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Probodh Kr. Bajpayee Vs. Mohit Kr. Banerjee - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2351 of 1976
Reported inAIR1978Cal505
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 22, Rule 9
AppellantProbodh Kr. Bajpayee
RespondentMohit Kr. Banerjee
Appellant AdvocateSaktinath Mukherjee and ;Partha Datta, Advs.
Respondent AdvocateS.C. Mitter and ;S.P. Roy Chowdhury, Advs.
Cases Referred(Manendranath Land & Building Corpn. v. Bhutnath Banerjee
- .....pleaded there was no reason why the application should have been rejected.5. mr. shyama charan mitter, the learned advocate, opposing the rule argued that even after the order rejecting the application for setting aside abatement was passed on the 20th of march, 1976 the plaintiff was asked to take steps. as no steps were taken another opportunity was given on the 25th of may, 1976. he was given another chance to show cause till the 18th of june, 1976. but as no cause was shown the suit was ultimately dismissed on the 18th of june, 1976. it was entirely consequential to the plaintiff's failure to take steps in spite of opportunities having been given to him. mr. mitter submitted that the suit not being there this application filed in a dead suit did not lie. as nothing existed the.....

Sudhamay Basu, J.

1. This Rule was obtained against an order dated the 20th of March, 1976 passed by the Munsif, 1st Court at Alipore in Misc. Case No. 24 of 71 arising out of S.C.C. Suit No. 115 of 63.

2. The petitioner instituted a suit (No. 115 of 63) at the S.C.C. Court at Alipore against one Manindra Nath Banerjee, since deceased, who was predecessor-in-interest of the opposite parties 1 to 5 and two others as pro forma defendants for recovery of rent in respect of premises No. 303, Diamond Harbour Road. A written statement was filed by the said Manindra Nath Banerjee who alleged that he was a tenant of the land and not of the structure and that his tenancy was governed by the West Bengal Non-agricultural Tenancy Act. The suit was decreed in favour of the petitioner against which a rule was obtained from this High Court being Civil Rule No. 1290 of 1965. On the 8th of July, 1969 the case was sent back on remand for further hearing to the S.C.C. Court. The records were received at the S.C.C. Court on the 8th of Sept., 1969. It appears that the defendant died sometime in the middle of Jan., 1970. On the 30th of April, 1970 the learned Advocate appearing for the said Manindranath Banerjee informed the court that his client had died. The learned court passed an order on 12-2-1971 recording that the suit had abated and giving directions to inform the parties. On 22-3-1971 the petitioner's advocate was informed about the receipt of the records. On 10th of April, 1971 the petitioner came to know about the defendant's date of death and filed an application on the 12th of April, 1971 for substitution of heirs and legal representatives of the deceased Manindranath Banerjee after setting aside abatement under Order 22, Rule 9 and Section 151 of the Civil P. C. A separate application under Section 5 of the Limitation Act was also made. On the 20th of March, 1976 the learned Munsif disallowed the application on contest. The learned Munsif noted that the defendants informed the court on 30-4-1970 of the death of Manindranath Banerjee by filing a petition. He noted the cross-examination of the plaintiff as P.W. 1 and held that the plaintiff was not only 'careless and negligent about his case but there has been no doubt carelessness and callousness on the part of the plaintiff......... to file a petitionwithin the prescribed period of limitation'. He relied on two decisions reported in : AIR1975Cal12 and : [1964]3SCR467 and held that mere allegation of the plaintiff in not knowing the defendant's death earlier was not sufficient. He further was of the view that the plaintiff's burden of establishing the reasons of delay was not discharged by cogent and reliable evidence. The said judgment is challenged in this rule.

3. Mr. Saktinath Mukherjee, the learned advocate, appearing in support of the rule submitted that the observation made in : AIR1975Cal12 (Annapurna Debi v. Harosundari Dasi) that mere allegation about the plaintiff not coming to know of defendant's death was not sufficient for the purpose of Order 22, Rule 9, was based on the Supreme Court decision in Union of India v. Ram Charan reported in : [1964]3SCR467 . In this case the Supreme Court no doubt observed that there was no question of construing the expression 'sufficient cause' liberally either because the party in default was the government or because the question arose in connection with impleading of legal representatives of the deceased respondent. The court moreover noted that the provisions ofthe Code are made with a view to advance cause of justice. The court cautioned against insisting on 'overstrict' proof because the question does not relate to the merit of the dispute between the parties and because if abatement is set aside the merits of the dispute can be determined, while if the abatement is not set aside the applicant is deprived of a chance to prove his case. At the same time the court should not readily accept whatever the appellant alleges to explain his default Mr. Mukherjee cited the case of State of Karnataka v. Hulkoti reported in : AIR1977Kant119 which emphasised these two aspects of the question in not insisting on a strict construction of the expression 'sufficient cause'. Another case relied on by him was State of West Bengal v. Howrah Municipality reported in : [1972]2SCR874a in which the Supreme Court said clearly that the words 'sufficient cause' should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.

4. As to the facts of the case, Mr. Mukherjee's contention was that the parties in the lower court always rely on an information being given by the court as to arrival of records. In this case although the records arrived at the S.C.C. Court from the High Court as far back as 8th of Sept. 1969 and although the order sheets would show that the learned Judge had from time to time directed that the parties should be informed (see orders dated 28-11-69; 6-3-70; 6-11-70; 4-12-70 and 15-1-71) the said direction of the learned Judge was surprisingly not carried out by the ministerial officers until 22nd of March, 1971. Mr. Mukherjee commented that when the learned Judge observed about the 'callousness and carelessness' on the part of the plaintiff he was obviously not aware of what transpired to his numerous orders from time to time which failed to be carried out. The learned Judge did not notice that it was not even the case of the defendant that the plaintiff was given information. All that was claimed was that he filed a petition before the Court informing it of the death. The facts already noted above spoke for themselves and were eloquent enough to furnish reasons why the plaintiff could not know of the death earlier. As he was informed only as late as 22nd of March, 1971 he proceeded to make enquiries about the legal representatives and the actual date of deathwhich could be ascertained by the 10th of April, 1971. The application was filed on the 12th of April, 1971. Under those circumstances Mr. Mukherjee pleaded there was no reason why the application should have been rejected.

