M Maringmei Khuripou vs Maringmei Acham

[1] A piquant point of procedure arises for consideration in this revision filed under Article 227 of the Constitution - what would be the impact and consequence of the legal representative of a deceased sole plaintiff seeking impleadment in that capacity only in the appeal filed by such sole plaintiff against an interlocutory order passed in the suit without taking steps to come on record as the legal representative of such sole plaintiff in the suit itself, resulting in its abatement by operation of law.

[2] The facts leading up to the present revision, in a nut shell: Maringmei Thaitoungam filed Original (Declaratory) Suit No. 3 of 2014 before the learned Civil Judge (Senior Division), Churachandpur, seeking declaration of his right and title as the existing Chief of Lamdan Kabui Village or, in the alternative, a declaration that he was still the Chief of Lamdan Kabui Village. He also sought a declaration that order dated 20.01.2014 passed by the Deputy Commissioner, Churachandpur, was null and void. By the said order, the Deputy Commissioner had approved the claim of Maringmei Khuripou, the petitioner in this revision, to be the Khullakpa (Chief) and ex-officio Chairman of the village. In addition to these declarations, Maringmei Thaitoungam sought a permanent injunction restraining Maringmei Khuripou and his agents from felling trees in the village.

[3] Maringmei Thaitoungam also filed a miscellaneous application in the suit, in Judl. Misc. Case No. 3 of 2014, seeking a temporary injunction restraining Maringmei Khuripou from acting as the Chief of Lamdan Kabui Village; from cutting down trees in the village; from collecting house-tax from the villagers; and to maintain status quo, as he, Maringmei Thaitoungam, was the Chief of Lamdan Kabui Village, during the pendency of the suit. However, by order dated 03.07.2014, the Trial Court dismissed the said injunction application. Aggrieved thereby, Maringmei Thaitoungam filed an appeal in Civil Misc. Appeal No. 2 of 2014 before the learned District Judge, Manipur West, Imphal. This appeal was filed in August, 2014. While so, Maringmei Thaitoungam died on 07.09.2014. Thereupon, his son, Maringmei Acham,the respondent in the present revision, filed an application, in Judl. Misc. Case No. 31 of 2014 in Civil Misc. Appeal No. 2 of 2014, under Order XXII Rule 3 CPC seeking to come on record as the legal representative of the deceased appellant, viz., Maringmei Thaitoungam.

[4] By order dated 18.09.2014, the learned District Judge, Manipur West, Imphal, allowed the said L.R. application. Maringmei Khuripou thereupon filed an application, in Judl. Misc. Case No. 33 of 2018, under Order XLVII Rule 1 CPC seeking review of the said order dated 18.09.2014. His contention therein was that Maringmei Thaitoungam had sought protection of his personal rights by way of the suit and the miscellaneous application filed therein and in consequence, the right to sue based on such personal causes did not survive after his death and as such, Judl. Misc. Case No. 31 of 2014 was devoid of merit. However, by order dated 12.09.2018, the learned District Judge, Churachandpur, who was then seized of the matter, held that no grounds were made out for review of the earlier order dated 18.09.2014 and dismissed the review application. Aggrieved, Maringmei Khuripou filed CRP[C.R.P. Art. 227] No. 55 of 2018 before this Court assailing the aforestated order dated 12.09.2018 passed in Judl. Misc. Case No. 33 of 2018. This revision was disposed of by order dated 03.10.2018, directing the Appellate Court to take up the preliminary issue as to whether the legal heir of the deceased sole plaintiff would be entitled to prosecute the appeal in Civil Misc. Appeal No. 2 of 2014.

