Mst. Jayrajua (deceased) through Lr. Ramsajivan vs Dwarika and Others

S.C. Pandey, J.

This is a plaintiff''s appeal under Order 43 Rule 1 (k) of the CPC against the orders dated 19.11.98 and 17.2.99 passed by ku. Sushma Khosla, Additional District Judge, Rewa.

The learned counsel for the appellant had filed an application u/s 5 of the Limitation Act. It was stated that he had filed this appeal against both the orders dated 19.11.98 and 14.2.99. On 22.3.99, however, at the time of filing of appeal due to inadvertant error in his office only order dated 17.2.99 was annexed with the memo of appeal. He filed the certified copies of the orders dated 19.11.98 on 29.6.99. It was claimed that the appeal would have been within limitation if the order dated 19.11.98 was filed along with the memo of appeal on 22.3.99.

The certified copy filed on 29.6.99 shows that an application for obtaining the certified copy was made on 17.12.98 and it was ready on 10.2.99. It cannot be disputed that after excluding the time for obtaining the certified copy the appeal filed on 22.3.99 against the order dated 19.11.98 would have been within time if its certified copy was filed along with the memo of appeal.

I have heard the counsel for the parties on the point. In my opinion, there is sufficient cause for condonation of delay u/s 5 of the Limitation Act. The appellant cannot suffer, on account of the inadvertant mistake of the counsel for the appellant. The memo of appeal filed on 22.3.99 indicates that there was intention to file appeal against both the orders dated 19.11.98 and 17.2.99. Therefore, it must have been an accidental slip or omission which must have caused the error of not filing the certified copy. For such genuine error, of the counsel for the appellant, the party cannot be punished. The interlocutory application dated 29.6.99 filed u/s 5 of the Limitation Act is hereby allowed. Delay in filing the certified copy is hereby condoned.

The learned counsel for the respondent has, however, raised a preliminary objection to the effect that when the court rejected the whole suit, as abated, by order dated 17.2.99, the question of filing an appeal under Order 43 Rule 1 (k) of the CPC did not arise. The order dated 17.2.99 amounted to a decree. The learned counsel referred to the Full Bench decision of this court in the case of Mitthulal and Others Vs. Badri Prasad and Others, and contended that subsequent order dated 17.2.99 holding that the cause of action did not survive at all against the remaining defendants, as distinguished from Ramavatar the deceased defendant No.2, was in fact a decree. The question whether cause of action survived on abatement of suit against the legal representatives of the defendant No.2 would be a decision on merits. It would not be a part of an order refusing to set aside abatement under Order 43 Rule 1 (k) of the Code of Civil Procedure.

In reply to the arguments of the learned counsel for the respondent, it is contended by the learned counsel for the appellant that the consequential order of refusal to set aside abatement is covered by Order 43 Rule 1 (k) of the Code of Civil Procedure. It is, therefore, appealable as such. An appeal lay. The learned counsel for the appellant relied upon the decision of the Supreme Court reported in Madan Naik (Dead) by Legal Representatives and Others Vs. Hansubala Devi and Others, wherein it has been held that the order of refusal to set aside abatement and further order of consequential dismissal of suit would not amount to decree. There was no question of drawing up of a decree as the suit had already abated by the death of a party.

In order to appreciate the controversy on the question of tenability of an appeal, it would be necessary to state shortly the facts of the case. The defendant No.2 Ramavatar died on 10.8.96. An application for substitution of his legal representatives was filed on 20.9.98. An application for condonation of delay in filing the application for substitution was filed on 17.8.98.

The court by impugned order dated 19.11.98 refused to set aside abatement which took place on death of Ramavatar whose legal representatives were not brought on record within ninety days of his death. The court below refused to set aside abatement and condone the delay in bringing the legal representatives of defendant No.2 Ramavatar on record. The consequence was that it held that the suit abated against the interest of Ramavatar. Accordingly, the trial court passed the order dated 14.11.98 that appeal abated against Ramavatar. The counsel for the respondents does not dispute that the order was appealable, as such, under Order 43 Rule 1 (k) of the Code of Civil Procedure. However, the court further determined, if the suit abated as a whole and passed the order dated 17.2.99. It is contended on behalf of the respondents that the order amounts to a decree, and, therefore, the appellant should have filed a first appeal against that decree dated 17.2.99 wherein the appellant could also challenge the order dated 14.11.98. This order had merged into the decree dated 17.2.99 which determined the rights of the plaintiff conclusively determining that the cause of action did not survive.

