Dr. Kalaignar Karunanidhi Silk Handloom Weavers'' Co-operative Production and Sales Society Ltd. vs Sha Ganeshmal Bhandari Trading in the name of Sha Veeraji Uttam Chand (Died) and others

S. Parvatha Rao, J. 1. This Civil Miscellaneous Appeal is preferred against the order of the learned Subordinate Judge at Vijayawada in LA. No. 1023 of 1989 in O.S. No. 67 of 1987 dated 30-10-1989 dismissing the said I.A. filed for setting aside "the abatement in filing the petition for impleading the respondent 2 to 6 as legal heirs of the 1st respondent as respondents in the claim petition." The 1st respondent herein filed O.S. No. 67 of 1987 against the 7th respondent herein. In the said suit he filed I.A. No. 271 of 1987 and got the silk sarees worth about Rs. 61,660/- attached on 28-1-1987 alleging that the 7th respondent herein who is the defendant in the said suit was the owner of the said sarees. The appellant herein filed claim petition I.A. No.417 of 1987 contending that the said sarees belong to it. After the appellant filed the said I.A. No.417 of 1987, the 1st respondent i.e., the plaintiff in the suit, died on 7-11-1988 leaving behind respondents 2 to 6 herein as his legal representatives. The appellant herein filed the present I.A. No. 1023 of 1989 on 3-3-1989 i.e., after the expiry of 90 days from 7-11-1988 the date of the demise of the plaintiff, for setting aside the abatement of the said I.A. No. 417 of 1987 and also I.A. No. 1024 of 1989 for bringing on record respondents 2 to 6 herein as legal representatives of the deceased 1st respondent.

Respondents 5 to 7 remained ex parte in the said I.As. On behalf of respondents 2 to 4 it was contended before the learned Subordinate Judge that as the appellant herein did not choose to file an application u/s 5 of the Limitation Act to condone the delay in filing the L.R. application, he was not entitled to the relief as prayed for and that in the absence of such an application u/s 5 of the Limitation Act the petition to set aside the abatement was not maintainable under Order 22, Rule 9(3) of the Civil Procedure Code. The said contention appealed to the learned Subordinate Judge and he dismissed I.A. No. 1023 of 1989.

I am afraid the learned Subordinate Judge has grossly erred in dismissing LA. No. 1023 of 1989 on the flimsy and untenable contention advanced on behalf of respondents. The learned Subordinate Judge assumed that Rules 4 and 9 of Order 22 apply to LA. No.417 of 1987 filed under Rule 8 of Order 38 read with Rule 58 of Order 21 and that it would abate if an application to bring on record the legal representatives of the1 deceased 1st respondent was not filed under Rule 4 of Order 22 substituting ''respondent'' for ''defendant'' therein. I will not also proceed to deal with this appeal on that assumption, I.A. No. 1023 of 1989 filed by the appellant, if, at all, has to be considered under sub-rule (2) of Rule 9 read with Article 121 of the Limitation Act, 1963. Under Article 121 of the Limitation Act, for making an application to set aside an abatement, 60 days time is given from the date of abatement. The learned. Subordinate Judge himself observes in para-graph 5 of his order: "no doubt the plaintiff 1st respondent died on 7-11-1988, and the, present application is filed on 3-3-1989 and by 5-2-1989, 90 days period for impleading the L.R. is over". From this it clearly follows that if Rules 4 and 9 of Order 22 applied, I.A No. 417 of 1987 dated on 5-2-1989 and within 60 days from 5-2-1989 the appellant could present an application to set aside an abatement under Article 121 of the Limitation Act and therefore LA. No. 1023 of 1989 filed on 3-3-1989 was clearly within time. The question of extension of the prescribed period u/s 5 of the Limitation Act did not arise and therefore sub-rule (3) of Rule 9 of Order 22 was not attracted to the facts of the present case. The learned Subordinate Judge therefore ought not to have dismissed I.A. No. 1023 of 1989 on the ground that an application u/s 5 of the Limitation Act was not filed -- there was no delay in filing the application for setting aside the abatement. The order of the learned Subordinate Judge itself shows that the appellant had earlier filed I.A. No. 100 of 1989 in LA. No.417 of 1987 to add the 4th respondent herein as the legal heir of the 1st respondent but that the appellant subsequently came to know that the deceased 1st respondent left behind other legal representatives and that therefore immediately after his coming to know of the same, he filed the present I.A. No. 1023 of 1989. Though the learned Subordinate Judge has not stated when that I.A. No. 100 of 1989 was filed, I suspect that it must have been filed within 90 days from 7-11-1988. If that is correct, LA. No. 417 of 1987 would not abate. In this connection, sub-rule (2) of Rule 3 and sub-rule (3) of Rule 4 of Order 22 of the C.P.C. have to be noticed. It is only when no application is made within the time limited by law that the suit shall abate as against the deceased plaintiff on the deceased defendant as the case may be. If an application is made within the time allowed, there shall be no abatement. An application for bringing on record the legal representatives of a deceased party is not bad because all the legal representatives are not sought to be impleaded, unless such an application is shown to be mala fide. In the present case, the second application, I.A. No. 1024 of 1989 was filed soon after the appellant came to know that there were other legal representatives of the 1st respondent.

The learned Subordinate Judge is not right in upholding the contention of the respondents that the petition for setting aside the abatement was not maintainable without there being an application u/s 5 of the Limitation Act to condone the delay in filing the L.R. application. Sub-rule (2) of Rule 9 of Order 22 does not require any such application to be filed. The said sub-rule (2) is as follows:--

"(2) The plaint iff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or 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 upon such terms as to costs or otherwise as it thinks fit."

It will be noticed from the above that the application for an order to set aside the abatement or dismissal has to be filed by either the plaintiff (or the petitioner) or the person claiming to be the legal representatives of a deceased plaintiff etc. The latter part of the said sub-rule gives out the circumstances under which the Court shall set aside the abatement or dismissal -- it has to be proved that the plaintiff or the legal representative as the case may be was prevented by any sufficient cause from continuing the suit." If the Court is satisfied that there was such sufficient cause the Court shall set aside the abatement or dismissal. But while setting aside the abatement or dismissal, the Court may impose terms as to costs "as it thinks fit". Thus if the Court finds that there was sufficient cause, the Court is bound to set aside the abatement or dismissal. The sufficient cause here will also be sufficient cause for not making the petition for bringing on record the legal representatives within "the time limited by law" i.e., 90 days under the Limitation Act. I am therefore clearly of the view that when an application for setting aside the abatement or dismissal under sub-rule (2) of Rule 9 is made within the time allowed by law i.e., within 60 days from the date of abatement, along with a formal application for bringing on record the legal representatives, there is no further need to file an application for condoning the delay in filing an application for bringing on record the legal representatives of the deceased party.

In the circumstances of the present case, I am satisfied that the appellant herein has given adequate reasons and made out sufficient cause for being prevented from continuing I.A. No. 417 of 1987 and for not making the application (I.A. No. 1024 of 1989) for bringing on record the legal representatives of the deceased 1st respondent within time -- that is, assuming that I.A. No. 100 of 1989 was not made within time. The learned Subordinate Judge should have taken up I.A. No. 100 of 1989 also. I say that because the learned counsel for the appellant herein states that the said I.A. is still pending.

I therefore allow the Civil Miscellaneous Appeal and set aside the order of the learned Subordinate Judge dated 30-10-1989 and allow I.A. No. 1023 of 1989 with costs only in the said I.A. to be paid by respondents 2 to 4. No costs.

Appeal allowed.