[5] At this stage, it may be noted that Maringmei Khuripou and one Kamei Terence had separately filed Original Suit No. 39 of 2014 in December, 2014, after the death of Maringmei Thaitoungam, seeking a permanent injunction restraining Maringmei Acham and one Pamei Dimpu from making claims of being the Chief/Khullakpa/Chairman and Secretary respectively of Lamdan Kabui Village. Therein, they also filed a miscellaneous application, in Judl. Misc. Case No. 68 of 2014, seeking a temporary injunction on the same lines. The said application was allowed by the learned Civil Judge (Senior Division), Churachandpur, on 01.08.2015. Aggrieved thereby, Maringmei Acham preferred Civil Misc. Appeal No. 2 of 2015 before the learned District Judge, Churachandpur.

[6] Thereafter, Maringmei Acham filed Judl. Misc. Case No. 65 of 2016 before the learned District Judge, Churachandpur, seeking joint hearing of Civil Misc. Appeal No. 2 of 2014 and Civil Misc. Appeal No. 2 of 2015. By order dated 27.11.2018, the learned District Judge, Churachandpur, allowed this application for joint hearing. Aggrieved thereby, Maringmei Khuripou and Kamei Terence filed CRP[C.R.P. Art. 227] No. 1 of 2019 before this Court. The said revision was disposed of, vide order dated 15.04.2019, directing the learned District Judge, Churachandpur, to consider and dispose of the issue relating to the maintainability of Civil Misc. Appeal No. 2 of 2014 before deciding the appeals. Pursuant to this direction, the learned District Judge, Churachandpur, took up the preliminary issue of the maintainability of Civil Misc. Appeal No. 2 of 2014.

[7] The contention of Maringmei Khuripou before the learned District Judge, Churachandpur, was that Civil Misc. Appeal No. 2 of 2014 no longer survived for considerationon merits after the death of Maringmei Thaitoungam who had filed the said appeal, as the right to sue did not survive. It was his case that the prayer of Maringmei Thaitoungam in Judl. Misc. Case No. 3 of 2014 filed in O.S. No. 3 of 2014 was personal in nature and the question of his legal representative stepping into his shoes did not arise as the said legal representative could neither claim himself to be the Chief nor claim to be continuing as Chief in the pending suit, when he was not appointed or functioning as such earlier. He further contended that the said legal representative had to file a separate suit to claim his rights, if any, and could not seek relief in the pending appeal.

On the other hand, Maringmei Acham argued that his claims were not personal in nature but were based on his legitimate rights as the legal heir to the Chiefship/Khullakpaship of Lamdan Kabui Village. It was his case that, as per the customs and traditions of the Kabui tribe, upon the death of the Chief of the village, the eldest of the family clan of the deceased Chief would become the Chief of the village.

[8] After consideration of these rival stands, by order dated 13.05.2019, the learned District Judge, Churachandpur, opined that Maringmei Acham was a necessary party as he was entitled to inherit the properties and rights of his father and had a direct interest in the pending appeal case. The learned District Judge accordingly held that Civil Misc. Appeal No. 2 of 2014 and Civil Misc. Appeal No. 2 of 2015 filed by Maringmei Acham were maintainable. The cases were accordingly adjourned for further hearing on merits. It is against this order that the present revision was filed by Maringmei Khuripou.

[9] By order dated 06.06.2019 passed in this revision, this Court stayed the proceedings in Civil Misc. Appeal No. 2 of 2014.

[10] Be it noted that this revision, as framed, proceeded on the plea of Maringmei Khuripou that the cause of action in the suit and the application filed therein were personal in nature to Maringmei Thaitoungam and therefore, after his death, Maringmei Acham, his son, had no subsisting right to sue in relation to the personal claims of his father. According to him, Maringmei Acham necessarily had to file an independent suit if he wished to claim any rights with regard to the Chiefship of Lamdan Kabui Village. He pointed out that Maringmei Acham never functioned as the Chief of the village and therefore, the question of his seeking a status quo order with regard to being continued as the Chief of the village, during the pendency of the suit, did not arise. He further pointed out that Maringmei Thaitoungam, the sole plaintiff, had himself admitted that he was no longer functioning as the Chief of the village and had sought interim relief to allow him to continue as such, and therefore, Maringmei Acham, his son, could not step into his shoes so as to continue the suit or the appeal filed by his father against the dismissal of his temporary injunction application in the said suit.

