Karnataka High Court
Noel F.C. Pinto vs Mrs. Magdelien Mascarenhas (Deceased) ... on 21 September, 2004
Equivalent citations: 2004(7)KARLJ585, 2005 A I H C 306, (2005) 107 FACLR 363, (2005) 4 KANT LJ 317, (2005) 4 LAB LN 168, (2005) 3 TAC 195, (2005) 3 KCCR 192, (2005) 3 ACC 98, (2005) 3 CURLR 16, 2005 LABLR 661, (2006) 4 ACJ 2380, 2005 AIR - KANT. H. C. R. 1, (2005) 1 KCCR 317
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
1. The properties in question admittedly belonged to one William Pinto. The 1st respondent, Magdelien Mascarenhas had made an application in Form 7 for grant of occupancy rights in respect of the said lands. The Land Tribunal, Mangalore, by its order dated 6-10-1981, granted occupancy rights in respect of the said lands in favour of the 1st respondent. Feeling aggrieved by the said order, the wife and children of the said William Pinto had filed W.P. No. 31030 of 1982. The 1st respondent had died when the matter was pending before this Court. During the pendency of the said writ petition, since the Land Reforms Appellate Authorities were constituted, the matter was transferred to the Land Reforms Appellate Authority, Mangalore, by the order dated 23-7-1986 and registered as Appeal No. LRAT 718 of 1986. The Land Reforms Appellate Authority, by its order dated 11-9-1987 held that since steps are not taken to bring the L.Rs of the deceased 1st respondent on record, the appeal stands dismissed as abated. The relevant portion of the order reads as follows.--
"xxx 11-9-1987 A-KGB/BSA Respondent 1 steps - not taken. The appeal is dismissed as abated.
Sd/- xx 11/9 J.M. Sd/- xx 11/9 R.M.".
2. Thereafter, four applications were filed by the landlord, numbered as I.A. No. I of 1989 under Order 22, Rule 9 of the CPC, I.A. No. II of 1989 under Section 5 of the Limitation Act, 1963, I.A. No. III of 1989 under Order 22, Rule 4 of the CPC, I.A. No. IV of 1989 under Section 5 of the Limitation Act and a Miscellaneous Case No. 22 of 1989 under Rule 10 of the Karnataka Land Reforms (Appellate Authority) Rules, 1986 read with Section 151 of the CPC. All these applications were filed by the landlords before the Land Reforms Appellate Authority on 17-8-1989. The said I.A.'s were filed for setting aside the abatement, for condonation of delay and for bringing the L.Rs of deceased 1st respondent on record and for seeking condonation of delay in filing miscellaneous petition respectively.
3. After abolition of the Land Reforms Appellate Authorities, the petitioners filed a civil petition before this Court, seeking retransfer of the matter to this Court in C.P. No. 7764 of 1991, which later converted into the present writ petition.
4. I have heard the learned Counsels for the parties.
5. It is argued by the learned Counsel for the petitioner that the appeal was dismissed as abated, since the L.Rs of deceased 1st respondent were not brought on record. Since the petition is dismissed as abated, necessary applications under Order 22, Rule 9 of the CPC, as also Section 5 of the Limitation Act and an application under Order 22, Rule 4 have been filed. It is argued that the question of dismissal of an appeal does not arise if the L.Rs of deceased 1st respondent were not brought on record within the statutory period. The appeal gets abated by operation of law.
6. Sri O. Shivarama Bhat, learned Counsel for the L.Rs of deceased 1st respondent submits that the 1st respondent had died during the pendency of the W.P. No. 31030 of 1982 before this Court. By the order dated 23-7-1986, the matter was transferred to the Land Reforms Appellate Authority, Mangalore. Since the L.Rs of deceased 1st respondent were not brought on record, the Tribunal by its order dated 11-9-1987 had dismissed the appeal as abated. When the civil petition was filed under Section 17 of the Karnataka Act No. 18 of 1990, the appeal was not pending. Therefore, the Civil Petition is not maintainable in law. Consequently, the present writ petition is also not maintainable. He has relied on the decision of the Division Bench of this Court in the case of Smt. Lalithamma and Ors. v. State of Karnataka and Ors., W.P. No. 19863 of 1991, DD: 3-2-1994 (DB), in the case of Govinda v. State of Karnataka and Ors., W.P. No. 34430 of 1992, DD: 4-3-1994, for the proposition that only in cases where an appeal is pending before the Appellate Authority, recourse can be made to Section 17 of the Karnataka Act No. 18 of 1990. He has further relied on the decision of the Supreme Court in the case of Mst. Bibi Rahmani Khatoon and Ors. v. Harkoo Gope and Ors., , for the proposition that if a party to the proceedings either in Trial Court or in appeal or revision dies and the right to sue survives or a claim has to be answered, the L.Rs of the deceased party would have to be substituted and failure to do so would result in the abatement of the proceedings. He concluded by saying that since the appeal was dismissed as abated, the civil petition filed by the petitioner is not maintainable.
