M Maringmei Khuripou vs Maringmei Acham
2021 Latest Caselaw 51 Mani

        Digitally
MAYAN signed by
GLAMBA MAYANGLAM
        BAM CHANU
                                                                                      Item No. 5
                                                                    (Through Video Conferencing)
M       NANDINI
        Date:                    IN THE HIGH COURT OF MANIPUR
CHANU 2021.03.15                           AT IMPHAL
NANDINI 15:21:54
        +05'30'
                                     CRP(CRP Art. 227) No. 29 of 2019

           M Maringmei Khuripou, aged about 55 years, S/o Late
           Makuchung of Lamdan Kabui Village, P.O.& P.S. Loktak
           Project, Churachandpur District, Manipur - 795124.
                                                                                   ...Petitioner

                                                 - Versus -


           Maringmei Acham, aged about 61 years, S/o Late Maringmei
           Thaitoungam of Lamdan Kabui Village, P.O. & P.S. Loktak
           Project, Churachandpur District, Manipur - 795124.
                                                                                 ...Respondent


                                          BEFORE
                      HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR

           For the petitioner         :      Mr. N. Umakanta, Advocate
           For the respondent         :      Mr. S. Abung, Advocate
           Date of hearing &
           order                      :      11.03.2021

                                            O R D E R

[1] A piquant point of procedure arises for consideration in this revision

filed under Article 227 of the Constitution - what would be the impact and

consequence of the legal representative of a deceased sole plaintiff seeking

impleadment in that capacity only in the appeal filed by such sole plaintiff against

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 1 an interlocutory order passed in the suit without taking steps to come on record as

the legal representative of such sole plaintiff in the suit itself, resulting in its

abatement by operation of law.

[2] The facts leading up to the present revision, in a nut shell:

Maringmei Thaitoungam filed Original (Declaratory) Suit No. 3 of 2014 before the

learned Civil Judge (Senior Division), Churachandpur, seeking declaration of his

right and title as the existing Chief of Lamdan Kabui Village or, in the alternative, a

declaration that he was still the Chief of Lamdan Kabui Village. He also sought a

declaration that order dated 20.01.2014 passed by the Deputy Commissioner,

Churachandpur, was null and void. By the said order, the Deputy Commissioner

had approved the claim of Maringmei Khuripou, the petitioner in this revision, to

be the Khullakpa (Chief) and ex-officio Chairman of the village. In addition to

these declarations, Maringmei Thaitoungam sought a permanent injunction

restraining Maringmei Khuripou and his agents from felling trees in the village.

[3] Maringmei Thaitoungam also filed a miscellaneous application in the

suit, in Judl. Misc. Case No. 3 of 2014, seeking a temporary injunction restraining

Maringmei Khuripou from acting as the Chief of Lamdan Kabui Village; from

cutting down trees in the village; from collecting house-tax from the villagers; and

to maintain status quo, as he, Maringmei Thaitoungam, was the Chief of Lamdan

Kabui Village, during the pendency of the suit. However, by order dated

03.07.2014, the Trial Court dismissed the said injunction application. Aggrieved

thereby, Maringmei Thaitoungam filed an appeal in Civil Misc. Appeal No. 2 of

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 2 2014 before the learned District Judge, Manipur West, Imphal. This appeal was

filed in August, 2014. While so, Maringmei Thaitoungam died on 07.09.2014.

Thereupon, his son, Maringmei Acham,the respondent in the present revision, filed

an application, in Judl. Misc. Case No. 31 of 2014 in Civil Misc. Appeal No. 2 of

2014, under Order XXII Rule 3 CPC seeking to come on record as the legal

representative of the deceased appellant, viz., Maringmei Thaitoungam.

[4] By order dated 18.09.2014, the learned District Judge, Manipur

West, Imphal, allowed the said L.R. application. Maringmei Khuripou thereupon

filed an application, in Judl. Misc. Case No. 33 of 2018, under Order XLVII Rule 1

CPC seeking review of the said order dated 18.09.2014. His contention therein

was that Maringmei Thaitoungam had sought protection of his personal rights by

way of the suit and the miscellaneous application filed therein and in

consequence, the right to sue based on such personal causes did not survive after

his death and as such, Judl. Misc. Case No. 31 of 2014 was devoid of merit.

