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Kunhikayyumma and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberS.A. No. 743 of 1978-D
Judge
Reported inAIR1984Ker184
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 22, Rules 3, 4 and 9(2)
AppellantKunhikayyumma and anr.
RespondentUnion of India (Uoi) and ors.
Appellant Advocate P.K. Shamsuddin and; A.A. Abdul Hassan, Advs.
Respondent Advocate Adv. General and; P.K. Musa, Adv.
DispositionAppeal dismissed
Cases ReferredJ. Bibi v. Satish Chandra Bhattacharya
Excerpt:
.....applicant fails to prove facts making out sufficient reason for not applying to bring into record legal representatives of deceased within stipulated time court not powerless to render justice when satisfied with circumstances of case - lower appellate court approached facts of case by adhering to such principle - finding of sufficient cause reached on proper application of correct legal principle - no error apparent of face of judgment of lower court which would justify interference in second appeal - second appeal not liable to be entertained. - - the government pleader on behalf of the plaintiff-respondent in appeal pointed out that the court had recorded the date of death of the original defendant as 11-1-1972. if that is the correct date of death it is obvious that the..........a case where a gov-ernmental agency is a party to a litigation, an application for impleading the legal representatives was not made in due lime permitted under law, namely, on or before 7-3-1972. the suit has to be treated as abated on 8-3-1972. on 17-3-1972 an application for impleadment of the legal representatives was filed as i. a. no. 657 of 1972. it was supported by an affidavit by the government pleader of the state of kerala who was appearing on behalf of the plaintiff. notice was ordered on the 18th mar. 1972. it was posted to 27-3-1972. the court made the following endorsement on the petition:'heard. not opposed. hence allowed. note in the plaint.'the direction of the court was duly carried out. the additional defendants, the legal representatives of the deceased defendant,.....
Judgment:

K. Sukumaran, J.

1. The question involved in the second appeal relates to a procedural matter. There is no controversy on the merits of the suit from which the second appeal has arisen. The suit was one filed by the Union of India for recovery of a sum paid as loan under a scheme for affording financial assistance to evacuees from Malaya. The defence was that the payment was a gratuitous one. That plea was rejected by the trial court. It has not been pursued in appeal. The liability under the decree, if it is otherwise sustainablc, could not, therefore, be in doubt or dispute.

2. The facts relevant for the question to be considered in the second appeal are the following:-- In the course of the suit which was instituted in 1969 the original defendant died on 8-12-1971. Perhaps understandably in a case where a gov-ernmental agency is a party to a litigation, an application for impleading the legal representatives was not made in due lime permitted under law, namely, on or before 7-3-1972. The suit has to be treated as abated on 8-3-1972. On 17-3-1972 an application for impleadment of the legal representatives was filed as I. A. No. 657 of 1972. It was supported by an affidavit by the Government Pleader of the State of Kerala who was appearing on behalf of the plaintiff. Notice was ordered on the 18th Mar. 1972. It was posted to 27-3-1972. The court made the following endorsement on the petition:

'Heard. Not opposed. Hence allowed. Note in the plaint.'

The direction of the court was duly carried out. The additional defendants, the legal representatives of the deceased defendant, entered appearance on 31-8-1972. It was not merely a case of for-mally entering appearance; they took active part in the proceedings. A written statement was filed by the additional defendants on 30-8-1972. The contentions of the original defendant were adopted therein. Nearly two years thereafter OH 14-6-1974 an additional written statement was filed raising the contention that the suit has abated. Apparently on the basis of the same, an additional issue No. 5 was raised reading: 'Whether the additional defendants are liable for the plaint claim?' The trial court disposed of the question in para 9 of its judgment. It held:

'Admittedly defendants 2 to 4 are the legal heirs of the deceased and they have been impleaded as the legal representatives of the deceased. Therefore, they arc liable.....'

