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Durgalal Vs. Asharafilal (Decd.) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 46 of 1970
Judge
Reported inAIR1973Raj332; 1973()WLN474
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 3, 4 and 9
AppellantDurgalal
RespondentAsharafilal (Decd.) and ors.
Appellant Advocate N.M. Kasliwal and; V.S. Dave, Advs.
Respondent Advocate L.R. Mehta, Adv.
DispositionAppeal dismissed
Cases Referred and Ramnath Kisanlal v. Ram Gopal Bhaulal.
Excerpt:
.....presented that application simply prayed for grant of time to take necessary steps to implead the legal representatives of the deceased after finding out their names. how can such an application which even does not contain the names of the legal representatives of the deceased can be treated as an application for the substitution of the legal representatives of the deceased.;(b) civil procedure code - order 22 rule 4--application for setting aside abatement--contents of.;the question whether an application for substitution can be treated as an application for setting aside an abatement must be determined with reference to the facts stated in the application for substitution. to my mind, there is no such law which lays down that an application to bring on record the legal representatives..........asharafilal had died on 6-4-1966 and the defendant-appellants be given lime for finding out the legal representatives of the deceased and to take steps for their substitution. the learned district judge on that application ordered that the hearing of the appeal be fixed on 14-7-1966 and in the meantime, the defendant-appellants may bring the legal representatives of deceased asharafilal on record. no application was made for bringing the legal representatives of asharafi lal on record within 90 days of his death. the appeal therefore abated on the expiry of 90 days, that is, on 6-7-1966. on 14-7-1966 the defendant-appellant submitted an application with the prayer that the twosons of asharafilal namely, hariram and dr. shivram be brought on record. this application was opposed by.....
Judgment:

Sohan Nath Modi, J.

1. Asharafilal deceased and Narainlal filed a suit in the Court of Civil Judge. Bundi, against Durgalal, his sons Hiralal and Bhuvaneshwar and one Gapallal for redemption of mortgage of certain immovable property on payment of Rs. 3,280/- and, in the alternative, for the possession of the property. The learned Civil Judge by his judgment D/- 16-5-1962 passed a preliminary decree for redemption of mortgage in favour of the plaintiffs on deposit of Rs. 3,280/-in Court within a month from the date of the preliminary decree. Aggrieved by the said decree, the defendants Durga-lal and his sons preferred an appeal in the Court of the District Judge. Kotah. During the pendency of the appeal, plaintiff Asharafilal died on 6-4-1966. The defendants on 19-4-1966 moved an application along with the post-card which they had received from the two sons of Asharafilal intimating the date of Ashara-filal's death. It was mentioned in the application that Asharafilal had died on 6-4-1966 and the defendant-appellants be given lime for finding out the legal representatives of the deceased and to take steps for their substitution. The learned District Judge on that application ordered that the hearing of the appeal be fixed on 14-7-1966 and in the meantime, the defendant-appellants may bring the legal representatives of deceased Asharafilal on record. No application was made for bringing the legal representatives of Asharafi Lal on record within 90 days of his death. The appeal therefore abated on the expiry of 90 days, that is, on 6-7-1966. On 14-7-1966 the defendant-appellant submitted an application with the prayer that the twosons of Asharafilal namely, Hariram and Dr. Shivram be brought on record. This application was opposed by Hariram andDr. Shivram on the ground of limitation. The learned District Judge dismissed the application on 27-10-1966 as time-barred and dismissed the appeal as having abated. The relevant portion of the order dated 27-10-1966 passed by the learned District Judge runs as under:--

'Now it is an admitted position that Asharafilal one of the respondent-plaintiffs, died on 6-4-1966. This application being 90 days after his death is therefore clearly time-barred. That their earlier application dated 19-4-1966 for being allowed time to bring the legal representatives of Asharafilal on record without naming any of them cannot also extend the period of limitation.

Hence this appeal abates against the deceased-respondent. Again as the interest of the deceased-respondent in these proceedings is joint and indivisible and cannot be separated from the rest of the respondents, it is also impossible to proceed with the appeal.

Hence the appeal of Durgalal and others fails No order is made as to costs.'

