Madhya Pradesh High Court
Ramcharan Gupta vs Rajendra Kumar on 3 February, 2023
Author: Gurpal Singh Ahluwalia
1 M.P. No.5759/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF FEBRUARY, 2023
MISC. PETITION No. 5759 of 2019
BETWEEN:-
RAMCHARAN GUPTA S/O SHRI JAGESHWAR
PRASAD GUPTA, AGED ABOUT 55 YEARS,
OCCUPATION: AGRICULTURIST, R/O
VILLALGE MANPUR, POLICE STATION AND
TAH. MANPUR, DISTT. UMARIYA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ANIL KUMAR DWIVEDI- ADVOCATE)
AND
1. RAJENDRA KUMAR S/O LATE
NATTHULAL SONI, AGED ABOUT 47
YEARS, R/O VILLAGE MANPUR, POLICE
STATION AND TAH. MANPUR, DISTT.
UMARIYA (MADHYA PRADESH)
2. JAGDISH PRASAD GUPTA (SINCE DEAD)
THROUGH IMPLEADED LEGAL
REPRESENTATIVES. (a) SMT.ASHA DEVI
GUPTA W/O LATE JAGDISH PRASAD
GUPTA, R/O MACHCHALIYA DARWAJA
IN FRONT OF BEDHADAK HOUSE
MOHALLA UPARATI, POLICE STATION
CITY KOTWALI REWA (MADHYA
PRADESH)
(b). VISHAMBHAR GUPTA S/O LATE
JAGDISH PRASAD GUPTA R/O
MACHCHALIYA DARWAJA IN FRONT
OF BEDHADAK HOUSE MOHALLA
UPARATI, POLICE STATION CITY
2 M.P. No.5759/2019
KOTWALI REWA (MADHYA PRADESH)
(c). NEERAJ GUPTA S/O LATE JAGDISH
PRASAD GUPTA R/O MACHCHALIYA
DARWAJA IN FRONT OF BEDHADAK
HOUSE MOHALLA UPARATI, POLICE
STATION CITY KOTWALI REWA
(MADHYA PRADESH)
(d). DHEERAJ GUPTA S/O LATE JAGDISH
PRASAD GUPTA R/O MACHCHALIYA
DARWAJA IN FRONT OF BEDHADAK
HOUSE MOHALLA UPARATI, POLICE
STATION CITY KOTWALI REWA
(MADHYA PRADESH)
(e). SMT.SANGITA GUPTA D/O LATE
JAGDISH PRASAD GUPTA R/O
MACHCHALIYA DARWAJA IN FRONT
OF BEDHADAK HOUSE MOHALLA
UPARATI, POLICE STATION CITY
KOTWALI REWA (MADHYA
PRADESH)
(f). SMT.SARITA GUPTA D/O LATE
JAGDISH PRASAD GUPTA R/O
MACHCHALIYA DARWAJA IN FRONT
OF BEDHADAK HOUSE MOHALLA
UPARATI, POLICE STATION CITY
KOTWALI REWA (MADHYA
PRADESH)
3. THE STATE OF MP THROUGH THE
COLLECTOR UMARIYA,
DISTT.UMARIYA (MADHYA PRADESH)
3 M.P. No.5759/2019
4. SADHNA GUPTA W/O RAJESH GUPTA,
AGED ABOUT 40 YEARS, R/O VILLAGE
PALI PS AND TEHSIL UMARIA,
DISTRICT UMARIYA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI P.P. BUDHOLIYA- ADVOCATE )
This petition coming on for admission this day, the court passed the
following:
ORDER
This Miscellaneous Petition under Article 227 of the Constitution
of India has been filed against the order dated 24.09.2019 passed by 1st
Additional Judge, Manpur to the Court of First Civil Judge Class-I,
Umariya, District Umariya in Civil Suit No. 14-A/2010 by which the
application filed by the plaintiff/respondent No. 1 under Order 22 Rule 4
of the C.P.C. has been allowed.
2. It is submitted by the counsel for the petitioner that the defendant
Jagdish Prasad Gupta was proceeded ex-parte. Thereafter, on
07.01.2014, the legal representatives of Jagdish Prasad Gupta as well as
other defendants filed an application under Order 1 Rule 10 of C.P.C.
for impleading the legal representatives of Jagdish Prasad Gupta as
defendants. The said application was dismissed by the trial Court by
order dated 14.07.2017 thereby pointing out that the application under
Order 22 Rule 4 of C.P.C. was not filed within the stipulated period.
Therefore, not only the application filed under Order 1 Rule 10 of C.P.C
was rejected but the suit was also dismissed as abated against the
defendant-Jagdish Prasad Gupta. It is submitted by the counsel for the
petitioner that the aforesaid order passed by the trial Court attained
finality and no appeal was filed against the defendant-Jagdish Prasad
Gupta. Thereafter, on 28.10.2014, the plaintiff filed an application
under Order 22 Rule 4 of C.P.C. for bringing the legal representatives of
deceased-Jagdish Prasad Gupta on record, which was allowed by order
dated 27.04.2017. Thereafter, an application under Order 6 Rule 17
C.P.C. was filed for impleading the legal representatives of deceased
Jagdish Prasad Gupta which has been allowed by order dated
24.09.2019.
