Jharkhand High Court

Babulal Mahto vs Harihar Maho Son Of Late Raman Mahato on 24 February, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

          IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 1021 of 2023

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1.Babulal Mahto, aged about 52 years, son of late Bandhan Mahato

2.Meghlal Mahato aged about 65 years

3.Bandhu Mahao aged about 55 years both 2 and 3 are sons of late Prasadi Mahato all residents of Village Kharti PO Dabri, PS Birni, District Giridih ...... .... ... Plaintiffs/Petitioner(s)

-- Versus --

1.Harihar Maho son of late Raman Mahato

2.Ganesh Mahato

3.Hulash Mahato

4.Amrit Mahato Respondent nos.2 to 4 sons of late Sugan Mahato

5.Bundo Mahato

6.Sanichar Mahato

7.Bansi Mahato

8.Jageshwar Mahto, respondents nos.5 to 8 sons of Badhan Mahato

9.Bishwanath Mahato

10.Suresh Mahato respondent nos.9 and 10 sons of late Chowa Mahato

11.Udo Mahato, son of late Ganpat Mahato

12.Prayag Mahato

13.Prakash Mahato, respondent nos.12 and 13 sons of Udo Mahato

14.Baldeo Mahato, son of late Jagdish Mahato

15.Baleshwar Mahto, son of late Prasadi Mahato, all residents of Village Kharti, PO Dabri, PS Birni, District -Giridih ..... Defendants/ Respondents

16.Gouri Devi, wife of Bahadur Mahto and daughter of late Bandhan Mahto resident of Village Kharti, PO Dabri, PS Birni, District Giridih ...... Proforma Defendant/ Respondent

17.Gulabi Devi, wife of Bhatu Mahto and daughter of late Bandhan Mahto Resident of Village Choubey, PO Choubey, PS Chalkusha, District Hazaribagh

18.Dukhani Devi, wife of Mandeo Mahto @ Birendra Mahto, and daughter of late Prashadi Mahto resident of Village Nawadih, PO Panchalo, PS Tisri, District Giridih

19.Sanichari Devi wife of Rajesh Prasad Verma and daughter of late

Prashadi Mahto, resident of Village Barotola, PO Gando, PS Birni, District Giridih

20.Bilwa Devi, wife of Suryadeo Mahto @ Badri Mahato daughter of late Prashadi Mahato resident of Village Kadudih, PO Padariya, PS Markacho, District Kodarma

21.Baswa Devi wife of Gobind Mahto and daughter of late Sugan Mahto resident of Village Tiruniya, Arkhango, PO Dhanwar, District Giridih

22.Nemiyan Devi wife of Sukhdeo Mahto and daughter of late Sugan Mahato resident of Village Purarekhakala, PO Khijarsota, PS Dhanwar, District Giridih

23.Kushmi Devi, wife of Hiraman Mahto and daughter of late Sugan Mahto resident of Village Bambari, PO Dabri, PS Birni District Giridih

24.Munwan Devi wife of Wakil Mahto and daughter of late Chowa Mahto resident of Village and PO Manikbad, PS Deori, District Giridih

25.Ganjari Devi wife of Kedar Mahto and daughter of late Chowra Mahto resident of Village Person, PO Khijarsota PS Dhanwar District Giridih

26.Santawa Devi wife of Prasadhi Mahto daughter of late Chowa Mahto resident of Village Arkosha (Punarwash), PO North Markacho, PS Markacho, District Koderma

27.Sumitra Devi wife of Rajendra Prasad Verma and daughter of late Chowa Mahto resident of Village Marpoka, PO Mandro, PS Deori, District Giridih

28.Most Thambhiya wife of late Sukar Mahto daughter of late Ganpat Mahto resident of Village Jaridih, PO Janta Jaridih, PS Birni, District Giridih

29.Hemiyan Devi wife of Umesh Prasad Verma daughter of late Ganpat Mahto resident of Village Karihari, PO Khorimahua, PS Dhanwar, District Giridih

30.Anita Devi wife of Mahendra Prasad Verma and daughter of late Udo Mahto resident of Village Barotola, PO Gando, PS Birni, District Giridih

31.Sumitra Devi wife of Prameshwar Prasad daughter of late Udo Mahto resident of Village Kadodih, PO Padariya, PS Markacho, District Koderma

32.Tahali Devi wife of Tarkeshwar Verma daughter of late Udo Mahto resident of Village Naitand, PO Baddiha, PS Hirodih, District Giridih

33.Rekha Devi wife of Sitaram Verma daughter of late Udo Mahto resident of Village Baddiha PO and PS Hirodih District Giridih

34.Pritam Mahto son of late Niriya Devi and Daulat Mahto resident of Village Arkasho (Puranwash) PO North Markachcho, PS Markachcho, District Kodarma

35.Sobhiya Devi wife of Barahan Mahto and daughter of late Budhan Mahto resident of Village and PO Sabalpur, PS Suriya, District Giridihi

36.Sarswati Devi wife of Gobind Prasad Kushwaha daughter of late Raman Mahto resident of Village Madhwadih, PO Keshodih, PS Birni, District Giridih

37.Sabo Devi wife of Kesho Mahto daughter of late Raman Mahto resident of Village Kailadhab, PO Khijarsota, PS Dhanwar, District Giridih