5. Mr. Shyama Charan Mitter, the learned Advocate, opposing the rule argued that even after the order rejecting the application for setting aside abatement was passed on the 20th of March, 1976 the plaintiff was asked to take steps. As no steps were taken another opportunity was given on the 25th of May, 1976. He was given another chance to show cause till the 18th of June, 1976. But as no cause was shown the suit was ultimately dismissed on the 18th of June, 1976. It was entirely consequential to the plaintiff's failure to take steps in spite of opportunities having been given to him. Mr. Mitter submitted that the suit not being there this application filed in a dead suit did not lie. As nothing existed the the application at this stage is infructuous. Secondly Mr. Mitter argued that the plaintiff failed to discharge the onus which lay on him. He referred to the petition filed at the lower Court. The only ground made therein was that the communication about the death of the defendant was made to the petitioner on 22nd of March, 1971 and that he came to know the time of the death and the name of the representatives on the 10th of April. In terms of the decision reported in : [1964]3SCR467 Mr. Mitter strongly urged that a mere statement that the plaintiff came to know of the death at a later date was not enough. Nothing was said in the petition that he was prevented by sufficient cause. He read from the cross-examination of the petitioner in course of which he said that he did not know when the High Court's case was decided and that he did not ask the lawyer to inspect the records. Mr. Mitter also referred to a decision. Hazi Munna Mia and Company v. Union of India reported in : AIR1972Cal185 . In that case the Court held that by merely recording abatement of the suit under the rule, the court does not order dismissal of the suit against the surviving defendants in that case reference was made to the case of Union of India v. Sri Ram Bohara (reported in : [1965]2SCR830 ) in which it was observed that in rase of joint and individual decree in favour of the two plaintiffs respondents, whenone plaintiff died and his legal representatives are not impleaded in time an appeal against them abates and the appeal against the other plaintiff cannot be proceeded with and becomes incompetent. Thirdly Mr. Mitter argued by referring to a decision of the Supreme Court reported in : [1964]3SCR495 (Manendranath Land & Building Corpn. v. Bhutnath Banerjee) that it is not open to the High Court in exercise of its re-visional jurisdiction to question the conclusions of law or fact in which questions of jurisdiction are not involved. An erroneous decision, according to Mr. Mitter, by itself could not be a good ground for interference in revision.

6. As to the question of setting aside abatement it cannot be said that Mr. Mitter's criticism is without substance. So far as the petition filed in the lower court is concerned it is a bald petition without indicating how the petitioner was prevented by sufficient cause from knowing the death of the defendant at an earlier date. Yet on the facts of this case it would not be quite fair to penalise the petitioner on that ground alone. The quality of pleading in mofussil courts, specially, in the matter of applications has often been a matter of comments by the High Court and for the ends of justice a litigant is not made to suffer merely on account of the nature of the petition filed on his behalf when there are other favourable attendant circumstances patent on the face of the records. In this case, as has already been noted, there was a failure to carry out the direction of the learned lower court to inform the parties. More than six orders are there directing information to be given to the parties yet the same was not complied with. That aspect of the matter does not seem to have been considered by the learned Munsif at all. As the Supreme Court has observed in the case noted earlier viz. : [1964]3SCR467 'it is not the duty of the appellant to make regular enquiries from time to time about the health or existence of the respondent'. While coming to know of the respondent's death belatedly by itself will not justify an application for setting aside abatement, the expression 'sufficient cause' should not be construed very strictly. As the latest Supreme Court decision : [1972]2SCR874a has said 'the phrase is to be construed liberally.' The two factors in this connection to be noted are that the question does not relate to the meritof the dispute and that if abatement is set aside the merit can be considered. But if it is not set aside the claim is not given any chance to be proved. In the present case the facts clearly indicate that the plaintiff was not aware of the death of the plaintiff till at a very late date. He could legitimately wait till the court made known to the parties about the arrival of the records. He cannot be held guilty of inaction, negligence or want of bona fide. On a consideration of all the relevant facts and circumstances I am inclined to accept the submission of Mr. Mukherjee. When it is a border line question, I should think the court should give a chance to the applicant for setting aside abatement rather than not allowing him to do so.

7. As to the other ground urged by Mr. Mitter, it is not his contention that the cause of action does not survive so far as the main defendant is concerned in the absence of the others. Without going into further details that, in my view, is sufficient to dispose of this contention of Mr. Mitter. The law allows a party to make an application for setting aside abatement which takes effect automatically even without the court recording the order. If that is so, even if the suit as regards the other defendants has been dismissed, in the absence of a contention that the suit cannot go on against the principal defendant this court does not find any good reason to turn down the application on that score.

8. Lastly while it is true that the court does not interfere on the ground of a mere illegality or erroneous decision (see Manindra Land & Building Corpn.'s case : [1964]3SCR495 and Pandurang's case AIR 1960 SC 153) it may be noted that in the instant case there was a failure on the part of the court to consider the records and the relevant facts. It was not merely an erroneous decision against which the petitioner has come to this Court. Mr. Mukherjee seems to be on strong ground when he urges that the lower court acted with material irregularity in not taking into consideration some very relevant features of the case.

9. In the aforesaid circumstances the petition succeeds and the rule is made absolute. There will be no order as to costs. The records may go back to the lower court at an early date.

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