However, by order dated 12.09.2018, the learned District Judge, Churachandpur,

who was then seized of the matter, held that no grounds were made out for

review of the earlier order dated 18.09.2014 and dismissed the review application.

Aggrieved, Maringmei Khuripou filed CRP[C.R.P. Art. 227] No. 55 of 2018 before

this Court assailing the aforestated order dated 12.09.2018 passed in Judl. Misc.

Case No. 33 of 2018. This revision was disposed of by order dated 03.10.2018,

directing the Appellate Court to take up the preliminary issue as to whether the

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 3 legal heir of the deceased sole plaintiff would be entitled to prosecute the appeal

in Civil Misc. Appeal No. 2 of 2014.

[5] At this stage, it may be noted that Maringmei Khuripou and one

Kamei Terence had separately filed Original Suit No. 39 of 2014 in December,

2014, after the death of Maringmei Thaitoungam, seeking a permanent injunction

restraining Maringmei Acham and one Pamei Dimpu from making claims of being

the Chief/Khullakpa/Chairman and Secretary respectively of Lamdan Kabui Village.

Therein, they also filed a miscellaneous application, in Judl. Misc. Case No. 68 of

2014, seeking a temporary injunction on the same lines. The said application was

allowed by the learned Civil Judge (Senior Division), Churachandpur, on

01.08.2015. Aggrieved thereby, Maringmei Acham preferred Civil Misc. Appeal No.

2 of 2015 before the learned District Judge, Churachandpur.

[6] Thereafter, Maringmei Acham filed Judl. Misc. Case No. 65 of 2016

before the learned District Judge, Churachandpur, seeking joint hearing of Civil

Misc. Appeal No. 2 of 2014 and Civil Misc. Appeal No. 2 of 2015. By order dated

27.11.2018, the learned District Judge, Churachandpur, allowed this application

for joint hearing. Aggrieved thereby, Maringmei Khuripou and Kamei Terence filed

CRP[C.R.P. Art. 227] No. 1 of 2019 before this Court. The said revision was

disposed of, vide order dated 15.04.2019, directing the learned District Judge,

Churachandpur, to consider and dispose of the issue relating to the maintainability

of Civil Misc. Appeal No. 2 of 2014 before deciding the appeals. Pursuant to this

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 4 direction, the learned District Judge, Churachandpur, took up the preliminary issue

of the maintainability of Civil Misc. Appeal No. 2 of 2014.

[7] The contention of Maringmei Khuripou before the learned District

Judge, Churachandpur, was that Civil Misc. Appeal No. 2 of 2014 no longer

survived for considerationon merits after the death of Maringmei Thaitoungam

who had filed the said appeal, as the right to sue did not survive. It was his case

that the prayer of Maringmei Thaitoungam in Judl. Misc. Case No. 3 of 2014 filed

in O.S. No. 3 of 2014 was personal in nature and the question of his legal

representative stepping into his shoes did not arise as the said legal representative

could neither claim himself to be the Chief nor claim to be continuing as Chief in

the pending suit, when he was not appointed or functioning as such earlier. He

further contended that the said legal representative had to file a separate suit to

claim his rights, if any, and could not seek relief in the pending appeal.

On the other hand, Maringmei Acham argued that his claims were

not personal in nature but were based on his legitimate rights as the legal heir to

the Chiefship/Khullakpaship of Lamdan Kabui Village. It was his case that, as per

the customs and traditions of the Kabui tribe, upon the death of the Chief of the

village, the eldest of the family clan of the deceased Chief would become the Chief

of the village.

[8] After consideration of these rival stands, by order dated 13.05.2019,

the learned District Judge, Churachandpur, opined that Maringmei Acham was a

necessary party as he was entitled to inherit the properties and rights of his father

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 5 and had a direct interest in the pending appeal case. The learned District Judge

accordingly held that Civil Misc. Appeal No. 2 of 2014 and Civil Misc. Appeal No. 2

of 2015 filed by Maringmei Acham were maintainable. The cases were accordingly

adjourned for further hearing on merits. It is against this order that the present

revision was filed by Maringmei Khuripou.

[9] By order dated 06.06.2019 passed in this revision, this Court stayed

the proceedings in Civil Misc. Appeal No. 2 of 2014.

