Telangana High Court
Ahmed Ali Khan vs Mrs. Tayaba Khatoon on 16 July, 2024
*THE HON'BLE SRI JUSTICE SUJOY PAUL
+ CIVIL REVISION PETITION Nos.1391, 1402, 1404, 1493, 1507
and 1521 of 2024
%16-07-2024
#Ahmed Ali Khan & others.
...Petitioners
vs.
$Tayab Khatoon and others.
... Respondents
!Counsel for the Petitioners : Sri Ali Farooque.
^Counsel for Respondent No.1: Sri Prabhakar Sripada, Senior Counsel
representing Sri Gundapu Giridhar.
<Gist :
>Head Note :
? Cases referred
1. 1964 AIR (Mysore) 293
2. 2008 AIR SCW 6025
3. AIR 2002 SUPREME COURT 1201
4. 2004 AIR (Bombay) 359
5. (1993) 4 SCC 41
6. (2010) 9 SCC 385
7. 2010 (3) ALD 358
8. 2008 (1) ALD 253
9. 2003 (3) SCC 485
10. 2003 (2) SCC 111
11. (2010) 8 SCC 329
2
SP, J
CRP_1391_2024_&_batch
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
CIVIL REVISION PETITION Nos.1391, 1402, 1404, 1493, 1507 and
1521 of 2024
Between:
Ahmed Ali Khan & others.
...Petitioners
vs.
Tayaba Khatoon & others.
... Respondents
JUDGMENT PRONOUNCED ON: 16.07.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
___________________
SUJOY PAUL, J
3
SP, J
CRP_1391_2024_&_batch
THE HONOURABLE SRI JUSTICE SUJOY PAUL
CIVIL REVISION PETITION Nos.1391, 1402, 1404, 1493,
1507 and 1521 of 2024
COMMON ORDER:
These batch of petitions filed under Article 227 of the
Constitution contains a singular legal question and therefore, on
the joint request of the parties, the matters were analogously
heard and decided by this common order.
2. C.R.P.Nos.1391, 1402 and 1404 of 2024 are directed against
common order dated 08.02.2024 passed in I.A.Nos.1264, 1265
and 1263 of 2023 in O.S.No.876 of 2017 respectively and
C.R.P.Nos.1493, 1507 and 1521 of 2024 are directed against
common order dated 08.02.2024 passed in I.A.Nos.1266, 1268
and 1267 of 2023 in I.A.No.514 of 2017 in O.S.No.876 of 2017
respectively, both on the file of XVII Additional Senior Civil Judge,
City Civil Court at Hyderabad.
3. The singular question deserves consideration is that when
admittedly on the date of institution of suit, the sole defendant
was not alive, but legal representatives of deceased defendant
contested the matter to a great extent, whether the plaintiff's
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application for substitution of legal representatives, condone delay
and setting aside abatement were entertainable?
Factual backdrop:-
4. The admitted facts between the parties are that the plaintiff
instituted a suit in O.S.No.876 of 2017 for eviction and recovery of
arrears of rent. After receipt of summons, vakalath has been filed
on behalf of respondent/defendant. During the course of
proceedings, the written statement and counter affidavits were
also filed. Further, three witnesses i.e., P.Ws.1 to 3 also entered
into witness box on behalf of plaintiff.
5. The only defendant in O.S.No.876 of 2017 was Mohd.
Masood Ali Khan. The Chief Affidavit of one Maqsood Ali, S/o.
Mohd. Masood Ali Khan/main defendant was filed on 21.07.2023.
On 11.08.2023, the learned counsel for Mohd. Masood Ali Khan
filed a memo and for the first time informed that the sole
defendant in the suit died on 05.03.1989.
6. The plaintiff after coming to know about the death of the sole
defendant, preferred the aforesaid applications for substitution of
legal representatives etc., and clearly stated that the plaintiff was
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not aware about the death of Mohd. Masood Ali Khan and
therefore, the delay in filing the applications for substitution of
legal representatives may be condoned and abatement may be set
aside.