The defendant Durgalal thereafter moved an application supported by his affidavit on 2-11-1966 for setting aside the abatement. The learned District Judge rejected that application. The present appeal is directed against the order of the learned District Judge rejecting the application for setting aside the abatement,

2. Mr. N. M. Kasliwal. the learned advocate for the defendant-appellant, has raised the following points before me in this appeal:--

1. That the application dated 19-4-1966 had been made within the period of limitation of 90 days provided by Article 120 of the Limitation Act. 1963 and that application should have been treated by the learned District Judge as one for bringing on record the legal representatives of Asharafilal under Rule 4 read with Rule 11 of Order 22. Civil P. C.

2. That the application dated 14-7-1966 for impleading the legal representatives of Asharafilal had been made while the period of limitation provided by Article 121 of the Limitation Act. 1963 had not expired and that application should have been treated by the lower appellate Court as an application for setting aside the abatement. Reliance has been placed on Bachanram v. Gram. Panchayat Jonda, AIR 1971 Punj 243.

3. That the lower Court has committed an error in holding that the appellant failed to show that he was prevented by sufficient cause from making in time the application for substitution of the legal representatives of deceased Asharafilal. and

4. That after the preliminary dtcree, the provisions of Order 22, Rule 4, Civil P. C, do not apply to cases of death of the defendant or respondent and there can be no abatement of suit or appeal in sucha case. Reliance has been placed on Pooranchaiid v. Shriram, AIR 1963 Raj 245.

3. I have heard learned counsel tor the parties and. in my opinion, the decision of the learned District Judge is right Rules 3 and 4 of Order 22. Civil P. C. lay down the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit- The rules do not say who is to present the application, but ordinarily it is the plaintiff who presents the application as by abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant

The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on various considerations inter alia whether the suit between the parties other than the deceased can be said to be properly constituted or can be said to include all [necessary parties for the decision of the controversy before the Court. That question does not arise in the present case as it has been rightly admitted that in the absence of the legal representatives of the deceased, the appeal before the learned District Judge could not have proceeded further and the abatement of appeal against Asharafilal would make the appeal Infructuous against others also. Now. Sub-rule (1) of Rule 9 of Order 22, Civil P. C. bars a fresh suit The only remedy open thereafter is to get the abatement of suit set aside under Sub-rule (2) of Rule 9 of Order 22 and this he can do by making an application for that purpose within time as prescribed under Article 121 of the Limitation Act. 1963. The Court will set aside the abatement if it is found that the applicant was prevented by any sufficient cause from continuing the suit. It may be mentioned that in view of Rule 11 of Order 22, the words 'plaintiff, 'defendant' and 'suit' in Order 22 include 'appellant', 'respondent' and 'appeal' respectively.

4. The contention of Mr. Kasliwal Is that the application dated 19-4-1966 should have been treated by the lower Court as an application for impleadingthe legal representatives of deceased Asharafilal. In my opinion, that is wholly untenable. The application dated 19-4-1966 did not even mention the names of the legal representatives of deceased Asharafilal. There was also no prayer for substitution of the legal representatives of Asharafilal as a party to the appeal. The original application dated 19-4-1966 is. of course, not on the record as it is reported to have been weeded out but it is admitted before me that by that application the Court was merely informed about the death of Asharafilal and the counsel for the defendants who presented that application simply prayed for grant of time to bake necessary steps to implead the legal representatives of the deceased after finding out their names How can such an application which even does not contain the names of the legal representatives of the deceased can be treated as an application for the substitution of the legal representatives of the deceased. The first contention of Mr. Kasliwal has no merits and it is accordingly rejected.

