New India Assurance Company Ltd. and Another vs Vishal Roadways

J.N. Patel, J.—This revision is filed by the petitioners who are the original plaintiffs against the orders dated 2.2.1993 passed by the Joint Civil Judge, Sr. Dn., Nagpur, on the applications of the petitioners /original plaintiffs for condonation of delay and bringing legal representative of the deceased original defendant under Order 22, Rule4 of the Code of Civil Procedure. The Trial Court also passed an order below the plaint to the effect that the plaintiffs have failed to bring the legal representative on record within the prescribed time and hence the suit is abated. The petitioner No. 1-Insurance Company alongwith the petitioner No. 2 filed a suit for recovery against the original defendant M/s. Vishal Roadways through its proprietor for decree of Rs. 52,77,000/- with interest of 18% P.A. on the decretal amount from the date of the suit till actual realisation of the same.

It so happened that the defendant''s Advocate filed a pursis in the Trial Court informing that the defendant has died on 26.5.1992 but did not finish further particulars and details as to who are the legal representatives of the deceased defendant. It is the case of the petitioners that they came to know on 27.12.1992 that one Yashimbhai is the legal representative of the deceased defendant and he is looking after his business, through their investigators and therefore, on 29.12.1992 the petitioners filed application (Exh. 18) for condonation of delay for bringing the legal representative of the defendant on record and the application (Exh. 19) under Order 22, Rule 4 of the CPC on which the Trial Court passed impugned orders.

It is contended by Mr. Kukde, the learned Counsel for the petitioners that the Trial Court has rejected the applications of the petitioners on mere technicalities which has resulted in manifest injustice to the petitioners. Mr. Kukde further submitted that the petitioners have mentioned good and sufficient reasons in their application for condonation of delay which ought to have been considered by the learned Trial Court. Inspite of that the Trial Court proceeded to pass the order that the suit is abated and the plaintiffs having failed to file any application for setting aside the abatement, the application for condonation of delay cannot be considered and further that as the application for bringing the legal representative on record has not been brought within 90 days which is the prescribed period of limitation, the application is filed.

Mr. Kukde, the learned Counsel for the petitioners submitted that the approach of the Court in considering the application for bringing the legal representative on record even after the abatement of the suit should be liberal. He submitted that this is not a case where the plaintiffs have been negligent in the matter. The petitioner No. 1 being a Public Sector Undertaking could not have known the death of the original defendant till the learned Counsel appearing for the defendant filed the pursis and thereafter the plaintiffs have taken all the necessary steps in order to ascertain the legal heirs of the deceased defendant. In this view of the matter, Mr. Kukde submitted that the Court ought to have set aside the abatement of the suit and allowed the application for condonation of delay for bringing the legal representative of the deceased defendant on record. He further submitted that the Court ought to have considered that the application for condonation of delay implies the prayer for setting aside the abatement of the suit because if the same is granted then the Court would order bringing the legal representatives on record of the defendant. Mr. Kukde, the learned Counsel for the petitioners relied upon the following cases in support of his contentions.

(i) Union of India (UOI) Vs. Ram Charan and Others, .

(ii) Smt. Shakuntala Devi Vs. Banwari Lal and Others, .

(iii) Lal Singh Vs. Gurnam Singh and Others, .

(iv) State of Madhya Pradesh Vs. S.S. Akolkar, .

(v) Rama Ravalu Gavade Vs. Sataba Gavadu Gavade (Dead) through Lrs. and Another, .

Order XXII of the CPC deals with the procedure in respect of Death, Marriage and Insolvency of parties. Rule 4 of Order XXII provides the procedure in case of death of one of several defendants or of sole defendant, Sub-rule 3 of Rule 4 of Order XXII provides that where within the time limited, by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant.

Sub-rule 5 of Rule 4 of Order XXII provides,

Where--

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence abated, and

(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application u/s 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act. The Court shall, in considering the application under the said Section 5 have due regard to the fact of such ignorance, if proved,

Under the Limitation Act, 1963, Article 120 provides that under the Code of Civil Procedure, to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent made a party, the period of limitation is 90 days and it begins to run from the date of death of the plaintiff-appellant, defendant or respondent as the case may be. Article 121 provides the period of limitation for an order to set aside an abatement as 60 days and the period begins to run from the date of abatement. On considering the provisions of Order XXII alongwith the Limitation Act, 1963, it is clear that the plaintiffs should apply to the Court for bringing the legal representative of the deceased defendant within a period of 90 days from the date of his death and in case the plaintiff fails to do that and no application is made under Sub-rule 1 of Rule 4, then the suit shall abate as against the deceased defendant and for setting aside this abatement Article 121 provides a period of 60 days. In the present case, the sole defendant died on 27.5.1992 whereas the application for condonation of delay Exh. 18 and application for bringing the legal representative under Order XXII, Rule 4 came to be made on 29.12.1992. Admittedly, in the present case the plaintiffs did not apply to the Court within the prescribed time for bringing the legal representative of the deceased defendant on record and the suit abated against the defendant.