7. The legal representatives filed reply and prayed for rejection
of the above interlocutory applications.
8. The Court below after hearing both the parties passed the
impugned common orders dated 08.02.2024 and allowed all the
aforesaid applications by holding that the plaintiff was not aware
about the death of the main defendant and came to know about it
only when the aforesaid memo dated 11.08.2023 was filed. Thus,
after considering certain legal pronouncements, all the
applications were allowed by the Court below. The Court below
gave a specific finding that the factum of death of original
defendant was not known to the plaintiff. Had it been known, the
plaintiff would have filed the suit against the legal representatives
or else would have filed appropriate application for substitution of
legal representatives with quite promptitude. Since plaintiff
gathered knowledge about the death of the sole defendant only on
11.08.2023, the delay deserves to be condoned.
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Contention of the petitioners/legal representatives:-
9. The bone of contention of the learned counsel for the
petitioners/legal representatives is that on the date of institution
of the suit itself, the sole defendant was not alive. Thus, suit
proceedings itself became a nullity in the eyes of law. Therefore,
the question of substitution of legal representatives, condoning the
delay and setting aside the abatement does not arise. Learned
counsel for the legal representatives/petitioners herein fairly
submitted that although, inadvertently the legal representatives
contested the suit for seven years, filed written statement,
additional written statement etc., all that will not make much
difference because the suit itself is a nullity and not maintainable.
It is argued that the name of main defendant was Mohd. Masood
Ali Khan, whereas, one of the legal representative, who is son of
sole defendant is having similar name i.e., Maqsood Ali Khan.
Therefore, under confusion, he contested the matter for almost
seven years and later realized that his father was the main and
sole defendant in O.S.No.876 of 2017.
10. In order to bolster the submission that suit against dead
person is a nullity, reliance is placed on judgment of Mysore High
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Court in the case of C. Muttu vs. Bharath Match Works,
Sivakasi 1. In the said judgment, the following judgments were
also considered: (1) Savitramma vs. Nanjundappa {25 Mys LJ 113},
(2) Mohun Chunder Koondoo vs. Azeem Gazee Chowkeedar {12
Suth W.R. 45: 3 Beng LR AC 233}, (3) Arunachalam Chettiar, 30
IND Cas 679 {AIR 1916 Madras 440, (4) Rasa Goundan v.
Pichamuthu Pillai, {42 IND Cas 539: AIR 1918 Madras 794 (1)}, (5)
Rampratab Brijiuohandas vs. Qowrishankar Kashiram {85 Ind Cas
464: AIR 1924 Bom 109}, (6) Bejoy Chand Mahatap Bhadur vs.
Amulya Charan Mitra {24 Ind Cas 112: AIR 1914 Calcutta 895} (7)
Municipal Corporation of Karachi vs. Baradiojumoo Mughal {AIR
1946 Sind 20} and (8) Hira Lal vs. Kalinath {AIR 1962 Supreme
Court 199}. Furthermore, reliance is also placed on the judgments
of the Supreme Court in the cases of Perumon Bhagvathy
Devaswom vs. Bhargavi Amma 2 and Ram Nath Sao @ Ram
Nath Sahu vs. Gobardhan Sao 3 and also on the judgment of
Bombay High Court in the case of Ram Dulari vs. Maniram Ram
Prasad Tiwari 4
1964 AIR (Mysore) 293
2008 AIR SCW 6025
AIR 2002 SUPREME COURT 1201
2004 AIR (Bombay) 359
SP, J
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Stand of the plaintiff/respondent No.1:
11. The argument of the plaintiff is that when original suit was
filed, the factum of death of sole defendant was not known to the
plaintiff. The legal representatives contested the matter for seven
long years, filed counter, additional affidavit and participated in
the proceedings without any demur. It is only on 11.08.2023 by
filing memo, they informed about the death of Mohd. Masood Ali
Khan (sole defendant). The plaintiff promptly filed aforesaid
applications. Learned counsel for the plaintiff/respondent No.1
placed reliance on the judgments of Supreme Court in the case of
Karuppaswamy vs. C. Ramamurthy 5 and Jai Singh vs.
