1. The order under challenge is dated 21.01.2012 passed by Small Cause Court/Civil Judge (Senior Divison), Varanasi allowing substitution application in respect to defendant Sunil Kumar Banerjee who died on 09.10.2006 and revisional order dated 27.07.2012 passed by District Judge, Varanasi dismissing Revision No. 07 of 2012 against aforesaid order dated 21.01.2012.
2. Learned counsel for the petitioners submitted that the defendant died on 09.10.2006 while application for substitution was filed on 29.01.2007, i.e., beyond 90 days and without there being any application for condonation of delay, it was liable to be rejected but the courts below have committed patent error in allowing substitution and rejecting petitioners' application of abatement of S.C.C. Suit No. 16 of 2005. He has placed reliance on Apex Court's decisions in Ragho Singh Vs. Mohan Singh and others, 2000(91) R.D. 689 and Mahabir Singh Vs. Subhash and others, 2008(1) AWC 165 as well as this Court's decision in K.B. Agarwala Vs. Smt. Chandrawati and others, AIR 1976 All 15 and (Smt.) Mahendra Kaur Vs. Hafiz Khalil, 1987 RD 392 FB.
3. The basic submission of Sri A.K. Singh, Advocate for considering as to who are the legal heirs and representatives of deceased defendant the Trial Court had to permit the parties to adduce evidence whereafter the matter was clear about legal heirs/representatives. In these circumstances petitioners is that after the death of defendant, if no substitution is filed within 90 days, by operation of law the suit would abate and it does not require any formal order. Thereafter it can revive only if the abatement is set aside on an application filed by plaintiff explaining delay and not otherwise. It is in these context he has cited and relied on the authorities, referred above. He further submitted that both the courts below have not looked into this aspect of the matter correctly, therefore, the impugned orders are liable to be set aside.
4. Before coming to the submissions advanced by learned counsel for the petitioners, I am just giving, in brief, the relevant facts of this case for better understanding of issues involved in this matter.
5. The plaintiff-respondent, Smt. Kamla Devi Budhia Dharamshala Trust through its Managing Trustee filed Small Cause Suit No. 16 of 2005 seeking ejectment of defendant-tenant, namely, Sri Sunil Kumar Banerjee (now deceased) from the premises in dispute and recovery of arrears of rent/damages. Copy of plaint dated 19.04.2005 is on record as Annexure-3 to the writ petition.
6. A written statement was filed by defendant-tenant, Sri Sunil Kumar Banerjee on 18.05.2006. He died on 09.10.2006. The counsel who was representing the defendant-tenant, Sri Sunil Kumar Banerjee informed the court on 04.11.2006 about the death of his client as contemplated under Order 22 Rule 10-A of C.P.C. After coming to know of this fact, the plaintiff filed an application on 09.11.2006 requesting the Court that counsel of deceased-defendant be directed to give particulars of legal representatives/heirs, if any, of defendant-tenant. The said application was taken up by Trial Court on 21.12.2006 whereupon the court passed following order:
^^okn iqdkjk x;kA 137 x izkFkZuk i= ij lqukA izfroknh ej pqdk gS blfy;s mlds okfjlku dh tkudkjh Lor% oknh tkudkjh gkfly djds djsa rn~uqlkj 137x] fuLrkfjr fd;k tkrk gSA i=koyh fnukad 29-1-07 dks is'k gksA** "Case called out. Heard on Application 137C. Defendant has died, therefore, the plaintiff himself shall get information regarding his heirs. 137C is disposed of accordingly. Put up the file on 29.01.2007." (English translation by the Court)
7. On 29.01.2007 the plaintiff-respondent filed application for amendment/substitution of one Pavitra Deo Banerjee. This was registered as Paper No. 38C. Sri Pavitra Deo Banerjee filed objection (Paper No. 55C) stating that Late Sunil Kumar Banerjee has left his wife Beena Banerjee, three sons namely, Anirudha Banerjee, Tapas Banerjee and Kisle Banerjee as also one daughter, namely, Keka Chatterjee as legal heirs and they should be impleaded. On this issue the Trial Court permitted the parties to adduce evidence and found that the persons named by Sri Pavitra Deo Banerjee were the heirs of deceased defendant. Thereupon the respondent-landlord filed another application dated 13.04.2011 (Paper No. 129C) for bringing on record the aforesaid legal heirs (i.e. the petitioners) of late Sri Sunil Kumar Banerjee by substituting the deceased-tenant and did not press his application dated 29.01.2007 (Paper No. 38C) which was rejected as not pressed on 30.08.2011.
