Jharkhand High Court

Kalipada Mahato vs Rama Dom (Kalindi) & Ors on 27 January, 2022

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             [Civil Writ Jurisdiction]
                             W.P.(C) No. 6633 of 2004
       1.Kalipada Mahato
       2.Mahapada Mahato
       3.Ganesh Mahato
       4.Fulmania Devi                                          .... .. ... Petitioners
                                     Versus
       Rama Dom (Kalindi) & Ors.                                .. ... ... Respondents
                                      ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :- Video Conferencing) .........

       For the Petitioners                    : Mr. Sachidanand Das, Advocate
                                                Mr. Om Prakash Singh, Advocate
       For the respondents                    :
                                      ......
12/ 27.01.2022.

Heard, learned counsel for the petitioners, Mr. Sachidanand Das assisted by learned counsel, Mr. Om Prakash Singh.

Learned counsel for the petitioners, Mr. Sachidanand Das has submitted that petitioners namely, 1.Kalipada Mahato, 2.Mahapada Mahato, 3.Ganesh Mahato, All sons of Late Guhiram Mahato and 4. Fulmania Devi, widow of Late Guhiram Mahato, all R/o Village- Dhobni, P.O. Lalpur, Police Station- Putki, District- Dhanbad have preferred the instant writ petition on 16.12.2004 for setting aside the impugned order dated 15.09.2004 passed by the learned Sub-Judge-IV at Dhanbad in Title Suit No.95/1996 whereby learned Sub-Judge has rejected the substitution petition of legal heirs of deceased defendant No.1 Fucha Dom.

Learned counsel for the petitioners, Mr. Sachidanand Das has further submitted that fresh notice has been issued upon proposed/ substituted legal heirs of respondent no.1 vide order dated 31.08.2021 passed by this Hon'ble Court, which have been validly served upon them, as it appears from the order dated 29.11.2021 and this Hon'ble Court has adjourned the matter for four weeks awaiting the appearance of respondent nos.1(ii) and 1(iii) as respondent no.1(i) namely, Bijola Domin died long back so as to appear before this Court, but even after valid service of notice upon respondent nos.1(ii) and 1(iii) they have not appeared, as such, this Court may set aside the impugned order and referred the matter before the learned trial court for its adjudication.

Learned counsel for the petitioners, Mr. Sachidanand Das has further submitted that in view of the Order XXII Rule 10 CPC, the entire Title Suit cannot be abated if the legal heirs of one of the defendants have not been substituted when other contesting defendants are already on record, as such, in view of the judgment passed by the Apex Court in the case of Sardar Amarjit Singh Kalra vs. Pramod

Gupta, reported in 2003 (3) SCC 272, the impugned order may be set aside.

Paras 27 and 37 of the aforesaid judgment may profitably be quoted hereunder:-

"27. The principles laid down or the ratio of the decision in Ram Sarup's case(supra) will not apply to the case on hand. As indicated earlier, the real decision in a given case would ultimately depend very much on the facts of that particular case, the nature of the right sought to be asserted and relief sought. The suit was filed in that case by some four persons asserting a right of pre- emption claiming that they are the nearest collaterals of the Vendor and heirs according to rule of succession. The sale was found to be of one entire set of properties to be enjoyed by two sets of Vendees in equal shares. Since the position of law was held to be clear that there can be no partial pre-emption and that pre- emption is the substitution of the pre-emptor in place of the Vendee, the Court felt that two conflicting decrees were bound to result, if the appeal has to be allowed in favour of the other remaining appellants, in the teeth of the abatement of the appeal as against the deceased appellants and the decree in respect of him having become final. It is for this reason that the decree in that case was held to be a joint one and, therefore, when a part of it has become final by reason of abatement, the entire appeal was held to have abated, relying upon the decision in Jhanda Singh Vs. Gurmukh Singh & Ors. (supra). The Constitution Bench, which rendered the decision in Ram Sarup's case (supra), was neither concerned with any reconciliation of conflicting views on the point nor declare the correct position of law on this aspect, for the simple reason that the matter was before the Constitution Bench only on the question of constitutional validity of Section 15 of the Punjab Pre-emption Act, 1913, and that the appeal (C.A.No.214/1961) was dismissed as having abated in view of the earlier unreported decision dated 10.4.2002 in C.A. No.344/1956 (Jhanda Singh's case) rendered by a Bench of three learned Judges, without any further reference either to the other decisions striking a different note or undertaking any exercise, of the nature now before us in the light of a specific reference made therefor.

37. The observations, if any, made in this judgment about the respective claims of parties are merely for the sake of indicating the serious and disputed nature claims between the parties necessitating an effective adjudication on merits and not to be construed as any expression of opinion on any such claims which the High Court shall be at liberty to deal with and dispose of on their own merits, after hearing both parties, in accordance with law.

Learned counsel for the petitioners, Mr. Sachidanand Das in support of his submission has placed reliance upon the judgment passed by the Apex Court in the case of Banwari Lal (D) By Lrs. & Anr. vs. Balbir Singh, reported in 2016 (1) SCC 607 at Para-9 which may profitably be quoted hereunder :-

9. Provisions of Order 22 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 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."

(emphasis supplied)

Considering the submissions of the learned counsel for the petitioners and looking into the facts and circumstances of the case, it appears that impugned order cannot sustain in the eyes of law as even if the legal heirs of one of the defendants have not been substituted, the abatement can be passed against the legal heir of deceased- respondent/ defendant, but entire title suit cannot be abated. Apart from this there is provision to set aside abatement, but taking harsh view for such procedure of law, the substantial right cannot be defeated.

Under the aforesaid circumstances, the impugned order dated 15.09.2004 passed in Title Suit No.95 of 1996, passed by learned Sub-Judge-IV, Dhanbad is hereby set aside.