[10] Be it noted that this revision, as framed, proceeded on the plea of

Maringmei Khuripou that the cause of action in the suit and the application filed

therein were personal in nature to Maringmei Thaitoungam and therefore, after

his death, Maringmei Acham, his son, had no subsisting right to sue in relation to

the personal claims of his father. According to him, Maringmei Acham necessarily

had to file an independent suit if he wished to claim any rights with regard to the

Chiefship of Lamdan Kabui Village. He pointed out that Maringmei Acham never

functioned as the Chief of the village and therefore, the question of his seeking a

status quo order with regard to being continued as the Chief of the village, during

the pendency of the suit, did not arise. He further pointed out that Maringmei

Thaitoungam, the sole plaintiff, had himself admitted that he was no longer

functioning as the Chief of the village and had sought interim relief to allow him to

continue as such, and therefore, Maringmei Acham, his son, could not step into his

shoes so as to continue the suit or the appeal filed by his father against the

dismissal of his temporary injunction application in the said suit.

CRP[C.R.P. ART. 227] No. 29 of 2019                                           Page 6
 [11]         It is however significant to note that the suit prayer of Maringmei

Thaitoungam was not only to declare him as the existing or continuing Chief of

Lamdan Kabui Village but also to declare the order dated 20.01.2014 passed by

the Deputy Commissioner, Churachandpur, to be null and void. By the said order,

the Deputy Commissioner had approved and validated the claim of Maringmei

Khuripou that he was the new Khullakpa/Chief of Lamdan Kabui Village. In effect,

the claim of Maringmei Thaitoungam to the said post stood rejected by this order.

Unless the said order is set aside, the question of Maringmei Acham seeking any

hereditary rights under his deceased father in relation to the Chiefship of the

village would not arise. To that extent, Maringmei Acham had an interest in and

the right to continue the suit proceedings as the cause of action in relation to the

Deputy Commissioner's order dated 20.01.2014 still remained alive for him even

after the death of Maringmei Thaitoungam. Therefore, the plea of Maringmei

Khuripou that the cause of action in the suit stood extinguished in its entirety

upon the death of Maringmei Thaitoungam, the sole plaintiff, cannot be accepted.

[12] That being said, a crucial aspect may now be noted. The entire focus

of Maringmei Atcham seems to have been only upon the appeal proceedings and

no steps whatsoever were taken in the suit proceedings after the death of

Maringmei Thaitoungam. Significantly, he was the sole plaintiff in the said suit,

filed in August, 2014. He died on 07.09.2014 itself. Order XXII Rule 3(1) CPC

mandates that upon the death of a sole plaintiff with the right to sue surviving,

the Court shall cause the legal representative of such deceased plaintiff to be

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 7 made a party, upon an application made in that behalf, and proceed with the suit.

Order XXII Rule 3(2) CPC however provides that if no application is made under

Order XXII Rule 3(1) CPC within the time limited by law, the suit shall abate so far

as the deceased plaintiff is concerned. As per Article 120 of the Limitation Act,

1963, an application to bring on record the legal representative of a deceased

plaintiff would lie within 90 days from the date of the death of such plaintiff and if

no steps are taken within this time frame, the suit would abate. As per Article 121

of the Limitation Act, 1963, an application to set aside such abatement would lie

within 60 days thereafter and if no steps are taken within that time frame, an

application would have to be filed for condoning the delay in seeking the setting

aside of the abatement of the suit. This being the procedure contemplated by law,

it is relevant to note that Maringmei Acham apparently chose to file an application

to be brought on record as the legal representative of his father, Maringmei

Thaitoungam, only in the appeal filed by his father against the dismissal of his

temporary injunction application and not in the suit proceedings.

[13] When this Court raised this issue during the hearing on 23.02.2021,

Mr. S. Abung learned counsel appearing for Maringmei Acham, sought time to

ascertain as to whether any application has been filed by his client to be brought

on record as the legal representative of the deceased sole plaintiff in the main suit

and if so, the result of the said application. Learned counsel then filed an affidavit

on 02.03.2021 stating that he had found no relevant record in the Court of the

learned Civil Judge (Senior Division), Churachandpur, and that the record of

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 8 Original (Declaratory) Suit No. 3 of 2014 was available at the District Judge's Court

at Churachandpur, along with the appeal record. He further stated that he looked

into the said case record and found that no application had been filed to bring the

legal representative on record after the death of the sole plaintiff. According to

him, the learned counsel at the Trial Court informed him that it is impossible to file

an application when the record of the main suit had been called for by the

Appellate Court. Surprisingly, he then went on to state that, on 24.02.2021, he

had filed an application in the suit, in Judl. Misc. Case No. 13 of 2021, under Order

XXII Rule 3 CPC, seeking to implead Maringmei Acham as the plaintiff upon the

death of Maringmei Thaitoungam, his father. A copy of the said application was

also placed on record.