[11] It is however significant to note that the suit prayer of Maringmei Thaitoungam was not only to declare him as the existing or continuing Chief of Lamdan Kabui Village but also to declare the order dated 20.01.2014 passed by the Deputy Commissioner, Churachandpur, to be null and void. By the said order, the Deputy Commissioner had approved and validated the claim of Maringmei Khuripou that he was the new Khullakpa/Chief of Lamdan Kabui Village. In effect, the claim of Maringmei Thaitoungam to the said post stood rejected by this order. Unless the said order is set aside, the question of Maringmei Acham seeking any hereditary rights under his deceased father in relation to the Chiefship of the village would not arise. To that extent, Maringmei Acham had an interest in and the right to continue the suit proceedings as the cause of action in relation to the Deputy Commissioner's order dated 20.01.2014 still remained alive for him even after the death of Maringmei Thaitoungam. Therefore, the plea of Maringmei Khuripou that the cause of action in the suit stood extinguished in its entirety upon the death of Maringmei Thaitoungam, the sole plaintiff, cannot be accepted.

[12] That being said, a crucial aspect may now be noted. The entire focus of Maringmei Atcham seems to have been only upon the appeal proceedings and no steps whatsoever were taken in the suit proceedings after the death of Maringmei Thaitoungam. Significantly, he was the sole plaintiff in the said suit, filed in August, 2014. He died on 07.09.2014 itself. Order XXII Rule 3(1) CPC mandates that upon the death of a sole plaintiff with the right to sue surviving, the Court shall cause the legal representative of such deceased plaintiff to be made a party, upon an application made in that behalf, and proceed with the suit. Order XXII Rule 3(2) CPC however provides that if no application is made under Order XXII Rule 3(1) CPC within the time limited by law, the suit shall abate so far as the deceased plaintiff is concerned. As per Article 120 of the Limitation Act, 1963, an application to bring on record the legal representative of a deceased plaintiff would lie within 90 days from the date of the death of such plaintiff and if no steps are taken within this time frame, the suit would abate. As per Article 121 of the Limitation Act, 1963, an application to set aside such abatement would lie within 60 days thereafter and if no steps are taken within that time frame, an application would have to be filed for condoning the delay in seeking the setting aside of the abatement of the suit. This being the procedure contemplated by law, it is relevant to note that Maringmei Acham apparently chose to file an application to be brought on record as the legal representative of his father, Maringmei Thaitoungam, only in the appeal filed by his father against the dismissal of his temporary injunction application and not in the suit proceedings.

[13] When this Court raised this issue during the hearing on 23.02.2021, Mr. S. Abung learned counsel appearing for Maringmei Acham, sought time to ascertain as to whether any application has been filed by his client to be brought on record as the legal representative of the deceased sole plaintiff in the main suit and if so, the result of the said application. Learned counsel then filed an affidavit on 02.03.2021 stating that he had found no relevant record in the Court of the learned Civil Judge (Senior Division), Churachandpur, and that the record of Original (Declaratory) Suit No. 3 of 2014 was available at the District Judge's Court at Churachandpur, along with the appeal record. He further stated that he looked into the said case record and found that no application had been filed to bring the legal representative on record after the death of the sole plaintiff. According to him, the learned counsel at the Trial Court informed him that it is impossible to file an application when the record of the main suit had been called for by the Appellate Court. Surprisingly, he then went on to state that, on 24.02.2021, he had filed an application in the suit, in Judl. Misc. Case No. 13 of 2021, under Order XXII Rule 3 CPC, seeking to implead Maringmei Acham as the plaintiff upon the death of Maringmei Thaitoungam, his father. A copy of the said application was also placed on record.

