this regard to the judgement of the Supreme court passed

in case titled as "Perumon Bhagvathy Devaswom Perinadu Village

vs. Bhargavi Amma and ors. reported in 2008 (8) SCC 321" also

will be pertinent wherein at Paras 4.4., 6, 8, 9, 10, it has been noticed

as under: -

"4.4. Sub-rule (5) of Rule 4 of Order 22 now gives a clear indication as to what will be sufficient cause. It provides that where the appellant was ignorant of the death of a respondent, and for that reason could not make an application for the substitution of the legal representative of the deceased respondent under Rule 4 within the time specified in the Limitation Act, 1963, and in consequence, the appeal has abated, and the appellant applies after the expiry of the period specified in the limitation Act for setting aside the abatement and also for the admission of that application under Section 5 of the Limitation 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 Limitation Act, the court shall, in considering the application under Section 5 of the Limitation act, have due regard to the fact of such ignorance, if proved."

"6. What should be the approach of the courts while considering applications under Section 5 of the Limitation Act, 1963, has been indicated in several decisions. It may be sufficient to refer to two of them. In Shakuntala Devi Jain, Vs Kuntal Kumari (at AIR 1969 SC 575 p.578, para 7) this Court reiterated the following classic statement from Krishna v. Chathappan:( ILR (1890) 13 Mad 269 p.271)

CR No. 124/2011

".......Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant."

"8. This court has also considered the scope of Rules 4 and 9 of Order 22 in several decisions. We will refer to them. In Union of India v. Ram Charan AIR 1964 SC 215, p.219, paras 8-9, this court observed thus:

"8........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 of vigilance.....

9. It is true, ....... That it is no duty of the appellant to make regular enquiries from time to time about the health or existence (of the respondent)."

"9. This Court also made some observations in Ram Charan, about the need to explain, in addition to alleging

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that the plaintiff/appellant not being aware about the death, the reasons for not knowing about the death within a reasonable time. Those observations have stood diluted in view of subsequent insertion of sub-rule (5) in Rule 4 and addition of Rule 10A in Order 22 CPC by Amendment Act 104 of 1976, requiring (i) the court to take note of the ignorance of death as sufficient cause for condonation of delay, (ii) the counsel for the deceased party to inform the court about the death of his client.

"10. In Ram Nath Sao v. Gobardhan Sao 2002 (3) SCC 195 pp.201-02, para 12, this Court observed thus:

"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 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 over-jubilation 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

CR No. 124/2011

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 terminates, 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."

18. Viewed thus, what has been observed, considered and analyzed above,

the impugned order dated 01.10.2011, passed by the court of Munsiff,

Kathua, does not survive and is accordingly set-aside. The application

of the plaintiffs filed for condonation of delay accompanied with

application for bringing on record the legal representatives of the

deceased defendant are required to be re-considered and re-visited by

the trial court while treating the application for bringing on record the

legal representatives as an application for setting aside abatement of

the suit. The re-consideration shall be accorded in accordance with

law and nothing hereinabove shall be construed to be expression of

any opinion by this court in this regard.

19. Parties to appear before the trial court on 19.04.2021.

20. Disposed of along with all connected IA(s).

(Javed Iqbal Wani) Judge Jammu 25/03/2021 "Ishaq"

                i.     Whether the Order is speaking?             Yes.
                ii.    Whether the Order is reportable?           Yes.