[14] Needless to state, the very fact that this LR application was received

and numbered by the Trial Court despite the absence of the record of the original

suit, which is admittedly lying in the District Court, Churachandpur, completely

negates the contention of Mr. S. Abung, learned counsel, that the filing of such a

LR application earlier was impossible owing to the absence of the original record in

the Trial Court. Further, the contention of Mr. S Abung, learned counsel, that it is

'the legal bounden duty' of the Trial Court to implead the LR after the case record

in the suit is returned is contrary to the provisions of Order XXII Rule 3(1) CPC,

which require an application being made in that regard before the Trial Court

permits the LR to step into the shoes of the deceased plaintiff in a case where the

right to sue survives.

CRP[C.R.P. ART. 227] No. 29 of 2019                                            Page 9
 [15]         In effect, Original (Declaratory) Suit No. 3 of 2014 stood abated as

long back in December, 2014, itself owing to the death of the sole plaintiff, but

the appeal proceedings arising out of the dismissal of an interlocutory application

filed in the said suit continued merrily! When the main suit itself no longer

survived owing to the operation of law, whereby it stood abated, an interlocutory

order passed therein automatically ceased to exist and the examination of the

validity of such an order in appeal proceedings by a higher Court would not arise.

When the substratum, being the suit proceedings, stood extinguished owing to

abatement by operation of law upon the death of the sole plaintiff therein, the

superstructure of the miscellaneous appeal filed against an interim order in the

said suit must also fall to the ground. The question of considering the validity of

such an order on merits in the year 2018 therefore did not arise. When this Court

required the Appellate Court to look into the maintainability of the appeal, this

fundamental aspect of the matter should have been examined but unfortunately,

the Appellate Court chose to examine the issue only on the merits of the order.

[16] Mr. S. Abung, learned counsel, sought to place reliance on case law

to contend that the order under revision is sustainable in law notwithstanding the

aforestated fatal technicality. However, this Court finds that the judgments relied

upon do not further his case. The decision of the Gauhati High Court in Shri Sabu

Kehie & Anr. Vs. Shri Sesei (deceased) & Anr. [Civil Revision Petition No.

9(K)of 2011, dated 02.05.2017] was a case where the plaintiffs had filed the

suit to declare a particular sale deed null and void. The first defendant in the suit

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 10 was the vendor under the said sale deed while the second defendant was the

vendee. While so, the first defendant died and his LRs were not brought on record

within time. The suit thereafter came to be dismissed on the ground of

abatement. On these facts, the Gauhati High Court held that the cause of action

still survived against the second defendant, the vendee under the sale deed, and

therefore, the Trial Court ought to have been liberal and given precedence to

doing substantial justice instead of giving precedence to procedural law. The fact

situation in the case on hand is entirely different and the ratio laid down in this

decision has no relevance presently.

[17] Similarly, the decision of the Gauhati High Court in LA Collector Vs.

Shambhu Deb Barma [Civil Miscellaneous Case No. 261 of 1983 (in M.A.

(F) No. 58 of 1978), dated 30.08.1983] is also of no relevance. This case

turned upon the question as to who should file a LR application upon the death of

a party. On facts, the Court found that though the appellant had failed to file such

an application, the legal representatives of the deceased respondent had chosen

to do so. It was accordingly held that the same sufficed for the purposes of Order

XXII Rule 3 CPC. The decision of the Supreme Court in Mohammad Arif Vs.

Allah Rabbul Alamin and Ors. (Civil Appeal No. 567 of 1982, dated

15.02.1982) also does not help him. That was a case where the estate of the

deceased appellant was duly represented by another party who was already on

record and, therefore, the proceedings did not abate. That is not the situation in

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 11 the present case, as Maringmei Thaitoungam was the sole plaintiff in the suit and

the same stood abated long ago due to his death and no steps being taken.