[14] Needless to state, the very fact that this LR application was received and numbered by the Trial Court despite the absence of the record of the original suit, which is admittedly lying in the District Court, Churachandpur, completely negates the contention of Mr. S. Abung, learned counsel, that the filing of such a LR application earlier was impossible owing to the absence of the original record in the Trial Court. Further, the contention of Mr. S Abung, learned counsel, that it is 'the legal bounden duty' of the Trial Court to implead the LR after the case record in the suit is returned is contrary to the provisions of Order XXII Rule 3(1) CPC, which require an application being made in that regard before the Trial Court permits the LR to step into the shoes of the deceased plaintiff in a case where the right to sue survives.

[15] In effect, Original (Declaratory) Suit No. 3 of 2014 stood abated as long back in December, 2014, itself owing to the death of the sole plaintiff, but the appeal proceedings arising out of the dismissal of an interlocutory application filed in the said suit continued merrily! When the main suit itself no longer survived owing to the operation of law, whereby it stood abated, an interlocutory order passed therein automatically ceased to exist and the examination of the validity of such an order in appeal proceedings by a higher Court would not arise. When the substratum, being the suit proceedings, stood extinguished owing to abatement by operation of law upon the death of the sole plaintiff therein, the superstructure of the miscellaneous appeal filed against an interim order in the said suit must also fall to the ground. The question of considering the validity of such an order on merits in the year 2018 therefore did not arise. When this Court required the Appellate Court to look into the maintainability of the appeal, this fundamental aspect of the matter should have been examined but unfortunately, the Appellate Court chose to examine the issue only on the merits of the order.

[16] Mr. S. Abung, learned counsel, sought to place reliance on case law to contend that the order under revision is sustainable in law notwithstanding the aforestated fatal technicality. However, this Court finds that the judgments relied upon do not further his case. The decision of the Gauhati High Court in Shri Sabu Kehie & Anr. Vs. Shri Sesei (deceased) & Anr. [Civil Revision Petition No. 9(K)of 2011, dated 02.05.2017] was a case where the plaintiffs had filed the suit to declare a particular sale deed null and void. The first defendant in the suit was the vendor under the said sale deed while the second defendant was the vendee. While so, the first defendant died and his LRs were not brought on record within time. The suit thereafter came to be dismissed on the ground of abatement. On these facts, the Gauhati High Court held that the cause of action still survived against the second defendant, the vendee under the sale deed, and therefore, the Trial Court ought to have been liberal and given precedence to doing substantial justice instead of giving precedence to procedural law. The fact situation in the case on hand is entirely different and the ratio laid down in this decision has no relevance presently.

[17] Similarly, the decision of the Gauhati High Court in LA Collector Vs. Shambhu Deb Barma [Civil Miscellaneous Case No. 261 of 1983 (in M.A. (F) No. 58 of 1978), dated 30.08.1983] is also of no relevance. This case turned upon the question as to who should file a LR application upon the death of a party. On facts, the Court found that though the appellant had failed to file such an application, the legal representatives of the deceased respondent had chosen to do so. It was accordingly held that the same sufficed for the purposes of Order XXII Rule 3 CPC. The decision of the Supreme Court in Mohammad Arif Vs. Allah Rabbul Alamin and Ors. (Civil Appeal No. 567 of 1982, dated 15.02.1982) also does not help him. That was a case where the estate of the deceased appellant was duly represented by another party who was already on record and, therefore, the proceedings did not abate. That is not the situation in the present case, as Maringmei Thaitoungam was the sole plaintiff in the suit and the same stood abated long ago due to his death and no steps being taken.

