Bishen Prasad Tiwari v. Sheela Devi

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** CO/46/2023 Bishen Prasad Tiwari Vs.

Sheela Devi Mr. Gopala Binnu Kumar Ms. Vinita Devi ... for the petitioner Mr. KMB Jayapal ... for the respondent September 20, 2023 [SR] Item No.7 The instant revisional application is directed against an order dated 7th February, 2023 passed by the learned District Judge in Misc. Judicial case No. 43 of 2016 by which a application under Order 22 Rule 3 Code of Civil Procedure is allowed. The suit for recovery of possession against one Jaibans Kunwar stood decreed by the trial court and the said judgment and decree was assailed before the First Appellant Court. Upon the dismissal of the first appeal the second appeal was taken out by the defendants and during the pendency of the second appeal, it was pointed out that one of the defendant i.e. defendant No.

1 died on 8th April, 2015 and therefore judgment and decree passed by the first appellant court is a nullity. The second appellate court taking note of the aforesaid fact observed that the said defendant No. 1 died much prior in time during the currency of the first appeal and therefore the benefit under Order 22 Rule 6 of the Code of Civil Procedure is not applicable. However, the second appellate court set aside the judgment and decree passed by the first appellant court with the liberty to the appellant therein to take out an application for setting aside the abatement occasioned because of the death of the said Jaibans Kunwar and if such application for setting aside the abatement is taken out and if the court feels that the same deserves to be allowed, the appeal shall be heard on merit.

appellate court so that after setting aside the abatement, the same may be heard on merit.

Pursuant to such leave having granted, three applications came to be filed viz an application under Order 22 Rule 3 of the Code of Civil Procedure, an application under Order 22 Rule 9 of the Code of Civil Procedure and an application under Section 5 of the Limitation Act.

The aforesaid applications were taken out with an intent to set aside the abatement upon condonation of delay. My attention is drawn to the certified copy of the orders passed in the first appeal wherefrom it appears that on an application under Order 22 Rule 9 of the Code a Judicial Misc. Case No. 43 of 2016 was registered and the dates were fixed for hearing of an application for condonation of delay.

During the pendency of the aforesaid application one of the applicant namely Kokila Devi died and the factum of the death was intimated to the Court as the aforesaid three application were taken out jointly by Kokila Devi and Sheela Devi being the sisters of the deceased namely Jaibans Kunwar. By the impugned order the first appellant court took up the application under Order 22 Rule 3 of the code along with an application under Order 22 Rule 9 of and proceeded to dispose of the application under Order 22 Rule 3 of the Code and kept the other applications filed under Order 22 Rule 9 of the code pending. Although it is recorded that the Misc. Judicial Case is deposed of but, the application on the basis thereof the aforesaid Judicial miscellaneous case was registered was fixed for hearing on the next date.

If both the applications under Order 22 Rule 9 and the Order 22 Rule 3 of the Code were taken up together disposing of the latter applications and keeping the earlier one alive is beyond the conceivable thoughts nor can be comprehended in the legal parlance. Though the learned advocate for the opposite party sought to rely upon a judgment of the supreme court in Mithailal Dalsangar Singh vs. Annabai Devram Kini reported in (2003) 10 SCC 691 wherein the Apex Court held that the moment an application for bringing the legal representatives in place instead of the deceased party is allowed the prayer for

setting aside the abatement is inbuilt and inhered in it irrespective of the fact that there is no express prayer for setting aside the abatement pleaded therein in the following:- "8. 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.

Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as 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.

9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of "sufficient cause" within the meaning of sub-rule (2) of the Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and one arrived at would not normally be interfered with by superior jurisdiction."

There is no quarrel to the proposition as the abatement has a cascading effect and deny the opportunity to the parties to have the decision on merit. The Court must adopt a liberal and lenient approach in dealing with the aforesaid application as opposed to pedantic and strict view which may defeat the very purpose of rendering justice.

The Apex Court had no occasion to consider a case were the delay has occasioned even for making an application for setting aside abatement. Article 120 of the Limitation Act provides a period of 90 days for taking out an application for substitution on the death of any of the parties to the proceeding. Article 121 of the Limitation Act provides a period of 60 days for setting aside an abatement and the time for the purpose of computation of the period would recon from the date of the abatement. It admits no ambiguity that there is no formal order required for recording the abatement as the same is automatic. The moment the period enshrined in the Limitation Act expires the proceeding abates and can only be revive on setting aside the order of abatement taken out within the period of limitation provided under Article 121 of the Limitation Act. There is no fatter in the law in applying the provisions contained under Section 5 of the Limitation Act for condonation of delay in taking out an application for setting aside the abatement.

In fact the same has been done but the Court instead of proceeding to dispose of the application for condonation of delay surreptitiously took up the application under order 22 Rule 3 of the Code and allowed the same.

The ratio of the Apex Court as quoted hereinabove may have its applicability in the event the application under Order 22 Rule 3 of the Code of Civil Procedure is taken up within the period of limitation provided for an application for setting aside the abatement. However, the position becomes different when the period for filing an application for setting aside abatement has also expired and therefore unless the court condones the delay, the court should not have ventured to allow the application under Order 22 Rule 3 of the Code of Civil Procedure.

Furthermore, the dates were fixed for hearing of an application under Section 5 of the Limitation Act and therefore the Court ought to have decided the said application before taking up substantive application filed by the respective parties. In view of the above the order impugned is set aside. The Appellate Court is directed to consider the application for condonation of delay within four weeks from the date of communication of this order. It goes without saying that for the purpose of adhering the time limit indicate hereinabove the court shall prepone the date and permit the parties an opportunity of hearing.

The revisional application is allowed.

No order as to costs.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. )