If there be a single plaintiff or a defendant, whose legal representatives are not brought on record, within ninety days as per Article 120 of the Limitation Act, 1963, the suit shall abate. The remedy of the plaintiff is to file an application under Order 22 Rule 3 or Order 22 Rule 4 of the CPC on the death of sole plaintiff or the defendant according to the applicability of either of the rule. If the application is within ninety days of the death, there shall be substitution. On expiry of ninety days, an application under Order 22 Rule 9 of the CPC has to be filed within sixty days of the date of abatement as per Article 121 of the Limitation Act, 1963. The plaintiff may have a remedy of filing an application for condonation of delay u/s 5 of the Limitation Act, 1963 and filing the application for setting aside the abatement. The Order 22 Rule 3 and 4 of the Code would apply to appeals too. However, the appellant then is required to perform the function of the plaintiff as per Order 22 Rule 11 of the Code of Civil Procedure. However, when there be death of one of the plaintiffs, out of several plaintiffs, or one of the defendants, out of several defendants, the death of the deceased does not cause the entire suit to abate ordinarily. The same principle applies to appeal. This principle is expressed by saying that the abatement of the suit or appeal is limited to the extent of share or interest of deceased in the subject matter of the suit or appeal. There is exception to this rule of partial abatement. The exception operates upon the nature of suit or appeal. If the cause of action in the suit or the subject matter of appeal is such that it is impossible to grant relief to the surviving plaintiff or the appellant, then the court has no option to hold that the suit or the appeal abates as a whole. Usually the whole claim of the plaintiff or the subject matter of appeal consequent to a decree has to be examined for this purpose. When it appears to the court that the relief claimed in the suit or in appeal cannot be granted without presence of legal representatives of the deeased person, it would be held that the suit or appeal abates as a whole. The decision of the court below that it was not possible to proceed in the suit without the presence of the legal representatives of Ramavatar is said to be the decision on the rights of the parties. The determination that the cause of action and reliefs that flow from it are single and indivisible is said to be a determination of the substantive rights of the parties conclusively and consequent dismissal of suit of the appellant, it is argued, is a decree within the meaning of section 2(2) of the Code of Civil Procedure.

The'' Rule 9 of Order 22 of the CPC reads as under -

Effect of abatement or dismissal -(1) Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff 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 of dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provision of section 5 of the Indian Limitation Act, 1877 (15 of 1877) shall apply to applications under sub-rule (2).

Explanation -Nothing in this sub-rule shall be construed as barring, in any later suit, as defence based on the facts which constituted the cause of action in the suit which had abated, or had been dismissed under this Order.

The Order 43 Rule 1 (k) of the CPC may be reproduced as follows :-

ORDER XLIII

APPEALS FROM ORDERS

Appeals from orders -An appeal shall lie from the following orders under the provisions of section 104, namely, -

xxx xxx xxx

(k) an order under Rule 9 of Order XLIII refusing to set aside the abatement or dismissal of a suit.

Xxx xxx xxx

The sub-rule (1) of Order 22 Rule 9 of the CPC bars a fresh suit when the suit ''abates'' or is ''dismissed''. The sub-rule (2) of Order 22 rule 9 thereof also uses words ''abatement and ''dismissal'' which grammatication variations of the words ''abates'' and ''dismissed'' employed in sub-rule (1) respectively. The Order 43 Rule 1 (k) of the Code also utilizes the same cognate variations of the words ''abates'' and ''dismissed''. The learned counsel for the respondents argued that words ''abates'' and dismissed with their cognate variations mentioned above are used in different senses. He argued that the word ''abates'' was used as a consequence to death; whereas the word ''dismissed'' was used to show the result of neglect of the assignee or receiver within the meaning of Order 22 Rule 8 of the Code of Civil Procedure. It prima facie appears that the above Rule 8 of Order 22 of the Code is confined to suits filed by a person who is subsequently declared as insolvent but wherein his assignee or the receiver and may like to continue for the benefit of the creditors such suits do not abate on a person being declared as an insolvent. The suit may be dismissed if aforesaid persons neglect to continue the suit or refuse to give security for costs (unless otherwise directed). It is urged that the legislature had this rule in mind when used the word ''dismissed'' under sub-rule (1) of Order 22 Rule 9 of the Code and had used the words ''set aside abatement or dismissal'' in sub-rule (2) of Order 22 Rule 9 of the Code of Civil Procedure.