Municipal Corporation of Delhi (MCD) 6 and on the judgments of
High Court of Andhra Pradesh in the case of Vemuri Krishna
Prasad vs. Ghorpade Radha Bai 7 and G. Venkataram Rao vs.
Syed Abdul Rasheed 8. On the strength of these judgments, it is
submitted that in a case of this nature, where factum of death was
not known to the plaintiff and defendant participated in the
proceedings with eyes opened, the legal representatives can be
(1993) 4 SCC 41
(2010) 9 SCC 385
2010 (3) ALD 358
2008 (1) ALD 253
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permitted to be substituted when factum of death was brought to
the notice of the plaintiff only on 11.08.2023.
12. The parties confined their arguments to the extent indicated
above. The parties were heard at length and relevant record is
perused.
FINDINGS:-
13. The judgment of Mysore High Court in the case of C. Muttu
(cited supra) shows that the Court has considered certain previous
judgments and after taking into account the provisions of the
Indian Limitation Act, 1908, opined that the suit was a nullity.
14. To counter the aforesaid submission, heavy reliance is
placed on the judgment of Apex Court in the case of
Karuppaswamy (cited supra). This judgment was followed by the
judgments of High Court of Andhra Pradesh in the cases of
Vemuri Krishna Prasad and G. Venkataram Rao (both cited
supra). The Apex Court in the judgment of Karuppaswamy (cited
supra) compared Section 22 of the erstwhile Indian Limitation Act,
1908, with Section 21 of the Limitation Act, 1963. The relevant
part reads as under:
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"3. ...That provision under the Indian Limitation Act, 1908,
was Section 22 which read as follows : -
(1) Effect of substituting or adding new plaintiff on defendant:
Where, after the institution of a suit, a new plaintiff or defendant
is substituted or added, the suit shall, a regards him, be deemed
to have been instituted when he was so made a party.
(2) Nothing in Sub-section (1) shall apply to a case where a party
is added or substituted owing to an assignment or devolution of
any interest during the pendency of a suit or where a plaintiff is
made a defendant or a dependant is made a plaintiff.
Now under the Limitation Act, 1963, it is Section 21 which
reads as follows :
21. Effect of substituting or adding new plaintiff or defendant. -
(1) Where after the institution of a suit, a new plaintiff or
defendant is substituted or added, the suit shall, as regards him,
be deemed to have been instituted when he was so made a party:
Provided that where the court is satisfied that the omission
to include a new plaintiff or defendant was due to a mistake
made in good faith it may direct that the suit as regards such
plaintiff or defendant shall be deemed to have been
instituted on any earlier date.
(2) Nothing in Sub-section (1) shall apply to a case where a party
is added or substituted owing to assignment or devolution of any
interest during the pendency of a suit or where a plaintiff is made
a defendant or a defendant is made a plaintiff."
(Emphasis Supplied)
15. A simple reading of para No.4 of judgment in the case of
Karuppaswamy (cited supra) makes it clear like cloudless sky
that proviso of Sub-section (1) of Section 21 of the Limitation Act,
1963, is an addition and has made all the difference. No provision
like aforesaid 'proviso' was available in the Indian Limitation Act,
1908. It is noteworthy that the judgment of Mysore High Court in
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the case of C. Muttu (cited supra) and other judgments considered
in the said case were based on the erstwhile Indian Limitation Act,
1908, which was not pregnant with any such 'proviso' which
became part of Section 21(1) of the Limitation Act, 1963. Thus,
the judgment of Mysore High Court in the case of C. Muttu (cited
supra) cannot be pressed into service. It is trite that a judgment
is an authority about what has been actually decided and not
about something which is logically flowing from it (see Dr. (Mrs.)
