Smti.Sheela Devi v. Shri. Bishen Prasad Tiwari

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

CO/42/2024 Smti. Sheela Devi Vs.

Shri Bishen Prasad Tiwari Mr. K.M.B. Jayapal ... for the Petitioner/ Appellant No.2 Mr. Gopala Binnu Kumar ... for the Opposite Party November 13, 2024 (Bithika) Item No.4 1.

In this revisional application as filed under Article 227 of the Constitution of India the order No. 65 dated 03.09.2024 as passed in Miscellaneous Judicial Case No. 44 of 2016 by the Learned District Judge, Andaman and Nicobar Islands has been impugned.

2.

By the impugned order Learned First Appellate Court dismissed the petitioner's application under Order XXII Rule 9 of Code of Civil Procedure basically on the ground that the said application for setting aside the abatement was not accompanied with an application for condonation of delay under Section 5 of the Limitation Act and thus by the self same order the said Misc. Judicial Case No. 44 of 2016 was also disposed of.

3.

The petitioner felt aggrieved preferred the instant revisional application.

4.

In course of his submission Mr. Jayapal, Learned Advocate appearing on behalf of the revisionist at the very outset submits before this Court that pursuant to the leave granted by a Co-ordinate Bench on 13.06.2016 in SAT No. 4 of 2015 an application under Order XXII Rule 3 of the C.P.C along with an application under Order XXII Rule 9 C.P.C was filed before the Learned District Judge, Andaman & Nicobar Islands which was registered as Miscellaneous Judicial case No. 44 of 2016. It is submitted that admittedly along with said two applications, no separate application under Section 5 of the Limitation Act has been filed. It is further submitted that from the prayer portion of the petition under Order XXII Rule 9 of the Code of Civil Procedure it would reveal that a prayer has been made by the present petitioner for setting aside the abatement as well as for condonation of delay.

5.

In course of his submission Mr. Jayapal, Learned Advocate for the petitioner submits before this Court that, in the petition under Order XXII Rule 9 C.P.C as filed before the Learned District Judge, Andaman & Nicobar Islands, facts have been stated as to why there occurred delay in filing the application for substitution within the period of limitation. Mr. Jayapal, however, submits that from the order dated 13.06.2016 as passed in SAT No.4 of 2015 it would reveal that challenging the judgment dated 29.09.2014 in Title Suit No. 11 of 2008 when an appeal was

carried out before Appellate Court, at that time one of the defendant/appellant had died and the factum of such death was not placed before the First Appellate Court and thus, when Title Appeal No. 19 of 2014 was disposed of by the First Appellate Court, it was not known to the then First Appellant Court that one of the appellant had died. 6.

It is further submitted by Mr. Jayapal, Learned Advocate for the petitioner that such fact was taken into consideration by a Coordinate Bench of this Court in SAT No. 4 of 2015 and Learned District Judge, Andaman & Nicobar Islands while passing the impugned order ought to have considered those facts which are the reason of delay in filing the application for substitution before him. It is further submitted by Mr. Jayapal, Learned Advocate for the petitioner that in view of the proposition of law enunciated in the reported decision Mithailal Dalsangar Singh and Ors. Vs. Annabai Devram Kini and Ors.

Reported in (2003) 10 Supreme Court Cases 691, Learned District Judge, Andaman & Nicobar Islands should not have taken a hyper-technical stand and should have allowed the petition for setting aside the abatement without insisting for filing of a separate application under Section 5 of the Limitation Act. It is further argued that the delay in filing the petition for substitution as well as petition for setting aside the abatement have been explained very well in the petition under Order XXII Rule 9 C.P.C.

7.

Mr. Jayapal, Learned Advocate for the petitioner thus submits that the instant revisional application may be allowed by setting aside the impugned order.

8.

In course of his submission Mr. Binnu Kumar, Learned Advocate appearing on behalf of the opposite party in his usual fairness submits before this Court that, in view of the reported decision of Mithailal Dalsangar (Supra) the Courts are expected not to take a hyper-technical approach.

9.

It is further however submitted that within the four corners of the application under Order XXII Rule 9 C.P.C, 501 days delay have not been properly explained. In course of his submission Mr. Binnu Kumar requests this Court to peruse the paragraph No. 5 of the said application. It is submitted that there was at all no proper explanation as to what prevented the petitioner to file the application for substitution within the period of limitation. It is further submitted by Mr. Binnu Kumar that the cause shown in those paragraphs are very much vague, and therefore, Learned Trial Court is very much justified in not condoning the said delay especially when a valuable right has accrued in favour of his client who got a decree from the Learned Trial Court for cancellation of a document.