In the opinion of this court, the contention of the learned counsel for the respondents cannot be accepted. The abatement of suit is consequence of not bringing the legal representatives of the deceased party on record within the prescribed time partially or wholly and the dismissal of the suit pursuant to an order of the court that the assignee or receiver had neglected to continue the suit or failed to furnish security for costs are treated by the Legislature on the same footing. In both cases, no fresh suit can be brought on the same cause of action. The word ''abatement'' is wide enough to include within itself the declaration by an order of the court that the entire suit cannot proceed. It hardly matters that in this particular case the court passed two orders instead of one. The way the trial court proceeded to decide the matters would not be germane for determining if a decree is passed by subsequent order. The more important question cannot be forgotten that abatement occurs, whether it be partial or whole on account of the fact that the legal representatives of a deceased party are not brought on record within 90 days as per Article 120 of the Limitation Act, 1963. Further it should be borne in mind that ''abatement'' or ''dismissal'' of the suit bars a fresh suit. The consequence is the same for the purpose of sub-rule (2) or Order 22 Rule 9 of the Code. In the opinion of this court, the use of the words "abates or is dismissal under this order" in the aforesaid sub-rule (1) of Order 22 Rule 9 of the CPC points out the same consequence and, therefore they must be kept on co-equal pedestal for the purpose of interpretation. Same is the fate of words ''abatement or dismissal'' in sub-rule (2) of Order 22 Rule 9 of the Code of Civil-Procedure. The rule of noscitur a soclis would be applicable. Association of the words with one another gives them a particular colour. If the associated words point out to one consequence that abatement and dismissal shall destroy a cause of action and no suit can be brought on the same ''cause of action'', it can be presumed that the words were used in similar sense. In the opinion of this court, the word ''abatement'' cannot be confined to partial abatement alone and not consequential abatement of the entire suit. The under narrow construction of the abates or abatement to partial abatement would result in an anomaly, because sub-rule (2) of Rule 9 of Order 22 of the Code shall permit setting aside of dismissal of entire suit on behalf of an insolvent person under Order 22 Rule 8 but not under Order 22 Rule 3 or 4 of the Code of Civil Procedure. The court, therefore, holds that the words ''abatement'' or ''abates'' used in Order 22 Rule 9 of the Code includes the abatement of a suit as a whole.

This court is further of the opinion that if abatement of the whole suit would amount to a decree, then the question of making sub-rule (1) of the Order 22 Rule 9 of the Code did not arise. The very enactment of this rule permits to the contrary. If it were a decree, then section 11 of the Code would bar a fresh suit. Then sub-rule (1) of Order 22 Rule 9 of the CPC would come at ease. Thus even the order dated 17.2.99 is an appealable order under Order 22 Rule 9 (2) of the Code of Civil Procedure. Such an appealable order is expressly excluded from the definition of decree u/s 2(2) of the Code of Civil Procedure.

It is true that Full Bench in the case of Mitthulal and Others Vs. Badri Prasad and Others, had stated that when the court holds that right to sue does not survive, it would be a decree. In the opinion of this court, the decision that right to sue does not survive is altogether different question. The Order 22 Rule 1 of the CPC says that there shall be no abatement by the death of plaintiff or defendant, provided right to sue survives. Here the court is required to determine in a given case if ''right to sue'' survives at all before allowing an application for bringing the legal representatives of the deceased on record. The question has to be determined before applying Order 22 Rule 3 or 4 of the Code of Civil Procedure. When the nature of suit is such that there is dispute regarding continuance of suit by the legal representatives of a plaintiff or against the legal representatives of the defendant and it is held that suit cannot continue, it would be a decree. Here the decision is regarding the rights of the deceased plaintiff or defendant, as the case may be. Such a decision may be a decree. This case is, therefore, distinguishable.