5. The next contention of Mr, Kasliwal is that the application dated 14-7-1966 presented with a view to implead the legal representatives of Asharafilal should have been treated by the lower Court as an application for setting aside the abatement which had automatically taken effect on the expiry of 90 days allowed by Article 120 of the Limitation Act. 1963. In support of his contention, Mr. Kasliwal has relied upon Bachanram's case, AIR 1971 Punj 243 (supra) which had followed the earlier decisions reported in AIR 1928 Lah 746; AIR 1926 Lah 474 and AIR 1924 Lah 424. It was held in the above decisions that an application made to bring the legal representatives of the deceased on record after 90 days of the death may be treated as an application to set aside the abatement under Order 22, Rule 9. Civil P. C. In my opinion, the question whether an application for substitution can be treated as an application for setting aside an abatement must be determined with reference to the facts stated in the application for substitution. To my mind, there is no such law which lays down that an application to bring on record the legal representatives of a deceased party if filed after 90 days must always be deemed to be an application to set aside the abatement. I therefore do not find myself in agreement with the decision of the Punjab and Haryana High Court in Bachanram's case. AIR 1971 Punj 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 forsetting aside an abatement. A bare reading of Rules 3 and 4 and 9 of Order 22, Civil P. C. would show that the proceedings to bring the legal representatives on record are distinct and separate from the proceedings to set aside the abatement. Sub-rule (2) of Rule 9 of Order 22 lays down that the plaintiff or the person claiming to be legal representative of a deceased plaintiff may apply for an order to set aside the abatement and 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. Their Lordships of the Supreme Court in Union of India v. Ramcharan, AIR 1964 SC 215 while dealing with the question of abatement observed:

'The consequence of abatement of suit against the defendant is that no fresh suit can be brought on the same cause of action. Sub-rule (1) of Rule 9 bars a fresh suit. The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time. The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit This means that the applicant had to allege and establish facts, which, in the view of the Court, be a sufficient reason for his not making, the application for bringing on record the legal representatives of the deceased within time. 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. It would thus appear that an application for setting aside an abatement must contain allegations showing sufficient reason for not making the application for bringing on record the legal representatives of the deceased within time. In the present case, the appellants in their application dated 14-7-1966 simply stated that Asharafilal had died on 6-4-1968, that they came to know about the death of Asharafilal on 12-4-1966. that an application was moved by them on 19-4-1966 intimating the Court about the death of Asharafilal and for allowing them time to bring on record the legal representatives of Asharafilal and that according to the information received by them. Hariram and Dr. Shivram are the heirs of Asharafilal who may be brought on record as respondents. The application dated 14-7-1966 does not fulfil the essential requirements of an application for setting aside an abatement under Order 22, Rule 9. Civil P. C. There is no mention in the application that the appeal had abated and that on account of any sufficient reason the appellants were prevented from making the application for substitution of the legal representatives of Asharafilal within time-The application dated 14-7-1966 cannot therefore be taken to be a proper application under Rule 9 of Order 22, Civil P. C. I am fortified in this view by the decisions reported in Janakinath Singha Ray v. Nirodbaran Ray. AIR 1930 Cal 422 and Kundanmal Uttamchand v. Jwalaprasad, AIR 1963 Madh Pra 183

6. I now turn to the third point raised by Mr. Kasliwal. It is contended that the appellant Durgalal was prevented by his illness from making an application for substitution of the legal representatives of Asharafilal within time It is an admitted position that the appellant Durgalal came to know on 12-4-1966 that Asharafilal had died on 6-4-1966. The appellant was entitled to move an application for substitution of the legal representatives of Asharafilal upto 6-7-1966 under Article 120 of the Limitation Act. 1963. The medical certificate produced by appellant Durgalal shows that Durgalal was sick from 29-5-1966 to 30-6-1966. The medical certificate does not show that Durgalal was sick after 6-4-1966. The application submitted by him on 14-7-1966 was contested by the respondents on the ground of limitation but still the appellant Durgalal took no steps for making an application for setting aside the abatement till 2-11-1966. There is no allegation in the application dated 2-11-1966 that there was any reason much less any sufficient reason for making the application for substitution of the legal representatives within the period of 90 days. There is also no allegation why the application for setting aside abatement was not filed earlier than 2-11-1966. The illness in the circumstances cannot be said to have prevented Durgalal from making an application for substitution within time,