8. This application dated 13.04.2011 was opposed by petitioners who were sought to be substituted in the aforesaid suit on the ground that the application has been filed after five years, the suit has already abated, and, unless and until abatement is set aside, application for substitution is barred by limitation and liable to be rejected. Both the courts below however have held that application of substitution was within time and there was no occasion of abatement of suit and objections accordingly have been rejected.
9. From the above, it is evident that a Small Cause Suit was filed by respondent-landlord stating that it is a Public Religious and Charitable Trust and property in dispute is owned and vested in it, therefore, the provisions of U.P. Urban Buildings (Regulation of Lettings, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") are not applicable. Hence the question of substitution and abatement would be governed by Order 22 Code of Civil Procedure (hereinafter referred to as the "CPC") instead of Section 34 sub-section (4) of Act, 1972 read with Rule 25 of U.P. Urban Buildings (Regulation of Lettings, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972"). On this aspect learned counsel for the petitioners did not raise any dispute and he himself referred to the provisions of Order 22 CPC and Article 120 of Limitation Act, 1963 (hereinafter referred to as the "Act, 1963").
10. Now I come to the relevant provisions under Order 22 C.P.C.
11. Rule 1 Order 22 C.P.C. provides, if the right to sue survives, the death of plaintiff or defendant shall not cause the suit to abate. There is an Allahabad Amendment also but it is not applicable and necessary for the dispute in question. Therefore, vide Rule 1, Order 22, first principle declared is that mere death of a party to suit shall not result in abatement of suit if the right to sue survives. No doubt this Rule 1 has to be read with in conformity with other Rules under Order 22.
12. Rule 4 provides that on the death of sole defendant, if the right to sue survives, on an application made in that behalf, the Court shall cause the legal representatives of deceased defendant to a party. Sub-rule (3) of Rule 4 says where within the time limit prescribed, by law no application is made under sub-rule (1), the suit shall abate as against deceased defendant. Sub-rule (5) considers a case where a plaintiff due to ignorance of death of defendant, fails to make an application for substitution within the period specified in Act, 1963 and suit in consequence has abated, by providing that the Court shall consider this aspect and have due regard to the fact of such ignorance, if proved for setting aside abatement and for admission of that application under Section 5 of Limitation Act, on the ground of such reasons, for the purpose of treating it sufficient cause of such application within the period specified.
13. Rule 10-A has been inserted in Order 22 by Section 73 of Act 104 of 1976, Section 73 w.e.f. 01.02.1977. It lays an obligation upon a pleader appearing for a party to the suit whenever he comes to know of the death of that party, that he shall inform the court about it and court shall thereupon give notice of such death to other party.
14. Article 120 of Act, 1963 provides 90 days as period of limitation. It further says that time from which the period begins to run would be the date of death of plaintiff, appellant, defendant or respondent, as the case may be. It in this contest, learned counsel for the petitioners has contended that time commences from the date of death and hence the application filed by plaintiff-respondent was not within time.
15. Apparently what he says appears to be correct inasmuch as limitation commences under Article 120 from the date of death. The provision is very clear. In Janky Vs. Sasi, 1999 AIHC 3841 the Kerela High Court also observed that limitation of 90 days under Article 120 commences/starts from the date of death for making application for impleading the legal representatives. If within 90 days from the date of death, no application is filed, the suit would stand abated, though abatement can be set aside and the representatives of deceased defendant-tenant can be impleaded/ substituted, if the Court is satisfied for the reasons of delay, that it is not on account of any negligence on the party concerned.