In any case, the decision of the Supreme Court reported in Madan Naik Vs. Hansubala (supra) lays down at page 679 as under :-

Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9(1) that no fresh suit could be brought on the same cause of action. Therefore, when the appeal abated, there was no decree, disposing of the first appeal, only course open is to move the court for setting aside abatement. An order under Order 22, Rule 9(2) C.P.C. refusing to set aside abatement is specifically appealable under Order 43 Rule 1 (k). Such an adjudication, if it can be so styled, would not be a decree as defined in Sec. 2(2) C.P.C. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any court subordinate to the High Court on the ground therein set out. What is worthy of notice is that second appeal lies against a decree passed in appeal. An order under Order 22 Rule 9 appealable as an order would not be a decree.

The essential facts of that case are as follows : In that case, abatement was as a result of the death of one of the respondents during the pendency of the first appeal. In the first appeal, the court held that application for substitution was barred by time and refused to set aside abatement on the ground that there was no case for condonation of delay and by the same order held that the appeal abated in its entirety. The Supreme Court held that such an order of refusal to set aside abatement was an appealable order under Order 43 Rule 1 (k) of the CPC and not a decree appealable u/s 100 of the Code of Civil Procedure. The decision of the Supreme Court is binding to this court and, therefore, also no different conclusion can be arrived at. The preliminary objection of the learned counsel for the appellant is rejected. It is held that both the orders are appealable under Order 43 Rule 1 (k) of the Code of Civil Procedure.

The next question that is required to be determined in this appeal is if the appellant had explained the delay in not filing the application for setting aside the abatement and shown sufficient cause for setting aside the abatement as a consequence of the death of Ramavatar, the defendant No.2, who died on 10.8.96. The appellant filed an application for substitution on 20.9.98. The appellant had not filed an application for setting aside abatement till 20.9.98, nor did he file any application for condonation of delay in filing the application for setting aside abatement. Thereafter the appellant filed an application for condonation of delay on 17.11.98. On contest by the surviving defendants, who filed reply dated 25.9.98 to the application for bringing the legal representatives of defendant No.2 on record, it was held that the suit abated not only against defendant No.2, but also against all the defendants.

In this appeal, the learned counsel for the appellant had argued that there was good case for holding that there was sufficient cause for not filing the application for setting aside abatement and filing the application for setting aside abatement. The counsel for the respondents, on the other hand, disputes and supports the conclusion of the trial court.

Legally speaking, the appellant should have filed an application for setting aside abatement within sixty days explaining the delay in not filing the application for sub-stiution within 90 days. Having failed to do that, the application for setting aside abatement should have been accompanied by an application for condonation of delay in filing that application for setting aside abatement explaining the delay why it could not be filed within sixty days of abatement. However, the appellant had missed the second step and directly filed the application for condonation of delay in filing the application for substitution dated 20.9.98. There is no prayer in any application for setting aside abatement. In absence of the prayer for setting aside abatment in the application for condonation of delay dated 17.11.98, it is not possible to say that the appellant wanted setting aside the abatement. The appellant could not directly get the delay in filing the application for substitution condoned without praying the abatement be set aside.

However, the court below has decided the case of the appellant without going into the question of setting aside abatement. This court too considers the prayer of the appellant in appeal to set aside the abatement and condone the delay in filing the application for setting aside abatement on metits. It is urged by the counsel for the appellant that delay in each case deserves to be condoned. The facts on record show that Ramavatar died on 10.8.96. Therefore, the suit would abate against him on expiry of 90 days from his death. The application for substitution was filed on 20.9.98. The delay for intervening period has to be explained. It is true that on the day of the death of Ramavatar, the record of the civil suit was sent to the Chief Judicial Magistrate. The finding of ''he trial court is that the appellant came to know about the death of Ramavatar in 19.9.96. No step was taken by the appellant for filing the substitution application within 90 days of the death of Ramavatar. The argument showing the ''sufficient cause'' for condoing the delay is (i) that the record of the case was not in court, (ii) that the opposite party did not make a statement about the death of Ramavatar to the appellant in civil court, (iii) that the counsel for the defendants continued to appear as if Ramavatar was alive, (iv) after receipt of the record on 20.8.97, the case was transferred to the Additional District Judge, Rewa, who, at the instance of the parties, sent the case to Lok Adalat on 29.8.97, (v) in Lok Adalat, the ''cause title'' of the case was amended on 4.4.98, showing the legal representatives of Ramavatar, (vi) the compromise did not take place till 15.7.98, and (vii) thereafter, when the case was again sent back to the court of Vth Additional District Judge, Rewa, the appellant filed an application under Order 22 Rule 3 of the CPC (which should have been under Order 22 Rule 9 of the Code on 20.9.98).