In his application for condonation of delay under Order XXII, Rule 4 of the CPC (Exh. 19) the plaintiff specifically contended that he came to know that the defendant died on 26.5.1992 because of the pursis filed by the defendant''s Advocate as required by Rule 10- A of Order XXII. The learned Counsel for the petitioners was not able to inform this Court as to when the pursis came to be filed by the Advocate for the defendant informing the Court of the death of the sole defendant which is quite material to appreciate the case of the petitioners for condoning the delay as the period from 27.5.1992 i.e. the date on which the sole defendant died till it came to the knowledge of the plaintiffs, when the Advocate for the defendant informed the Court, can be safely considered for condonation of delay. But it is the case of the plaintiffs in their application for condonation of delay which is Exh. 18 that the plaintiff was not aware of the legal representative of the deceased defendant and, therefore, he could not apply to the Court till he came to know about it on 27.12.1992 that one Yashimbhai s/o Abdul Razaque is the legal representative of the defendant and has stepped into the shoes of his father as the proprietor of M/s. Vishal Roadways i.e. the defendant and immediately within two days i,e. on 29.12.1992 the plaintiffs moved these two applications for consideration of the Court. In ordinary course, the Court ought to have issued notice to the proposed legal representative of the sole defendant of the application made by the plaintiff under Order 22, Rule 4 of the CPC and for condonation of delay. This is also necessary because a vested right is created in such a person who is proposed to be added as the defendant by the plaintiffs, for failure of the plaintiff to make an application to the Court within the prescribed period of limitation his suit against the defendant stand abated. The learned Trial Court has not adopted any such procedure. As can be seen from the order passed by the learned Trial Court, it appears that the Court took up the matter for hearing on 2.2.1993 and disposed of the applications by the impugned orders. The order passed below Exh. 18 i.e. the application for condonation of delay indicates that the Court was obsessed with the fact that in law the suit is abated and there is no application filed by the plaintiff for setting aside the abatement and the said application for condonation of delay is required to be filed. I find that the Trial Court fell in error in doing so and that is why the order passed below application under Order XXII, Rule 4 reflects that the application was not considered.

Mr. Kukde the learned Counsel for the petitioners states that the Advocate appearing for the plaintiffs in the Trial Court in adversity failed to make the prayer for setting aside abatement of the suit and for this the petitioners/original plaintiffs should not suffer. He further submitted that this Court should approach the default on the part of the learned Advocate appearing for the petitioners in the Trial Court with liberal mind in order to do justice to the petitioners. Mr. Kukde, the learned Counsel for the petitioners further submitted that this Court can very well direct the Trial Court to consider the case of the plaintiffs for amendment of the application for condonation of delay so that the plaintiffs can be afforded an opportunity to make a prayer for setting aside the abatement in order to remove the technical obstacles in the way of the Court in granting the prayer for setting aside the abatement.

In a case of Lal Singh Vs. Gurnam Singh and Others, , Punjab High Court relied upon the case of Bachan Ram v. Gram Panchayatjonda AIR 1971 P & H and the case of Union of India v. Ram Charon AIR 1964 SC and held that--

Where application to bring on record legal representatives of the deceased appellant was made after time prescribed therefore by law, i.e. the appeal l\\ad been abated the application should be treated as an application to set aside abatement of appeal also even though no such specific prayer was made in the appeal and the matter should be decided after allowing the parties to lead evidence as to whether there was sufficient cause for setting aside the abatement or not.

In a case of Smt. Shakuntala Devi v. Banwari Lal and Ors., Allahabad High Court relied upon the case of Punjab High Court in Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram, Ahmedabad and Others, , wherein it was held;

Merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it. Procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material is on the record, it cannot promote the ends of justice, if that material is ignored and the relief refused to the appellant, merely because he had not claimed it by means of a formal application in writing or that a formal affidavit was not filed. The language of Section 5 also does not provide that an application in writing must be filed before relief under the said provision can be granted.

Which decision as based on the Division Bench decision of the Allahabad High Court in Mt. Kulsoomun Nissa and Another Vs. Noor Mohammad alias Sultan Haider and Another, , and held that the separate and formal application u/s 5 of the Limitation Act for condonation of delay and setting aside the abatement need not be made.

On considering the above two decisions relied upon by the petitioners, this Court finds that the Trial Court ought to have given an opportunity to the plaintiff; to amend their application for condonation of delay and permitted them to add the prayer for setting aside the abatement which was merely a technical formality but necessary requirement of the procedural law.

Further as held in the case of Sataba Gavade and Rama Ravalu Gavade cited supra, the Apex Court has observed that the applications for setting aside the abatement and condonation of delay in filing the applications to bring the legal representative on record should be considered liberally and particularly in the case of Government Undertaking for public Justice.

In the facts and circumstances of the ca se, I find that the impugned orders deserve to be set aside as the Court has failed to exercise jurisdiction vested in it by not considering the applications made by the petitioners/original plaintiffs in its proper perspective and hence the following order.

ORDER

The Application is allowed. The impugned orders on Exhs. 18,19 and below the plaint are set aside. The Trial Court is directed to consider the application of the plaintiffs for amendment of the application for condonation of delay in order to add prayer for setting aside the abatement which the plaintiffs would make within the period of two weeks and thereafter issue notice to the proposed defendant whom the petitioners/plaintiffs want to substitute as legal representative of the original defendant and after considering the case on merit dispose of the matter in accordance with law. Certified copy is expedited.