16. Under the old provisions of Limitation Act, namely, Articles 176 and 177 of Limitation Act No. 9 of 1908, the Apex Court in Union of India Vs. Ram Charan, AIR 1964 SC 215 held that limitation starts from the date of death of respondent and not from the date of knowledge on the part of appellant of such death. To the same effect is the view taken in Molu Vs. Soran, AIR 1993 P&H 81.
17. However, in Puthiya Purayil Kannan's Widow Kozipurath Chemmarathi by L.R. Kozhipurathu Kanaran Vs. Patinhare Koyyattan Balan and others, AIR 1997 SC 2440 the Court has given a bit new dimension. The original petitioner died on 01.09.1993 and application to bring on record, the legal representatives, was filed on 27.01.1994. The Court observed that by operation of Article 120 of Schedule to Act, 1963 the application to bring on record legal representatives of deceased plaintiffs or defendants should have been filed within 90 days from the date of death of plaintiff/defendant. If the application is not filed within the date, the abatement takes place. It also observed that Article 121 of Schedule to Act 1963 envisages that for an order for setting aside abatement, the application need be filed within 60 days from the date of abatement. The Court then observed that application for substitution though not been filed within 90 days from the date of death, and no doubt the abatement took place, but the application definitely was filed within 60 days thereafter as prescribed under Article 121 of Act 1963, and that being within time, the abatement could have been set aside and that being so, the abatement was set aside rightly and the Court declined to interfere in these facts. The present case aptly covered by this authority.
18. Besides above, there are some more aspects to be considered in such matters.
19. The procedure prescribed in the CPC is to ensure that a dispute between the parties be adjudicated by a Court of Law in such a manner that the party should get adequate opportunity to bring their case before the Court of Law, to assist it effectively in reaching a true and correct conclusion and thereafter to decide the matter. The Apex Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, AIR 1955 SC 425 said that a Code of Procedure is a body of law designed to facilitate justice and further its ends. It should not be treated as an enactment providing for punishments and penalties. The laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their back, that proceedings that effect their lives and property should not continue in their absence and that they should not be precluded from participating in it. The Court further said that subject to clearly defined exceptions, the laws of procedure should be construed wherever reasonably possible, in the light of that principle.
20. The Court is invested with widest possible discretion to see that justice is done to all concern. There is no magic word or frame or structure within which an application should be filed and can be filed under Order 22 Rules 4 or 9 etc. It is the substance which has to be seen. The Court finds that there are two contingencies contemplated under Order 22. One commences with the death of party to the suit. A substitution application is supposed to be filed within 90 days from the date of death. If no application is filed within this period, at the end of 90 days, the second effect comes, i.e., abatement of suit. The earlier part is governed by Order 22 Rule 4 and later one is governed by Order 22 Rule 9. Such abatement when takes place, it has certain legal consequences provided therein.
21. Under the Act 1963 also, therefore, separate limitations have been prescribed for both these occasions, namely, Article 120, under which 90 days period is prescribed for filing substitution application which commences from the date of death of party to the suit, and, Article 121 contemplates the second stage, namely, when suit stands abated, i.e., after expiry of 90 days, then a period of 60 days is prescribed for filing application for setting aside abatement.
22. If an application for setting aside abatement is filed within 60 days after expiry of 90 days and the competent court allow such application, it would have the effect that suit has not abated and would continue. This is what has been found to be the legal consequence by Apex Court in Puthiya Purayil Kannan's Widow Kozipurath Chemmarathi (supra), as already discussed above. This is also evident from Article 121 of the Schedule to Limitation Act which says that 60 days commences from the date of abatement.
23. Here also, if an application is filed after 60 days, since the Limitation Act as such has been applied, the applicant can seek condonation of delay under Section 5 of Act, 1963 by showing sufficient cause for such delay.