3. The contention based on abatement appears to have been more pointedly urged in appeal before the lower appellate court. The appeal was dismissed. In the course of the hearing of the appeal there was dispute even as regards the date of death of the original defendant. The Government Pleader on behalf of the plaintiff-respondent in appeal pointed out that the court had recorded the date of death of the original defendant as 11-1-1972. If that is the correct date of death it is obvious that the application for impleadment of the legal representatives is well within time allowed in that behalf. The lower appellate court was, however, not inclined to investigatethis controversy, for, according to it, the suit was 'not bad' even on the assumption that the sole defendant was dead on 8-12-1971. It took the view following the principle discernible from the decisions in Bachan Ram v. Gram Panchayat Jonda, AIR 19?1 Punj & Har 243, and Delhi Development Authority v. Raghu-nath Sahai Gupta, AIR 1973 Delhi 262, that the application I. A. No. 657 of 1973 could be treated as an application to set aside abatement as well. An attempt to distinguish the aforesaid cases on the ground that the petition in the present case was only one filed under Section 151 of Civil P. C. did not, rightly according to me, appeal to that court. The court observed that 'the mere labelling of the application as one under Section 151 will not detain the court from doing justice if the prayer contained in the application attracts the applicability of O. 22, R. 9, C. P. C.' The main grounds urged in the court below to attack the trial court's decree were: (i) No notice was issued to the legal representatives before I. A. No. 657 of 1972 seeking impleadment was al-lowed. (ii) The application itself did not contain sufficient grounds justifying an order setting aside the abatement. On the first contention the lower appellate court observed that the application had not been opposed. The possibility of the trial court having heard counsel for the original defendant was indicated. It further observed that there was no provision providing for the issue of notice to the proposed legal representatives before they are impleaded.

4. On the latter question, the court below took the view that it was not necessary that the affidavit in I. A. No. 657 of 1972 'itself should contain the necessary averment to set aside the abatement'. It postulated the principle that should govern a disposal of the application in the following words:

'If the materials on record and the circumstances in the case can satisfy the court that the abatement can be set aside, the court should not hesitate to allow the application even though no specific averment is made to that effect in the application.'

The facts and materials were thereafter analysed by that court. It referred to an earlier application on 11-1-1972 filed by the Government -- I. A. No. 448 of 1972 -- in which it was stated that the Government Pleader was not able to tracethe full name and address of the legal representatives of the deceased defendant and that therefore one month's time from 4-2-1972 should be granted for taking steps to implead the legal representatives. That petition was allowed on 23-2-1972. On 14-3-1972 another petition -- I. A. No. 613 of 1972 -- was filed with a similar prayer for extension of time. That too was allowed. Taking into consideration the aforesaid circumstances, the court below felt that there was nothing wrong in allowing I. A. No. 657 of 1972 which, as already stated above, had to be treated as an application to set aside the abatement as well. The appeal was accordingly dismissed.

5. The correctness of the view takenby the courts below was attacked withmuch vehemence and tenacity by counsel for the appellants. Decisions fromvery early times were exhaustively referred to in the course of such prolongedarguments. Such decisions spanned theperiod from 1920 to 1981, the first onewhen the decision in Lachmi Narain v.Muhammad Yusuf, (1980) ILR 42 All540 : (AIR 1920 AH 284), was renderedand the last when the decision in Stateof Gujarat v. Sayed Mohd. Baquir ElEdross. AIR 1981 SC 1921.

6. That the court should not attach undue importance to the frame of the petition, has been fairly established by a series of decisions touching that aspect. The lower appellate court has already referred to the decisions in AIR 1971 Punj & Har 243 and AIR 1973 Delhi 262 '(supra). The Punjab decision has considered earlier decisions on the point --Kirpa Ram v. Bhagat Chand, AIR 1928 Lah 746, which in turn had followed the decisions in Badlu v. Mt. Naraini. AIR 1924 Lah 424, and Ata-ur-Rahman v. Mashkur-un-Nisa, AIR 1926 Lah 474. The gist of the decisions was summarised by Suri, J. in that decision in the following words:

'It was held that an application made to bring the legal representatives of the deceased-defendant on record after the time prescribed therefor by law should ordinarily be treated as an application to set aside the abatement of the suit which has taken place even though it is not asserted that the delay was due to any reasonable cause. The evidence about the sufficient cause for the delay can be produced in the appellate Court and all that is necessary is that the Court should feelsatisfied that discretion should be exercised in favour of the party seeking the setting aside of the abatement.'

Following the decisions in AIR 1928 Lah 746 and AIR 1920 All 284 : ILR 42 All 540 (supra) the Orissa High Court took the same view in Babaji Padhan v. Mst. Gurubara Padhani, AIR 1962 Orissa 94. Trivedi. J. in Sri Ram Prasad v. State Bank of Bikaner, AIR 1972 All 456, observed :

'.....in a case where an applicantapplies for condoning the delay and for bringing on record the legal representatives, a prayer of setting aside the abatement is implicit in the prayer for substitution.'