7. The learned counsel next contended that the appellant Durgalal was misled by the order of the Court dated 19-4-1966. It is urged that by the order dated 19-4-1966 the appellant Durgalal thought that the Court had granted time for making an application for substitution of the legal representatives till 14-7-1966. This ground is equally without substance. The appellant Durgalal was represented by a counsel. The order dated 19-4-1966 clearly states that the appellant was to take steps for substitution of legal representatives of deceased Asharafi Lal. before the next date of hearing, that is 14-7-1966. I do not think the order-sheet dated 19-4-1966 is in any way ambiguous so as to mislead the appellant Durgalal. Mr. Kasliwal then contended that the expression 'sufficient cause' in Order 22. Rule 9, Civil P. C. should be liberally construed because the question arises in connection with the impleading of the legal representatives of the deceased-respondent. In this connection. Mr. Kasliwal placed reliance on the decision of their Lordships of the Supreme Court in AIR 1964 SC 215 (supra). The relevant observations of their Lordships in this connection are as under:--

'There is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This however does not mean that the court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant's default in applying within time for the Impleading of the legal representatives of the deceased or for setting aside the abatement.' (para 8).

I do not think that these observations In any way advance the case of the appellant. In the present case, appellant Durgalal came to know as early as 12-4-66 that Asharafilal had died on 6-4-66. The information about the death of Asharafilal was conveyed by his sons who sent a post-card to appellant Durgalal. It is admitted that the post-card contains the names of both the sons of Asharafilal. In spite of all that, the appellant Durgalal took no steps for substitution of the heirs of deceased Asharafilal within prescribed time of 90 days. No sufficient reason was pointed out byappellant Durgalal in the application for setting aside the abatement for not bringing on record the legal representatives within time. That shows that the appellant acted in a very careless manner and is not entitled to any indulgence.

8. The last ground urged by Mr. Kasliwal need not detain me any longer. The authority relied upon by Mr. Kasliwal namely. AIR 1963 Raj 245 (supra) is not at all applicable as the question in that case was about the abatement of the suit after passing a preliminary decree. The present case relates to an appeal which was filed by the defendants against the preliminary decree passed by the trial Court. The argument of the learned counsel for the appellant against the applicability of Order 22, Rule 4, C.P.C. to the present case is that a suit does not abate after the preliminary decree has been passed therein and therefore the appeal against the preliminary decree would remain unaffected by Order 22. Rule 4, C.P.C. and would not be subject to abatement. To my mind, this argument is patently untenable. A similar question was raised in Bageshwarprasad v. Ramprakash, 1966 All LJ 298 and it was held that while the suit keeps pending in the trial Court even after a preliminary decree is passed and is no longer subject to the provisions of Order 22, Rule 4. C.P.C., an appeal preferred against the preliminary decree remains subject to the said provisions and is not immune from abatement merelv because the suit itself has become immune from abatement. The rights of a plaintiff obtaining a preliminary decree become crystallised as the result of the decree and if they are challenged in appeal, the appeal will be governed by the procedure laid down in Order 22, Rule 4 and will attract the consequences mentioned therein if its provisions are not complied with. This question was also discussed at length by the Patna High Court in Barjnath Ram v. Mt. Tunkowati Kuer. AIR 1962 Pat 285 (FB). which sets at rest the conflicting decisions on the question in that High Court. The Patna High Court laid down the law in the following terms:

'The correct view appears to be that where there is en appeal from a decree, preliminary or final, and during the pendency of the appeal one of the appellants or respondents dies and the right to sue does not survive to the remaining appellants or against the remaining respondents, then Rule 3 or 4, as the case may be. applied and not Rule 10, and the appeal will abate if the legal representatives are not brought on the record, within the tune limitedby law as. provided in Sub-rule (2) of Rule 3 and Sub-rule (3) of Rule 4.'

The same view was taken in Dassumal Ramrakhiomal v. Mahomed Bux Amir-baksh, AIR 1937 Sind 208; Kunjbeharilal v. Adjodhia Prasad, AIR 1947 Oudh 28 and Ramnath Kisanlal v. Ram Gopal Bhaulal. AIR 1951 Nag 434. There is thus no substance in the argument that the provisions of Order 22, Rule 4 do not apply to the present case. It has already been noted that there is no explanation why the defendant-appellant even after he had come to know about the death of Asharafilal did not move an application for setting aside the abatement till 2-11-66. There is also no doubt that having regard to the nature of the suit and the preliminary decree passed in favour of the respondents, the appeal could not have proceeded against the surviving respondents alone. The learned District Judge in the circumstances rightly dismissed the appeal as having abated.

9. There Is no force in this appeal and it is hereby dismissed. I make no order as to costs.


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