10.

On careful consideration of the entire materials as placed before this Court and after hearing the Learned Advocate of the contending parties, it appears that while

passing the impugned order, Learned First Appellant Court while dealing with the petition under Order XXII Rule 9 of C.P.C noticed that no separate application for condonation of delay has been filed under Section 5 of the Limitation Act. At this juncture, this Court proposes to look into the reported decision of Mithailal Dalsangar Singh (Supra) wherein the Hon'ble Apex Court expressed the following:- "Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally.

A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety.

not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

11.

On perusal of the aforementioned decision of the Hon'ble Apex Court it appears to this Court that a Court of law should not be hyper technical in the event if it is found that relief can be granted to a party to the said suit. In the aforementioned reported decision it has also been expressed by Hon'ble Apex Court that filing of an application for set aside anabatement has practically become redundant when a Court allows an application for substitution meaning thereby while allowing the application

for substitution the Court automatically allows the abatement.

12.

This Court considers that the principle as enunciated in the aforementioned reported decision can be applied mutatis mutandis while entertaining an application under Order XXII Rule 9 of C.P.C even without filing an application under Section 5 of the Limitation Act. In the case in hand it is found that proper explanation has been given in the application under Order XXII Rule 9 of C.P.C for condoning the delay for not filing the application for substitution within the period of limitation.

13.

On perusal of the petition under Order XXII Rule 9 C.P.C it reveals from its prayer portion that, it contains a composite prayer; that is prayer for setting aside the abatement as well as the prayer for condonation of delay. 14.

Admittedly, Mr. Binnu Kumar, Learned Advocate for the opposite party contends that the reason assigned in the said petition for delay filing of the petition for substitution has not been properly explained. However, from the materials as placed before this Court more specifically from the facts and circumstances as stated in the order dated 13.06.2016 in SAT No.4 of 2015 it reveals that, a Coordinate Bench noticed that no application for substitution was filed in the first appeal challenging the judgement passed in title appeal No. 19 of 2014.

15.

On perusal of the petition under Order XXII Rule 9 C.P.C it further appears to this Court that, it has been stated that on account of preoccupation of the Learned Advocate for the petitioner the delay of 501 days occurred in filing the petition for substitution.

16.

This Court is of considered view that a litigant is not expected to suffer for the inaction and / or non action on the part of his Learned Advocate. At the same time this Court cannot over sight the sufferings of the opposite party herein as rightly pointed out Mr. Binnu Kumar. 17.

In view of such, this Court allows the instant revisional application.

18.

C.O No. 42 of 2024 is thus allowed on contest. 19.

Consequently, the impugned order No. 65 dated 03.09.2024 as passed by the Learned District Judge, Andaman & Nicobar Islands in Miscellaneous Judicial case No. 44 of 2016 is set aside.

20.

Consequently, the petition under order XXII Rule 3 C.P.C and petition under Order XXII Rule 9 C.P.C as filed in Miscellaneous Judicial Case No. 44 of 2016 is hereby allowed.

21.

Consequently, Miscellaneous Judicial Case No. 44 of 2016 as pending before Ld. District Judge, Andaman & Nicobar Islands is also allowed and disposed of. 22.

With the setting aside of the abatement, the title appeal No. 19 of 2014 is revived to its own file and number.

23.

Learned District Judge, Andaman & Nicobar Islands is directed to ask his department to carry out necessary correction in the cause title of the memo of appeal forthwith. 24.

Considering the sufferings of the opposite party, this Court imposes a cost of Rs. 25,000/- upon the petitioner which is to be paid to the opposite party and that will be a condition precedent and is to be paid within a month from today.

25.

It is made clear that in the event such cost is not paid, it would be presumed that no favourable order is passed in favour of the petitioner.

26.

The petition being C.O No 42 of 2024 is disposed of. 27.

Liberty is given to the party to communicate the server copy of this order.

28.

Registry is directed to communicate this order to the Learned District Judge, Andaman & Nicobar Islands forthwith.

29.

Urgent photostat certified copy of this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities (Partha Sarathi Sen, J.)