Firm Gabrulal v. Court of Wards. AIR 1933 Nag 85 is yet another case accepting the above principle. I am in agreement with the views so expressed in the aforesaid decisions.

7. A dissent is voiced by Sohan Nath Modi, J. in the decision reported in Durgalal v. Asharafilal, AIR 1973 Raj 332, on this aspect, particularly referring to the decisions in AIR 1971 Punj & Har 243, AIR 1926 Lah 746, AIR 1926 Lah 474 and AIR 1924 Lah 424 (supra) The learned Judge observed (at p. 334) :

'I therefore do not find myself in agreement with the decision of the Punjab and Haryana High Court in Bachan-ram's case, AIR 1971 Puni & Har 243 (supra) that an application made after the expiry of the period prescribed by law of limitation to bring on record the legal representatives should be treated as an application for setting aside an abatement.....'

In support of the view so taken the general observations of the Supreme Court contained in Union of India v. Ramcharan, AIR 1964 SC 215 and the decisions in Janakinath Singha Ray v. Nirodbaran Ray, AIR 1930 Cal 422, and Kundanmal Uttamchand v. Jwalaprasad, AIR 1963 Madh Pra 183, were referred to. The general observations of tha Supreme Court do not in any way militate against the view taken by the Punjab and Haryana High Court and the other decisions noted above. The view expressed in the Calcutta and Madhya Pradesh decisions has to be understood in the background of the peculiar facts disclosed in those cases, which revealed a culpable conduct and negligence of the petitioner. I cannot persuade myself toenthusiastically adopt the unnecessarily restricted view, which has only the effect of deflecting the course of justice on the basis of technical contentions in matters of a procedural nature. To do so would be to forget a salutary principle indicated by Boven, LJ long time back when he observed that 'the rules of procedure are only hand maids of justice.' The court below was fully justified in treating the application as one in which a prayer for setting aside the abatement was implicit. To yield to a different view, and confining attention to a literal understanding of the statements in the petition would be to permit a monstrous hyper-technicality to prevail over substantial justice. I have no hesitation to discountenance such a plea.

8. Counsel for the appellants next attempted to emphasize the fact that the application was bereft of any averment which would enable a court to detect even a vestige of 'sufficient cause' in justification of the delay in making the application. Even if there are justifiable grounds alleged to make out a sufficient cause, that would not be sufficient cause for an order setting aside the abatement. The facts alleged have to be established. When the facts are not even alleged, let alone established, no court of law can set aside an abatement, which automatically sets in on the death of the defendant, after the expiry of the period made mention of in Article 120 of the Limitation Act. Instances where the courts have dismissed the application on the ground of non-establishment of such sufficient cause were referred to in support of the submission of counsel. The decisions included those in Durgalal v. Asharafilal, AIR 1973 Rai 332, and Sadassiva Rauji Gaitonde v. Jose Joaquim Fonseca, AIR 1976 Goa 11. Two decisions of the Bombay High Court and a decision of the Calcutta High Court were considered by Shukla, Addl. J. C. in the aforesaid decisions. The Bombay decisions -- Lakshmi-bai Jagannath Joshi v. Yeshwant Vithul Bagkar. AIR 1922 Bom 449 (1), Sitha-ram Dattaji Rangnekar v. Anant Hari Kamat Agarkar, AIR 1927 Bom 156 --were distinguished and the Calcutta decision -- J. Bibi v. Satish Chandra Bhatta-charya, AIR 1924 Cal 633 -- was dissented from. In the Rajasthan decision the respondent died on 6-4-1966. The appellant came to know about it on 12-4-1966. The actual application was, however, made only on 14-7-1966.Though that application was opposed on the ground of limitation no steps were taken for setting aside the abatement till 2-11-1966. Even the application for setting aside the abatement filed on 2-11-1966 did not make out 'any reason' much less any sufficient cause for the delay. The decision rendered in the above factual background is clearly not applicable to the facts of the present case.