It is urged that all those circumstances, together with the conduct of the counsel for the defendants, in themselves, make sufficient cause for condonation of delay as well as for setting aside the abatement. The learned counsel for the appellant, however, did not dispute the fact that the appellant had the knowledge of the death of Ramavatar on 9.9.96. The question is, if these circumstances cumulatively constitute sufficient casue for setting aside abatement and further permit the court to hold that there was ''sufficient casue'' for condonation of delay. It was not disputed before me that the appellant did not know about the death of Ramavatar on 19.9.1996. This finding was not challenged before me. Even otherwise, the finding appears to be based upon the matters on record and it is difficult to escape from this conclusion. What prevented the appellant from filing the application for bringing the legal representatives on record, is not clear between 19.9.96 and 20.9.98 ? The time lag is of two years. The court below found that the appellant was unable to show as to why he did not file the application for substitution within 90 days, and further could not state any cogent reason for not filing the application for setting aside abatement. It has been found thatlhe parties use to regularly appear before the trial court, as an order sheet was opened averting receipt of record. Even after the record was received from criminal court on 29.8.97, no effort was made to file the application. Thereafter when the record of the case was received from Lok Adalat, ho steps were taken. The case was fixed for evidence on 20.8.98. Then only on 29.9.98, an application for bringing the legal representatives of Ramavatar was filed. It is true that the court must act liberally while determining the ''sufficient cause''. However, liberty can be shown only for cogent reasons the appellant was unable to explain the delay and, therefore, taken umbrage under the fact that the case-file was not in the court. However, it is not denied that the parties gave their attendence in the court during the period the file was with, the criminal court. It is not the case of the appellant that any attempt was made on his behalf to file an application for substitution. Further no attempt was made in Lok Adalat or immediately after the record was received. It is true that we must ''interpret'' sufficient cause to advance justice. However, this principle can be applied when evidence on either side is fully balanced. However, there is huge gap in our knowledge: It appears, the appellant was unable to explain fully the legitimate cause for delay of two years. The events relied upon by the appellant are tenuous. The appellant cannot take advantage of his own somnambulism.

It has been fervently urged that the appellant should not be slaughtered by the procedural sword. There is not question of any slaughter. The procedure is designed to substantial justice. However, the law also recognises that the life of a man is short, if not ''nasty and brutish'' The law of limitation is made with a view to speedy determination of rights. It is not made to destroy but to fulfil. The fulfilment is achieved by helping those who are on their toes and not those who suffer from sleepiness over their rights. Time-frame is equally important. Why should the respondents suffer in the court of law despite the appellant did not file the application for two years after the death of Ramavatar ? Why should the opposite party suffer because the appellant was sleepy ? To this conundrum, there is no answer. The law gives the appellant sufficient rights even after abatement but requires the appellant to take a reasonable and legitimate stand. The appellant has, however, come with vague plea. How could the court do justice to opposite party giving the appellant total carte blanche. This cannot be done to both the parties. Judicial balance cannot be tilted so much in favour of a party. To do so would mean bowing out to an emotive vulgar response. Hardship can be assuaged within legal parameters. The courts cannot cross the riluicon of a legal parameter. To go further is not the function of the court.. The human justice is finite and limited. It cannot assume the role of God''s mercy which is infinite and boundless. In short, to do justice is to do it to both the parties. This court finds that the ends of justice shall not meet if this court takes one-sided view of the matter. The appellant has violated the time-frame without reasonable explanation. Two years are large chunk of life, in case of a human being. In absence of strong and proper explanation, It is difficult to condone the delay of two years.

The result is that the order dated 19.11.98 is maintained. The consequential order dated 14.2.99 is also upheld. The suit cannot proceed. It is abated as a whole.

No other point was urged before me.

The appeal is devoid of any merit. It is dismissed. No costs.