3. Challenging the order dated 24.09.2019, it is submitted by the
counsel for the petitioner that once the suit was already abated, then
without setting aside the abatement, the Court below should not have
permitted the L.Rs of deceased-Jagdish Prasad Gupta to be brought on
record. It is further submitted that order dated 27.04.2017 was also
erroneous order. If, the plaintiff was aggrieved by the order dated
14.07.2014, then either he should have filed an application for setting
aside abatement or should have challenged the said order.
4. On the contrary, the petition is vehemently opposed by the
counsel for the respondent No. 1. It is submitted that the application
filed by the petitioner under Order 22 Rule 4 of C.P.C. was within
limitation because the period of limitation would start running from the
date of his knowledge and accordingly, it is submitted that 90 days for
bringing the application under Order 22 Rule 4 of C.P.C. would start
from the date of his knowledge and not from the date of death of
defendant.
5. Heard learned counsel for the parties.
6. The undisputed fact is that the deceased-Jagdish Prasad Gupta had
expired on 03.08.2013.
7. The petitioner has not filed the complete order-sheets. From
order-sheet dated 14.07.2014, it is clear that the trial Court had rejected
the application filed by the L.Rs of the deceased defendant-Jagdish
Prasad Gupta and the suit filed by the plaintiff against Jagdish Prasad
Gupta was dismissed as abated. From the order dated 27.04.2017, it
appears that after the dismissal of the suit as abated against the
deceased-Jagdish Prasad Gupta, the plaintiff filed an application under
Order 22 Rule 4 of C.P.C. on 28.10.2014 claiming that the plaintiff
came to know about the death of deceased Jagdish Prasad Gupta on
28.07.2014. It was alleged that since the application has been filed
within a period of 90 days from the date of his knowledge, therefore, it
is within limitation. It appears that even the trial Court without verifying
the law in this regard, allowed the application by treating the application
under Order 22 Rule 4 of C.P.C. within limitation, and also did not pass
an order thereby setting aside abatement of suit against Jagdish Prasad
Gupta.
8. Thereafter, it appears that the plaintiff filed an application under
Order 6 Rule 17 of the C.P.C. for amendment in the plaint which was
marked as I.A. No. 3 on the ground that by order dated 27.04.2017, the
trial Court had permitted the plaintiff to implead the legal
representatives of deceased-Jagdish Prasad Gupta and, therefore, the
plaintiff be permitted to amend the plaint by impleading the L.Rs of
deceased-Jagdish Prasad Gupta as respondents. By the impugned order
dated 24.09.2019, the said application was allowed.
9. During the course of arguments, it was once again reiterated by
the counsel for respondent No. 1 that the period of 90 days would start
running from the date of knowledge of death of the respondent. The
submission made by the counsel for the respondent was shocking.
Inspite of indication given by this Court, the Counsel for the respondent
did not pray that the application filed under Order 22 Rule 4 CPC before
the Trial Court may also be treated as an application under Order 22
Rule 9 CPC and an application under Section 5 of Limitation Act and
sticked to his stand. It appears that the suit is being contested without
having basic knowledge of law.
10. Order 22 Rule 4 of C.P.C. reads as under:-
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
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 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 with 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.
11. Order 22 Rule 9 of C.P.C. reads as under:-
9. Effect of abatement or dismissal.--(l)
Where a suit abates or is dismissed under this
Order, no 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).
[Explanation.--Nothing in this rule shall be
construed as barring, in any later suit, a
defence based on the facts which constituted
the cause of action in the suit which had
abated or had been dismissed under this
Order.]
12. From the plain reading of Order 22 Rule 4, 9 of C.P.C., it is clear
that in case, if the application under Order 22 Rule 4 of C.P.C. is not
filed within a period of 90 days, then the suit shall stand abated and the
abatement can be set aside by assigning sufficient cause by which
plaintiff was prevented from continuing the suit.
