Pooran and Others vs Surya Lal and Others

Sanjay K. Agrawal, J.—The short question that arises for consideration in this revision is whether legal representative brought on record by substitution in the interlocutory proceedings (restoration proceedings), would enure for the benefit of entire proceeding including that of suit on restoration to its original number. This is revision under Section 115 of the Code of Civil Procedure (for short ''the C.P.C.'') filed by the applicants/plaintiffs questioning the legality and propriety of the order dated 5.8.2010 passed by 1st Additional District Judge, Surajpur, District Surguja in Civil Misc. Appeal No. 03/2008 whereby the lower appellate court has affirmed the order of trial Court dated 23.10.2008 dismissing the suit of the plaintiffs as abated.

Plaintiffs filed a civil suit for declaration of title and permanent injunction on 04.07.1979. The said suit was dismissed for want of prosecution on 24.04.1991. Application under Order 9 Rule 9 of C.P.C. for restoration of the said civil suit was filed by the plaintiffs on 25.11.1991. In the meanwhile, original plaintiff jugra died on 09.02.2001 and the application for substitution was filed on 11.02.2001 and the application for substitution was allowed on 09.04.2002. The suit was restored to its original number on 24.01.2008.

After restoration of the civil suit to its original number, when the hearing of the suit commenced, an application for substitution of legal representatives in the suit was filed by the legal representatives of the original plaintiff, which has been rejected by the trial Court on 23.10.2008 and consequently suit was dismissed as abated.

Against the order of dismissal of suit being abated, an appeal was filed by the plaintiff filed Order 43 Rule 1(k) of C.P.C. The first appellate Court dismissed the same and confirmed the order passed by the learned trial Court holding that the plaintiffs have not filed duly constituted application for substitution of legal representatives within time in accordance with law and, therefore, the suit is dismissed as abated. Against that, the instant revision has been filed.

Mr. A.K. Prasad, learned counsel appearing for the applicants/plaintiffs, while relying on the judgment of the Supreme Court in case of Mithailal Dalsangar Singh and Others Vs. Annabai Devram Kini and Others, would submit that the plaintiffs have already filed application for substitution of legal representatives, that has been allowed by the trial Court in the restoration proceedings under Order 9 Rule 9 of the Code of Civil Procedure. He would further submit that if any application for substitution of legal representatives is filed in any stage of proceeding and that application is granted directing substitution, then the same would in all the subsequent proceedings including that of suit and even if application for substitution was not filed within time, the trial Court ought to have given time to filed the said application and order holding suit to be abated deserves to be set-aside.

Per contra, Shri Sarfaraj Khan, learned counsel appearing for the respondent No. 1/defendant would submit that the miscellaneous Appeal filed under Order 43 Rule 1(k) of the Code of Civil Procedure before First Appellate Court against the order dated 23.8.2010 was not maintainable and consequently, the instant revision filed against the order passed in dismissing the appeal under Order 43 Rule 1(k) of the Code of Civil Procedure is not maintainable. He would further submit that the remedy of the applicants/plaintiffs was to file 227 proceedings challenging the order dated 23.8.2010 dismissing the suit as abated.

I have heard learned counsel appearing for the parties and perused the records of both the court below.

The trial Court, by its order dated 23.10.2008, has dismissed the suit as abated by rejecting the application for substitution.

Order 43 Rule 1(k) of the Code of Civil Procedure provides as under:-

"Order 43 Rule 1 Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:-

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(k) an order under rule 9 of order 22 refusing to set aside the abatement or dismissal of a suit:"

The question that falls for consideration is whether against the order dated 23.10.2008 dismissing the suit as abated, misc. appeal under Order 43 Rule 1(k) of the C.P.C. was maintainable or not.

By order dated 23.10.2008, the trial Court rejected the plaintiffs'' application for substitution and in absence of legal representatives of the plaintiffs on record dismissed the suit as abated. Under Order 43 Rule 1(k) of the CPC, the appeal lies against an order passed by the trial Court refusing to set aside the abatement. As already indicated herein above a prayer seeking substitution of the heirs and legal representatives of a deceased plaintiff and bringing them on record in his place is wide enough to include within its ambit the prayer of setting aside the abetment which had already set in. In the circumstances, therefore, the rejection of the application filed by the plaintiffs seeking to bring on record the heirs and legal representatives of the deceased plaintiff has to be treated as a refusal to set aside the abatement appeasable under Order 43, Rule 1(k) of the Code of Civil Procedure. The order passed by the trial Court was, therefore, appealable under Order 43, Rule 1(k) of the Civil Procedure Code.

Reverting back to the main contention raised by Mr. Prasad, that the substitution of the legal representatives of the plaintiffs in the restoration proceedings (interlocutory proceedings) would enure for the benefit of the entire proceedings including that of suit.