9. It is perhaps unnecessary to discuss all the old decisions in view of the elucidation of the principle behind these provisions by an authoritative pronouncement of the Supreme Court rendered, after the filing of the second appeal, in R. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer. Kurnool, AIR 1979 SC 1393; the passage occurring at page 1402 from the judgment of Desai, J, could be usefully extracted :

'The first limb of this rule audi alte-ram partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. As a corollary to this rule it is provided in the Code of Civil Procedure that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. It may be that the legal representatives in a given situation may be personally liable or the estate of the deceased in their hands would be liable and in either case a decision one way or the other, adverse or favourable to them, cannot be recorded unless they are given an opportunity of being heard. Order 22, Rules 3 and 4 codify these procedural safeguards translating into statutory requirement one of the principles of natural justice,'

10. The original rigid view taken on the scope of Order 22, Rules 3 and 4 had been subjected to change in the course of time. That is indicated in para 29 of the aforesaid judgment. Referring to the earlier decisions rendered by it it was observed ;

'The principle deducible from these decisions is that not only the interest of the deceased was adequately taken careof by those who were on record but they had the opportunity to put forth their case within permissible limits, Neither the case of the deceased nor of his successors-in-interest has gone by default. In other words, the principle is that if the deceased had as a party a right to put forth his case, those likely to be affected by the decision on death of the deceased had the same opportunity to put forth their case and even if from a large number having identical interest some are not brought on record those who are brought on record would adequately take care of their interest and the cause in the absence of some such would not abate. In legal parlance this procedure affords an opportunity of being heard in all its ramifications before a decision on the pending lis is taken.'

Development of similar liberal trend has been indicated in the later portions of the judgment.

11. If the cardinal principle behind the provisions as explained by the Supreme Court is understood there cannot be any difficulty in upholding the view taken by the courts below. It should be remembered that this is not a case where the legal representatives of the original defendant could possibly have any grievance whatever, that they had no effective say in the adjudicatory process before the court. They had entered appearance and filed the written statement putting forward their defences To the plaint claim. They had fully participated in the trial of the suit. The technical contention was put forward only nearly two years after the filing of their first written statement. The salutary object of conforming to the principles of natural justice underlying the provisions of Order 22, Rules 3 and 4, had been fully satisfied in the present case.

12. The decision of the Supreme Court in Union of India v. Ram Charan. AIR 1964 SC 215, on which reliance was placed by counsel for the appellants, is not as absolute as may be thought of at first sight. No doubt, the insistence on there being sufficient cause for setting aside the abatement had been highlighted in that decision. However, a close reading of para 12 of the judgment, particularly the last sentence thereof, would point out that the position is not one of absolute inflexibility. That Clearly is the effect of the following passage contained therein:

'If no such facts are alleged, none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicant's not continuing the suit by taking necessary steps within the period of limitation.'

In other words, even if an applicant does not allege or prove facts making out a sufficient reason for not making the application for bringing on record the legal representatives of the deceased within the stipulated time, the court would not be powerless to render justice when it is satisfied that circumstances of the case are obviously such which would justify a finding of sufficient cause to be taken by the court. The lower appellate court also has approached the facts of the case by adhearing to such a principle, as will be evident from the extract in its judgment referred to in paragraph 4 supra. The circumstances have been considered from that angle. The finding of sufficient cause has been reached on a proper application of the correct legal principle and an exhaustive consideration of the circumstances in the case. I am in full agreement with the approach and conclusion taken by the court below on this aspect. There is no error whatever in the judgment of the court below, much less a substantial error of law which alone would justify interference in second appeal.

13. A similar approach was made by the Calcutta High Court in J. Bibi v. Satish Chandra Bhattacharya, AIR 1924 Cal 633, Mookerjee, J. observed in that case:

'.....the petitioners by presenting aproper application under Order 22, Rule 9 (2), C. P. C., and by showing sufficient cause could obtain an order setting aside the abatement.....by reason of the application for substitution being readily allowed by the learned Munsif and no objection having been taken by the Opposite Party at any stage of the protracted proceedings that followed in his Court, the petitioners were deprived of an opportunity to make an application under Order 22, Rule 9 (2) C. P. C., and they were misled by the course of the proceedings that were adopted.'

The court did not hesitate to interfere with an order even in the attenuated re-visional jurisdiction under Section 115, C.P.C. when, in such circumstances, abatement was held to be fatal by the court below. The facts of the present case have substantial similarity to those in the above decision.

14. In the light of the aforesaid discussion the contentions urged in thesecond appeal fail. I dismiss the secondappeal. There will be, however, no orderas to costs.


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