38.Rukani Devi wife of Dularchand Mahto daughter of late Raman Mahto resident of Village and PO Gando, PS Birni, District Giridih

39.Yasoda Devi wife of Basanti Prasad Verma daughter of late Raman Mahto resident of Village Purnanagar, PO Palaunjia, PS Birni, District Giridih

40.Suma Devi wife of Umesh Prasad Verma daughter of late Barhan Mahto resident of Village Lendha Simar, PO Badadiha, PS Hirodhi, District Giridih ...... Defendants /Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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          For the Petitioner(s)                 :-     Mr. P.K. Mukhopadhyay, Advocate
                                                       Mr. S.K. Murtty, Advocate
                                                       Mr. R.K. Verma, Advocate
          For the Respondent/O.P.s.             :-


07/24.02.2025       Notice upon the Opposite parties have been effected and they have not

appeared and in view of that this matter was adjourned on 15.01.2025 with a

view to provide one more opportunity to the Opposite parties, and today again,

nobody appeared on behalf of the Opposite parties on repeated calls. In view of

that, this petition is being heard in absence of the Opposite parties.

2. This petition has been filed under Article 227 of the Constitution of India

for setting aside the order dated 09.03.2022 passed by the learned Additional

Munsif-X, Giridih in Original Suit No.1423 of 2019, arising out of Partition Suit

No.91 of 2017, whereby the petition filed under Order I Rule 10(2) read with

Section 151 C.P.C filed by the petitioners has been rejected.

3. Mr. Mukhopadhyay, the learned counsel appearing on behalf of the

petitioners submits that the suit was instituted for partition. He further submits

that during pendency of the suit Mangori Devi died leaving behind her husband

Kalu Mahto and one son Tribhuwan Verma and two daughters namely Usha

Devi and Fulmati Devi. He submits that death of the defendant no.32 was not

known to the plaintiffs and in view of that, when it has come to his knowledge,

a petition was filed for substituting the name of the legal heirs/successors of

the defendant no.32 as defendant nos.32(a) to 32(d). He submits that the

learned court has dismissed the same on the ground of limitation and further it

has been pointed out that the petition has not been filed under the correct

provision of law. He submits that said order may kindly be set aside.

4. In course of the argument, the rejoinder filed by the defendants to the

said amendment has been produced before the Court and from there it

transpires that the ground has been taken of not filing the petition in the

correct provision of law and the prayer for setting aside the amendment and

limitation. Thus, the death of defendant no.32 is accepted in the rejoinder filed

by the O.P.no.2 and it has been disclosed that when it has come to the

knowledge of the plaintiffs, the petition was filed for substituting the name of

the legal heirs/ successors of the defendant no.32 which has been rejected by

the learned court only on the ground that correct provision of law as well as

limitation has not been explained.

5. A justice oriented approach has to be followed in interpreting the

procedure of C.P.C is a well -settled law. A reference may be made to the case

of Chinnammal v. P. Arumugham reported in (1990) 1 SCC 513 and in

paragraph no.17 of the said judgment, it has been held as under:

"17. It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. It is in our opinion, not unreasonable to demand restitution from a person who ha purchased the property in court auction being aware of the pending appeal against the decree."

6. The reason given by the learned trial court is difficult to agree with when

an application praying for substitution has been made then even assuming that

it does not have an explicit reason for setting aside the abatement and

condoning of the delay, such prayer could be read as inherent in the prayer for

substitution in the interest of justice. A reference may be made to the case of

Mithailal Dalsangar Singh v. Annabai Devram Kini reported in (2003) 10

SCC 691, wherein it has been held that a simple prayer for bringing the legal

representative on record without specifically praying for setting aside of an

abatement or condonation of delay may in substance be construed as a prayer

for setting aside the abatement. Paragraph nos.8,9 and 10 of the said judgment

are quoted as under:

"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 actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

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 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.

10. In the present case, ... such an approach adopted by the Division Bench verges on too fine a technicality and results in injustice being done. There was no order in writing passed by the court dismissing the entire suit as having abated. The suit has been treated by the Division Bench to have abated in its entirety by operation of law. For a period of ninety days from the date of death of any party the suit remains in a state of suspended animation. And then it abates. The converse would also logically follow. Once the prayer made by the legal representatives of the deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was allowed, and the legal representatives of the deceased plaintiff came on record, the constitution of the suit was rendered good; it revived and the abatement of the suit would be deemed to have been set aside in its entirety even though there was no specific prayer made and no specific order of the court passed in that behalf."

(emphasis supplied)

7. Order-XXII Rule 10-A C.P.C speaks as under:

10A. Power of Court to request any pleader to address it.--The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader.

8. Rule 10-A originally was not with the C.P.C, but it was inserted in the

C.P.C in the year 1976 and need of that has been acknowledged by the Hon'ble

Supreme Court in the different decisions and the first decision was Gangadhar

v. Raj Kumar reported in (1984) 1 SCC 121 and thereafter Rule 10-A was

inserted in the C.P.C which cast duty upon a pleader appearing for a party to

the suit to intimate the court about the death of such party and further

procedure prescribed of notifying of the dead person. It has been pointed out

that later on the petitioners have come to know about the death of the

defendant no.32 and thereafter the petition has been filed which has been

rejected by the learned court.

9. In view of above considering that it has come to know later on about the

death of the defendant no.32 and pursuant to that the petition has been filed