[18] The Supreme Court had occasion to spell out the legal position in

relation to Order XXII CPC in Mangluram Dewangan Vs. Surendra Singh and

Others: [(2011) 12 SCC 773]. The relevant paragraph reads thus:

'10. A combined reading of the several provisions of Order 22 of the Code makes the following position clear:

a) When the sole plaintiff dies and the right to sue survives, on an application made in that behalf, the court shall cause the legal representative of the deceased plaintiff to be brought on record and proceed with the suit.

b) If the court holds that the right to sue does not survive on the death of the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code.

c) Even where the right to sue survives, if no application is made for making the legal representative a party to the suit, within the time limited by law (that is, a period of 90 days from the date of death of the plaintiff prescribed for making an application to make the legal representative a party under Article 120 of the Limitation Act, 1963), the suit abates, as per Rule 3(2) of Order 22 of the Code.

d) Abatement occurs as a legal consequence of (i) court holding that the right to sue does not survive; or (ii) no application being made by any legal representative of the deceased plaintiff to come on record and continue the suit. Abatement is not dependent upon any formal order of the court that the suit has abated.

e) Even though a formal order declaring the abatement is not necessary when the suit abates, as the proceedings in the suit are likely to linger and will not be closed without a formal order of the court, the court is usually to make an order recording that the suit has abated, or dismiss the suit by reason of abatement under Order 22 of the Code.

f) Where a suit abates or where the suit is dismissed, any person claiming to be the legal representative of the deceased plaintiff may apply for setting aside the abatement or dismissal of the suit under Order 22 Rule 9(2) of the Code. If sufficient cause is shown, the court will set aside the abatement or dismissal. If however such application is dismissed, the order

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 12 dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code.

g) A person claiming to be the legal representative cannot make an application under Rule 9(2) of Order 22 for setting aside the abatement or dismissal, if he had already applied under Order 22 Rule 3 for being brought on record within time and his application had been dismissed after an enquiry under Rule 5 of Order 22, on the ground that he is not the legal representative.'

[19] It is thus well settled that abatement takes place by operation of law

and does not require the passing of an order to come into effect. [See also

Perumon Bhagvathy Devaswom Vs. Bhargavi Amma (Dead) by LRs. and

Ors. {(2008) 8 SCC 321} and Budh Ram and Ors. Vs. Bansi and Ors.

{(2010) 11 SCC 476}]. Further, Order XXII Rule 9 CPC makes it clear that

abatement has a rather serious effect as it bars a fresh suit on the same cause of

action where a suit abates. In the light of the aforestated settled legal position,

the consequences of the failure of Maringmei Acham to take steps in the suit after

his father's death are clear and very much fatal to the maintainability of the

appeal filed against the dismissal of his father's temporary injunction application in

the said suit.

[20] At the cost of repetition, the contention of Mr. S. Abung, learned

counsel, that no steps could have been taken to implead the legal representative

of the deceased sole plaintiff in Original (Declaratory) Suit No. 3 of 2014 as the

record thereof had been called for by the District Court at Churachandpur, merits

no consideration whatsoever. Such an application has now been filed before the

Trial Court long after the abatement of the suit and was accepted and numbered

despite the fact that the record of the suit is not available even as on date with

CRP[C.R.P. ART. 227] No. 29 of 2019 Page 13 the Trial Court. Having now filed such an application successfully, it is not open to

Maringmei Acham to contend that he could not have taken steps earlier to seek

impleadment as the legal representative of his father, the deceased sole plaintiff in

the suit, within the time prescribed by law.

[21] On the above analysis, this Court finds that the Appellate Court

grievously erred in not taking note of this vital aspect while considering the

maintainability of Civil Misc. Appeal No. 2 of 2014 and in limiting itself only to the

merits of the matter. Procedure, no doubt, is only the handmaid of justice but

cannot be ignored to the extent of dealing with an appeal on merits when the very

basis for the order under appeal stood demolished. As already stated supra, once

the suit itself stood abated by operation of law, the question of considering the

validity of the order dismissing a temporary injunction application filed in the said

suit did not arise.

The civil revision petition is accordingly allowed holding that Civil

Misc. Appeal No. 2 of 2014 on the file of the learned District Judge,

Churachandpur, no longer survives for consideration on merits owing to the

abatement of the suit itself.

In the circumstances of the case, there shall be no order as to costs.

                                                         CHIEF JUSTICE
FR

Bipin/Sandeep


CRP[C.R.P. ART. 227] No. 29 of 2019                                            Page 14