[18] The Supreme Court had occasion to spell out the legal position in relation to Order XXII CPC in Mangluram Dewangan Vs. Surendra Singh and Others: [(2011) 12 SCC 773]. The relevant paragraph reads thus:

'10. A combined reading of the several provisions of Order 22 of the Code makes the following position clear:

a) When the sole plaintiff dies and the right to sue survives, on an application made in that behalf, the court shall cause the legal representative of the deceased plaintiff to be brought on record and proceed with the suit.

b) If the court holds that the right to sue does not survive on the death of the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code.

c) Even where the right to sue survives, if no application is made for making the legal representative a party to the suit, within the time limited by law (that is, a period of 90 days from the date of death of the plaintiff prescribed for making an application to make the legal representative a party under Article 120 of the Limitation Act, 1963), the suit abates, as per Rule 3(2) of Order 22 of the Code.

d) Abatement occurs as a legal consequence of (i) court holding that the right to sue does not survive; or (ii) no application being made by any legal representative of the deceased plaintiff to come on record and continue the suit. Abatement is not dependent upon any formal order of the court that the suit has abated.

e) Even though a formal order declaring the abatement is not necessary when the suit abates, as the proceedings in the suit are likely to linger and will not be closed without a formal order of the court, the court is usually to make an order recording that the suit has abated, or dismiss the suit by reason of abatement under Order 22 of the Code.

f) Where a suit abates or where the suit is dismissed, any person claiming to be the legal representative of the deceased plaintiff may apply for setting aside the abatement or dismissal of the suit under Order 22 Rule 9(2) of the Code. If sufficient cause is shown, the court will set aside the abatement or dismissal. If however such application is dismissed, the order dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code.

g) A person claiming to be the legal representative cannot make an application under Rule 9(2) of Order 22 for setting aside the abatement or dismissal, if he had already applied under Order 22 Rule 3 for being brought on record within time and his application had been dismissed after an enquiry under Rule 5 of Order 22, on the ground that he is not the legal representative.'

[19] It is thus well settled that abatement takes place by operation of law and does not require the passing of an order to come into effect. [See also Perumon Bhagvathy Devaswom Vs. Bhargavi Amma (Dead) by LRs. and Ors. {(2008) 8 SCC 321} and Budh Ram and Ors. Vs. Bansi and Ors.

{(2010) 11 SCC 476}]. Further, Order XXII Rule 9 CPC makes it clear that abatement has a rather serious effect as it bars a fresh suit on the same cause of action where a suit abates. In the light of the aforestated settled legal position, the consequences of the failure of Maringmei Acham to take steps in the suit after his father's death are clear and very much fatal to the maintainability of the appeal filed against the dismissal of his father's temporary injunction application in the said suit.

[20] At the cost of repetition, the contention of Mr. S. Abung, learned counsel, that no steps could have been taken to implead the legal representative of the deceased sole plaintiff in Original (Declaratory) Suit No. 3 of 2014 as the record thereof had been called for by the District Court at Churachandpur, merits no consideration whatsoever. Such an application has now been filed before the Trial Court long after the abatement of the suit and was accepted and numbered despite the fact that the record of the suit is not available even as on date with the Trial Court. Having now filed such an application successfully, it is not open to Maringmei Acham to contend that he could not have taken steps earlier to seek impleadment as the legal representative of his father, the deceased sole plaintiff in the suit, within the time prescribed by law.

[21] On the above analysis, this Court finds that the Appellate Court grievously erred in not taking note of this vital aspect while considering the maintainability of Civil Misc. Appeal No. 2 of 2014 and in limiting itself only to the merits of the matter. Procedure, no doubt, is only the handmaid of justice but cannot be ignored to the extent of dealing with an appeal on merits when the very basis for the order under appeal stood demolished. As already stated supra, once the suit itself stood abated by operation of law, the question of considering the validity of the order dismissing a temporary injunction application filed in the said suit did not arise.

The civil revision petition is accordingly allowed holding that Civil Misc. Appeal No. 2 of 2014 on the file of the learned District Judge, Churachandpur, no longer survives for consideration on merits owing to the abatement of the suit itself.

In the circumstances of the case, there shall be no order as to costs.