The fact remains that during pendency of the restoration proceedings (MJC Case No. 1/1991), legal representatives of the original plaintiff-Jugra were substituted on record by order dated 9.4.2002 and, thereafter, the suit was restored to its original number and put for trial and during the pendency of the said civil suit, application for substitution was filed without any application for setting aside abatement and application for condonation of delay. Though, the applications for setting aside abatement and for condonation of delay was not filed but since the legal representatives were already brought on record in the restoration proceedings, the trial court ought to have granted time to file suitable application taking into consideration that substitution has already been in the restoration proceeding.

The Privy Council in case of Judicial Committee in Brij India Singh v. Kashi Ram, AIR 1917 PC 156 has held that introduction of plaintiff or defendant for one stage of the suit is a introduction of all the stages. In this case pending a suit an application was made for directing a party to produce certain books and that was ordered by the District Judge. Thereafter an application was made to the Chief Court to revise the order of the District Judge. Pending the revision the plaintiff and the 2nd defendant died. Within the prescribed time legal representatives were brought on record in the revision. Subsequently that revision was dismissed as withdrawn. The legal representatives of the plaintiff and the 2nd defendant were not brought on record in the suit within the time prescribed. The question was whether the suit had abated. The Judicial Committee held that the suit did not abate and the following reasons were given for that view:

"The plaintiff as representative of the original plaintiff, and the defendant''s representatives of Joti Lal, had been introduced in the Chief Court. No doubt that was only done in the course of interlocutory application as to the production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages, and the prayer, which seems to have to have been made abmajorem cautelam, by the plaintiff, in his application to the District Judge Prenter under Section 365, was superfluous and of on effect. Coates, the judgment-debtor, was only formally called, and the non-presence of his representatives would afford of his representatives would afford no ground fro the abatement of the suit."

The Supreme Court in case of Mithailal Dalsangar Singh and others (supra) has held as under:-

"11. There is yet another aspect of the matter. As we have already noticed, the appeal against the order of ad interim injunction passed by the learned trial Judge was pending before the Division Bench. Therein the defendants had themselves moved an application for bringing on record the legal representatives of the deceased plaintiff, that is, the respondent in their appeal. The legal representatives being brought on record at any stage of the proceedings enures for the benefit of the entire proceedings. The prayer made by the defendants in their appeal for bringing on record the legal representatives of the deceased plaintiff-respondent in appeal was not opposed by the legal representatives or by any of the co-plaintiffs. Rather the prayer was virtually conceded to by the legal representatives themselves moving an application for being brought on record in the suit in place of the deceased plaintiff. In our opinion, the application made by the defendant-appellants in the appeal once allowed would have the effect of brining the legal representatives on record, not only in the appeal but also in the suit. All that would remain to be done is the ministerial act of correcting the index of the parties by the applicants in appeal and then in the suit. In view of the defendants themselves having sought for impleadment of the legal representatives in the appeal the delay in moving the application in the suit by the legal representatives, being subsequent in point of time, became meaningless."

In the instant case, admittedly, in the restoration proceedings the legal representatives were brought on record within the prescribed period of limitation and the suit was restored to its original number. Thus, the restoration was of the suit. In the said restoration proceedings, the suit was restored and the legal representatives have been brought on record in accordance with law. It is only ministerial work for the office to make necessary corrections in the plaint and the substitution in the restoration proceedings would be deemed to be sufficient enough, for the continuance of the suit, otherwise it would be absurd. Suppose, the restoration petition remained pending for years together where substitution has been effected within time. If on restoration of the suit the party is again required in law to take steps for substitution, it would be highly barred by time even from the date of knowledge, it well be permissible by the other side to contend that substitution should not be allowed.

Thus, once substitution is effected in connected restoration proceedings and the suit is restored to its original number and such substitution would ensure for the benefit of the suit also, thus, the trial Court has committed a grave jurisdictional error in rejecting the application without taking into consideration that substitution has already been done by the plaintiffs, well within time in restoration proceeding by order dated 9.4.2002 which would ensure for the benefit of suit also and that order was never challenged by the defendants in the higher forum and that has become final. It is accordingly held that substitution made by party to suit in the interlocutory proceedings such as restoration proceedings would ensure for the benefit of the other proceedings including that of suit.

Resultantly, the Civil Revision is allowed. The order passed by the trial Court dated 23.10.2008 and the appellate order dated 5.8.2010, being not sustainable in law, deserve to be and are hereby set aside. The applications for substitution filed by the plaintiffs are allowed and plaint will be corrected and legal representatives will be brought on record in conformity with the substitution already effected in restoration proceedings. Civil Suit No. 35-A/97(17-A/84) disposed by Court of Civil Judge, Class-I, Surajpur is restored to its original file for hearing and disposal in accordance with law.

It is directed that the civil suit shall be decided within a period of six months from the date of receipt of a copy of this order.

Parties are directed to appear before the trial Court on 10th March, 2014. No further notice either to the plaintiffs or to the defendant would be necessary. The trial Court shall proceed further with the matter from the stage where it was dismissed in default i.e. on 24.04.1991. No order as to costs.