24. Learned counsel for the petitioners at this stage would contend that in the present case there is no application under Order 22 Rule 9 but it was an application under Order 22 Rule 4 read with Article 120 of the Schedule to Act, 1963. In my view it is the substance which is to be seen and not every tees and dots. It is also well established that non mention or wrong mention of a provision will not deprive an authority from exercising its power if it is otherwise vested. In the matter of procedure it is the question of substantial justice and not any hyper technical view of the matter.
25. However, in the present case this Court finds that no provision has been mentioned in the application dated 29.01.2007. In fact here the matter has proceeded very differently. When the deceased-defendant's counsel informed the Court on 04.11.2006 about the death and date of defendant, Sri Sunil Kumar Banerjee on 09.10.2006 immediately thereafter the plaintiff moved an application on 09.11.2006 stating that the defendant's counsel should be directed to inform, whether there is any legal heir/representative of defendant, Sunil Kumar Banerjee and if so, the details be produced before the Court. This itself shows that plaintiff intended to implead the legal heirs of deceased defendant but being not aware of their particulars, requested the Court that defendant's counsel should be required to disclose such details. On the aforesaid application, Trial Court passed an order on 21.12.2006 directing the plaintiff himself to find out particulars about legal heirs/representatives of deceased defendant and fixed 29.01.2007 for such purpose. It is in these circumstances the plaintiff moved application on 29.01.2007 to bring on record Sri Pavitra Deo Banerjee as defendant no. 1/1 and also sought a further amendment in the plaint.
26. This application was contested by Sri Pavitra Deo Banerjee. For considering as to who are the legal heirs and representatives of deceased defendant the Trial Court had to permit the parties to adduce evidence whereafter the matter was clear about legal heirs/representatives. In these circumstances, another application was filed on 13.04.2011 to substitute the petitioners as legal heirs/ representatives of Sri Sunil Kumar Banerjee instead of Sri Pavitra Deo Banerjee, who has already died on 20.02.2011. This application whereby petitioners were sought to be brought on record was admittedly filed within 90 days from the date of death of Sri Pavitra Deo Banerjee. The courts below in view of above facts have relate back the plaintiff-respondent applications dated 29.01.2007 and 13.04.2011 with his first application filed on 09.11.2006 and have proceeded thereupon to hold that there is neither any delay in filing substitution nor the suit has abated.
27. As already said, such matters cannot be placed in straight jacket formula of a particular procedure and format. Time and again enough latitude has been given by Courts in dealing such matters. The intention always has been to do justice with parties and not to non-suit a party on hyper technical reasons.
28. In Babaji Padhan Vs. Mst. Gurubara, AIR 1962 Orissa 94 the Court said that an application made to bring legal representatives of deceased defendant on record after time prescribed therefor by law should ordinarily be treated as an application to set aside abatement of suit which has taken place though it is not asserted that delay was due to reasonable causes. The Court also observed, where such an application is made after the death of deceased party to bring his legal representatives on record and continue a proceeding, the application in substance is an application to set aside abatement under Order 22 Rule 9 and absence of a formal order of abatement is no obstacle thereto. The Court has power to entertain such an application and decide where the applicant was prevented by sufficient cause from continuing the proceedings. In the aforesaid decision the Court relied on the decision of Lahore High Court in Kirpa Ram Vs. Bhagat Chand, AIR 1928 Lahore 746 and a decision of this Court in Lachmi Narain Vs. Muhammad Yusuf, AIR 1920 All 284.
29. There is another decision in Ningthoujam Ongbi Radhey Devi Vs. Lalaram Ningol Ninghoujam Ongbi Devi, AIR 1970 Manipur 70 where in para 5 of the judgment, the Court said that substitution of legal representatives without first setting aside the abatement would constitute a mere irregularity which does not vitiate the order. In other words, an application for substitution can legally be treated as a composite application for setting aside abatement and bringing the representatives of deceased party on record. Here also the Court relied on the Lahore High Court's decision in Diwan Chand Vs. Bhagwan Chand, AIR 1937 Lahore 455 and Orissa High Court's decision in Babaji Padhan Vs. Mst. Gurubara (supra).