Chanchal Goyal vs. State of Rajasthan 9). It is equally settled
that a singular different fact of subsequent case or a different legal
provision may make a world of different or may change the
precedential value of the judgment (see Bhavnagar University vs.
Palitana Sugar Mill Pvt. Ltd 10).
16. After comparing the provisions of the Indian Limitation Act,
1908 and the Limitation Act, 1963, the Apex Court in the case of
Karuppaswamy (cited supra) has poignantly held as under in
para Nos.4 and 5:
"4. A comparative reading of the proviso to Sub-section (1)
shows that its addition has made all the difference. It is
also clear that the proviso has appeared to permit correction
of errors which have been committed due to a mistake made
2003 (3) SCC 485
2003 (2) SCC 111
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in good faith but only when the court permits correction of
such mistake. In that event its effect is not to begin from the
date on which the application for the purpose was made, or
from the date of permission but from the date of the suit,
deeming it to have been correctly instituted on an earlier date
than the date of making the application. The proviso to Sub-
section (1) of Section 21 of the Act is obviously in line with the
spirit and thought of some other provisions in Part III of the
Act such as Section 14 providing exclusion of time of
proceeding bona fide in court without jurisdiction, when
computing the period of limitation for any suit, and Section
17(1) providing a different period of Limitation starting when
discovering - a fraud or mistake instead of the commission of
fraud or mistake. While invoking the beneficient proviso to
Sub-section (1) of Section 21 of the Act an averment that
a mistake was made in good faith by impleading a dead
defendant in the suit should be made and the court must
on proof be satisfied that the motion to include the right
defendant by substitution or addition was just and proper,
the mistake having occurred in good faith. The court's
satisfaction alone breaths life in the suit.
5. ... It was rather observed that the plaintiff could have know
the date of the death of the first defendant only by the counter
filed to IA 265/75. Normally, if he had known about the date
of death of the defendant, he would have filed the suit in the
first instance against his heirs and legal representatives. The
trial court has also opined that the plaintiff was ignorant as to
such death and that is why he filed IA 265/75 under Order 22
Rule 4 of C.P.C. The High Court too has recorded a finding
that there was nothing to show that the plaintiff was
aware of the death of the first defendant and yet knowing
well about it, he would persist in filing the suit against a
dead person. In conclusion, the learned Single Judge action
it clearly showed that he had acted in good faith. Thus the
High Court made out a case for invoking the proviso to Sub-
section (1) of Section 21 of the Act in favour of the plaintiff-
respondent. Sequally, the High Court found no difficult in
allowing IA 785/75 permitting change of the provision
whereunder IA 265/75 was filed and in allowing IA 265/75
ordering the suit against the heirs and legal representatives of
defendant No.1 to be dating bak to 14.11.74, the date on
which the plaint was originally presented."
(Emphasis Supplied)
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17. The Apex Court in Karuppaswamy (cited supra) gave its
stamp of approval to the order of High Court whereby, the
applications for condoning delay, setting aside abatement and
substitution of legal representatives were allowed. The High Court
of Andhra Pradesh in the cases of Vemuri Krishna Prasad and G.
Venkataram Rao (both cited supra) followed ratio decidendi of
Karuppaswamy (cited supra).
18. In the judgment, in the case of G. Venkataram Rao (cited
supra), the Court at para No.8 held as under:
"8. The learned Counsel representing the appellant had placed
had placed strong reliance on the decisions of the Apex Court
in Karuppaswamy and Ors. v. C. Ramamurthy AIR 1993
SC 2393 SC 2324 and also Munshi Ram v. Narsi Ram . In the
light of these decisions and also in the light of the peculiar
facts and circumstances, this Court is of the considered
opinion that negativing the relief only on the ground that the
suit was originally instituted as against a dead person, though
voluntarily the person otherwise interested in the litigation
came on record, and that too, when he had not chosen even to
enter into the witness box, may not be just and proper. In the
light of the same, inasmuch as the main ground of negativing
the relief being that the suit was originally instituted, may be
by a bona fide mistake as against a dead person, the same in
a way had been rectified since the son of the said dead person
voluntarily came on record and had put in a contest by filing a
written statement but had not chosen to enter into the
witness box, the findings recorded by the Courts below are
hereby set aside and the matter is remanded to the Court of
first instance to give opportunity to both the parties to let in
further evidence if they choose to do so and decide the matter
in accordance with Law answering all the Issues."
