Shrilal and Another vs Purushottam and Others

S.S. Jha, J.

This revision is filed against the order dated 17.8.1998 passed in Civil Suit No. 156-A/97 by 1st Civil Judge Class-11, Guna.

Brief facts of the case are that a civil suit was filed by one Mangilal and Bhamarlal. An application for substitution was filed on 13.1.1997 by the legal representatives of the deceased Plaintiff. The legal representatives submitted that they had no knowledge about the pendency of the litigation and when they received information on 4.12.1996 about the spot inspection by the Commissioner, then they acquired knowledge of the litigation.

The application was opposed by the Defendants on the ground that the date of death of Plaintiff Mangilal is not mentioned in the application and the application is not filed within time, therefore, the suit has abated.

The trial Court has held that the limitation for bringing the legal representatives on record shall start from the date the legal representatives acquired knowledge of the death of they have acquired knowledge of the proceedings.

Approach of the trail Court is contrary to law. Under Article 120 of the Limitation Act, period of limitation commences from the date of death of Plaintiff, the Article does not provide for date of knowledge. There is no provision under this Article that application should be filed from the date of knowledge. The trial Court has not cared to consider the provisions of Article 120 of the Limitation Act.

In case application for substitution is not filed within the period of limitation, then application for setting aside abatement should be filed within sixty days. If the application for setting aside abatement and substitution is not filed, then the party is free to move application u/s 5 of the Limitation Act for condoning delay in filing application.

The trial Court while deciding the application has not considered that in the application the date of death of Plaintiff is not mentioned. From the records it is established that the civil suit was filed by Mangilal and Bhamarlal in the year 1986. The suit was dismissed by the trial Court on 11/5/92, An appeal was filed by Mangilal and Bhamarlal. The appeal was decided on 26.4.1996 and the case was remanded back to the trial Court for demarcation of the land. After the order dated 26.4.1996 of the appellate Court, Counsel continued to represent the original Plaintiffs, which is apparent from the order-sheets. After the remand, Plaintiffs were represented through counsel right from 17.5.1996 onwards. Commissioner submitted his report and the Commissioner''s fee was also deposited by the Plaintiffs vide order dated 8.8.1996. However, writ of commission could not be executed till 21.11.1996. Then on 9.12.1996 report of demarcation was received. Objections were invited to the Commissioner''s report on 19.12.1996. Thereafter the case was being adjourned from time to time and the application for substitution was filed on 13.1.1997. The application was opposed. It was contended that the suit has abated as the Plaintiff had died long back and in the absence of application for setting aside abatement and condonation of delay, the application for substitution deserves to be dismissed.

From perusal of the record, it is found that only application under Order 22 Rule 3 CPC for substitution was filed by the legal representatives of the Plaintiffs without mentioning the date of death. The application was also not supported by and affidavit. From perusal of the records, it also transpires that after the remand of the case, applications were filed on behalf of the dead Plaintiffs before the trial Court. Date of death is not mentioned in the application, which was mandatory on the part of legal representatives.

Petitioner''s witness D.W.1 Shrilal has categorically stated that Plaintiff Mangilal died on 8.1.1996 and Bhamarlal died on 22.2,1991. Petitioners'' evidence was recorded under Order 22 Rule 3 CPC and Madanlal deposed that he acquired knowledge about the pending suit on 3.1.1997 when Naib Tehsildar went for spot inspection. This witness deposed that Plaintiff Bhamarlal died on 22.2.1995 and Plaintiff Mangilal died on 8.1.1996. P.W.2 Narayan Lal deposed that Mangilal died on 8.1.1996 and Bhamarlal died on 22.2.1995. Even otherwise question of knowledge of the suit is immaterial as affidavit in support of the application for temporary injunction was filed by Narayanlal S/o Plaintiff Mangilal.

From these depositions, it is clear that death had occurred beyond 90 days from the date of application for substitution, In the absence of moving an application for setting aside abatement and condonation of delay, the trial Court erred in holding that application is within time from the date of knowledge. It was the duty of the party to mention the correct facts and date of death in the application. The trial Court has not recorded any finding pertaining to date of death

11 From the records, it is apparent that one of the Plaintiffs died in the year 1995. Thus the appellate order passed on 26.4.1996 was against a dead person. As such, in the absence of substitution of legal representatives in appeal, the order passed in appeal itself is a nullity.

At any rate, the order of the trial Court directing substitution of legal representatives of the Plaintiffs without application for setting aside abatement and condonation of delay is bad in law. It is held that the suit has abated on expiry of ninety days from the date of death of Plaintiff No. 1, as joint relief was claimed by the Plaintiffs. The suit has abated and could not have been continued. Appellate order itself is void as it was decided in favour of a dead person.

In the result, the revision succeeds and is allowed. The impugned order passed by the trial court is set aside and the application for substitution of legal representatives filed by the Respondents is rejected. It is held that the suit has abated.