13. Order 22 Rule 9 of C.P.C. makes it specifically clear that the
provisions of Section 5 of the Limitation Act shall apply to the
application filed under Order 22 Rule 9(2) of C.P.C.. Thus, it is clear
that by force of law, the suit would stand abated if the application for
substitution of L.Rs. of plaintiff/defendant is not filed within a period of
90 days. Thereafter, an application under Order 22 Rule 9 (2) of C.P.C.
can be filed within next 60 days and if the application under Order 22
Rule 9 (2) of C.P.C. is not filed within the stipulated period, then an
application under Section 5 of Limitation Act has to be filed for
condoning the delay in filing an application under Order 22 Rule 9(2) of
C.P.C. The date of knowledge may be a good ground for condoning the
delay in filing an application under Order 22 Rule 9 (2) of C.P.C. for
setting aside abatement, but the contention of the counsel for the
respondent No. 1 that the period of 90 days would start running only
from the date of his knowledge cannot be accepted. Similarly, it
appears that the trial Court in complete ignorance of order dated
14.07.2014, also allowed the application filed by the plaintiff on
27.04.2017 under an impression that the said application is within a
period of limitation and also did not notice that the suit filed against
Jagdish Prasad Gupta was already dismissed as abated and L.R.s of
Jagdish Prasad Gupta cannot be brought on record without setting aside
the abatement.
14. The application filed under Order 22 Rule 4 of C.P.C. dated
28.10.2014 has been placed as Annexure-P/4. In the said application it is
mentioned that the L.Rs. of defendant No. 1 had filed an application on
7.01.2014, in which the counsel for the plaintiff had expressed that he
does not have any knowledge about the death of defendant Jagdish
Prasad Gupta. It was further mentioned that a Criminal Case i.e. Case
No. 2129/2010 is pending between the parties in the Court of CJM,
Umariya and in the said case a warrant of arrest was issued on
22.05.2014 and on 28.07.2014 a report was submitted that the defendant
No.1- Jagdish Prasad Gupta had expired. Since, the plaintiff came to
know about the death of Jagdish Prasad Gupta on 28.07.2014, therefore,
the application filed on 28.10.2014 was claimed to be within a period of
limitation.
15. The trial Court while allowing the application dated 27.04.2017
loss site of the fact that the L.Rs. of deceased Jagdish Prasad Gupta
themselves had filed an application for their substitution on 07.01.2014,
therefore, the plaintiff was aware of the fact that Jagdish Prasad Gupta
had expired on 03.08.2013. In spite of that the plaintiff did not move
any application for bringing the legal representatives of deceased
Jagdish Prasad Gupta on record.
16. Further more, by order dated 14.07.2014, the civil suit filed by the
plaintiff against Jagdish Prasad Gupta was dismissed as abated. If, the
application filed by legal representatives of Jagdish Prasad Gupta is
considered, then it is clear that the plaintiff was already having
knowledge about the death of Jagdish Prasad Gupta on 03.08.2013 and,
therefore, his contention in the application that he came to know about
the death of Jagdish Prasad Gupta only on 28.07.2014 cannot be
accepted.
17. Further more, no application under Order 22 Rule 9 of C.P.C. or
under Section 5 of C.P.C. has been filed under a false impression that
the date of knowledge of the plaintiff would govern the starting point of
limitation of 90 days. It is true that the suit filed by the plaintiff was
already dismissed as abated against Jagdish Prasad Gupta on
14.07.2014, still the plaintiff had an opportunity to move an application
for setting aside abatement or for challenging the said order. None of the
options available to the plaintiff were availed. Thus, it is clear that the
trial Court while allowing the application dated 28.10.2014 filed under
Order 22 Rule 4 of C.P.C. by the plaintiff has committed a material
illegality by ignoring the order dated 14.07.2014. Even otherwise, it
appears that the trial Court did not apply the law in proper perspective.
18. The Supreme Court in the case of Mithailal Dalsangar Singh v.
Annabai Devram Kini, (2003) 10 SCC 691 has held as under :
8...... 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..........
* * *
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........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........
19. As already pointed out, neither before the Trial Court, the Plaintiff
prayed for setting aside abatement by treating the application under
Order 22 Rule 4 CPC as an application for setting aside abatement also,
but inspite of indication given by this Court, the Counsel for the
respondent did not pray for the said relief even before this Court. Under
these circumstance, the order dated 27.04.2017 cannot be given the
stamp of approval and hence, it is accordingly set aside.
20. So far as, the order dated 24.09.2019 is concerned, by the said
order, application filed by the plaintiff under Order 6 Rule 17 of C.P.C.
was allowed. Application under Order 6 Rule 17 was filed on the
ground that by amending the cause title, the plaintiff wants to implead
the legal representatives of Jagdish Prasad Gupta. In other words, the
application under Order 6 Rule 17 of C.P.C. was based on the order
dated 27.04.2017 passed by the trial Court. Once, this Court has already
held that the order dated 27.04.2017 is bad in law, then as a natural
consequence, the order dated 24.09.2019 also cannot survive.
21. Accordingly, the same is also set aside.
22. In view of the discussions above, the petition is allowed. The
orders dated 27.04.2017 and 24.09.2019 passed by the Ist Additional
Judge Manpur to the Court of Ist Civil Judge Class-I, Umariya, District
Umariya are hereby set aside.
23. The petition succeed and is hereby allowed.
(G.S. AHLUWALIA)
JUDGE
ashish
ASHISH KUMAR LILHARE
2023.02.08 18:06:53
+05'30'