30. In Bachan Ram Vs. The Gram Panchayat Jonda, AIR 1971 Punj & Hry 243 in para 2 of the judgment, the Court referred to the decisions of Lahore High Court in Badlu Vs. Mt. Naraini, AIR 1924 Lahore 424; Ata-ur-Rahman Vs. Mushkur-un-Nisa, AIR 1926 Lahore 474; and, Kirpa Ram Vs. Bhagat Chand (supra) and said that an application made to bring legal representatives of deceased defendant on record after time prescribed therefor-by law, should ordinarily be treated as an application to set aside abatement of suit which has taken place even though it is not asserted that the delay was due to any reasonable cause. All that is necessary is that the Court should feel satisfied that discretion should be exercised in favour of party seeking setting aside of abatement.
31. This Court has also observed in Sri Ram Prasad Vs. The State Bank of Bikaner, AIR 1972 All 456 that bringing on record legal representatives should be treated as if the prayer of setting aside abatement is implicit therein. To the same effect is the decision in Smt. Shakuntala Devi Vs. Banwari Lal, AIR 1977 All 551 (paras 4 and 5); Kulsoomun Nissa Vs. Noor Mohamad, AIR 1936 All 666; Kunhikayyumma Vs. Union of India, AIR 1984 Karela 184; Firm Gabrulal Vs. Court of Wards, AIR 1933 Nagpur 85; and recently in Smt. Kamlesh Vs. Tekchand and others, AIR 2003 All 299.
32. The Full Bench judgment cited at the Bar on behalf of petitioners, namely, Mahendra Kaur (supra) is an authority to lay down a proposition that after the death of a party, a suit can continue only if the cause of action survives and not otherwise. If the right to sue does not survive, the suit shall come to an end. The Court observed that if an application for bringing on record the legal representatives/heirs is not filed within 90 days of the death of party to the suit, the abatement of suit is automatic. No specific order is required to be passed by the Court for the said purpose. For 90 days which is the period prescribed for moving application for substitution, the suit does not finish or is not put to an end but if no substitution application is filed, by operation of law, the suit stands abated and that is how it brings in Order 22 Rule 9. If an application is filed under Order 22 Rule 9 and abatement is set aside it shall infuse life into the suit and it will proceed from the stage at which the death has taken place. The second issue therein was application of Order 1 Rule 10 in a case governed by Order 22 and Full Bench observed, when a specific procedure has been prescribed in Order 22, Order 1 rule 10 would have no application. I do not find the above authority either to govern the real issue in question in this matter in the particular and peculiar facts of this case or laying down any proposition of law otherwise than what I have discussed above.
33. The Division Bench judgment in K.B. Agarwala (supra), in my view, has no application at all except to an observation that limitation once commences, no subsequent disability or inability can stop. The exposition of law admits no exception but the real issue involved in this matter, in my view, finds no help from the aforesaid decision in order to declare the orders passed by courts below, impugned in this petition, being faulty or erroneous in any manner.
34. The decision of Apex Court in Ragho Singh (supra) deals a case where an application is filed beyond time but without seeking any condonation of delay, and, the Apex Court held, that, since no application for condonation of delay was filed, hence the Additional Collector has no authority to decide the appeal, having been filed beyond the period of limitation.
35. The decision in Mahabir Singh (supra) is also to the same effect that limitation prohibits a Court to entertain any suit or application if it is filed after expiry of limitation, in the present matter, considering its peculiar facts, I find the said decision as no application to the facts of this case.
36. In the result, I find no reason or justification to interfere with impugned orders. The writ petition lacks merit.
37. Dismissed.
38. No costs.
Order Date :- 05.09.2012 AK