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19. The factual backdrop of case of G. Venkataram Rao (cited
supra) has a great similarity with the present matter for the
singular reason that in the said case also, the suit was originally
instituted against a dead person. The son of said deceased person
voluntarily came on record and contested the matter by filing
written statement. The suit was dismissed by the trial Court
holding that it is instituted against a dead person is a nullity and
the said judgment was affirmed when it was taken in the appeal
before the I Additional District Judge, Ranga Reddy (Appellate
Court therein). The aforesaid judgment of the trial Court treating
the suit as nullity and judgment of affirmation by the Appellate
Court became subject matter of challenge in the case of G.
Venkataram Rao (cited supra). The High Court of Andhra
Pradesh set aside the judgment and decree of the Courts below
and allowed the Second Appeal and remanded the matter to the
Court of first instance to proceed further. Thus, there is no
manner of doubt that the singular question involved in this matter
is no more res integra and curtains are finally drawn by
authoritative pronouncement in the case of Karuppaswamy (cited
supra).
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20. In the case of Perumon Bhagvathy Devaswom (cited supra),
the respondent died during the pendency of appeal. There was no
notice of death to the appellant and 394 days delay was condoned
by holding that appellant was unaware of death of the respondent.
Hence, the appellant cannot be punished for such ignorance. This
judgment does not help the present petitioners/legal
representatives.
21. Similarly, in the case of Ram Nath Sao (cited supra), the
Apex Court opined that the term 'sufficient cause' used in Section
5 of the Limitation Act, 1963, and Rule 9 of Order XXII of Civil
Procedure Code must receive a liberal construction, so as to
advance substantial justice when no negligence or inaction or
want of bona fide is imputable to a party. It was poignantly held
that condonation of delay of such nature is a rule and refusal
must be an exception.
22. In the instant case, in the applications preferred by the
plaintiff it was clearly pleaded that she came to know about the
death of the sole defendant only when memo dated 11.08.2023
was filed. The delay was properly explained and mistake was
bona fide one made in good faith by impleading a deceased
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defendant in the suit originally instituted. The Court below after
considering the aforesaid relevant aspects allowed all the said
applications.
23. The interference by this Court under Article 227 of the
Constitution can be made on limited grounds. For this purpose,
the learned counsel for the plaintiff/respondent No.2 placed
reliance on the judgment of Apex Court in the case of Jai Singh
(cited supra). This is trite that interference under Article 227 of
the Constitution can be made if order is passed by the Court
having no jurisdiction, it suffers from palpable procedural
impropriety or a patent illegality. Another view is possible, is not
a ground for interference. The power cannot be exercised like 'bull
in china shop' to correct the errors of judgment of Court acting
within the limitation of its jurisdiction (see Shalini Shyam Shetty
vs. Rajendra Shankar Patil 11).
24. In the considered opinion of this Court, the view taken by
the Court below while passing the impugned common orders is in
consonance with the principle laid down by the Apex Court in the
case of Karuppaswamy (cited supra) and the judgments of High
(2010) 8 SCC 329
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Court of Andhra Pradesh in the cases of Vemuri Krishna Prasad
and G. Venkataram Rao (both cited supra). Hence, these
petitions are liable to be dismissed.
25. In the result, all these Civil Revision Petitions are dismissed.
There shall be no order as to costs. Miscellaneous applications
pending, if any, shall stand closed.
_______________________
JUSTICE SUJOY PAUL
Date: 16.07.2024
Note:
L.R. marked.
B/o-GVR