7. In reply, learned Counsel for the petitioner submits that W.P. No. 31030 of 1982 was transferred by this Court to the Appellate Authority The Appellate Authority had dismissed the appeal as abated by the order dated 11-9-1987. Necessary applications were filed for setting aside the abatement for condonation of delay and for bringing the L.Rs on record. It is further argued that the proceedings abate by operation of law, if the L.Rs are not brought on record. It does not amount to dismissal of proceedings. He further submits that abatement does not tantamount to dismissal. The abatement of a proceeding will not amount to final disposal of the case. When an application is made to bring the necessary parties before the Court, the Court proceeds with the hearing of the said applications. It cannot be said that the appeal was not pending before the Appellate Authority when the Amendment Act came into force. He has relied on the decision of the Allahabad High Court in the case of Badri Nath and Anr. v. Raja Ram and Ors., AIR 1932 All. 698 (DB) : 1932 ALJ 883 (DB).
8. It is not in dispute that the 1st respondent died during the pendency of the writ petition before this Court. Her L.Rs were admittedly not brought on record during the pendency of the writ petition. It is also not in dispute that by virtue of amendment to Karnataka Land Reforms Act, 1961, the proceedings pending before this Court were transferred. The order in W.P. Nos. 31025 to 31031 of 1982, dated 22-7-1986 is as follows.--
"5. In the result, I make the following order:
(i) The records of the writ petition except the order-sheet are transferred to the Appellate Authority of the district concerned with a direction to treat the petition as an appeal presented before it and to dispose of the same in accordance with law.
(ii) Parties are directed to appear before the Appellate Authority on 22-10-1986 without any fresh notice from the Appellate Authority".
9. It is true that to maintain a civil petition under Section 17 of the Act, an appeal should be pending before the Appellate Authority. The decision of the Division Bench of this Court in the cases of Smt. Lalithamma and Govinda, have clearly held that it is only where an appeal is pending before the Appellate Authority, recourse can be had to Section 17 of the Karnataka Act No. 18 of 1990. The said decisions are not applicable to the facts of this case because the Appellate Authority had dismissed the appeal as abated. The nature of the abatement is not a final disposal of the case. The word "abatement" literally means "lessening or shortening". When a Court is unable to proceed with the case pending before it for the reason that proper parties are not before it, the proceedings get abated. When an application is made to bring the necessary parties before the Court, the Court brings the proper parties before it and proceeds with the hearing. If on the abatement of the suit, the Court ceases to have jurisdiction, the Court cannot entertain an application for setting aside the abatement made long after three months period ordinarily allowed for setting aside the abatement.
10. Order 22, Rule 2 of the CPC provides for a procedure where one of several plaintiffs or defendants dies and right to sue survives. Order 22, Rule 3 of the CPC provides for a procedure in case of death of one of several plaintiffs or of sole plaintiff. Order 22, Rule 4 of the CPC provides for a procedure in case of death of one of several defendants or of sole defendant. Order 22, Rule 9 states the effect of abatement. Order 22, Rule 9(3) of the CPC, states that the provisions of Section 5 of the Indian Limitation Act, 1877, shall apply to the applications made under Rule 9(2) of Order 22. It is clear from the above provisions that, on the abatement of a suit, the Court has jurisdiction to entertain the application for setting aside the abatement made long after three months period ordinarily allowed for bringing the legal representatives on record. It is also clear that the Court does not cease to have jurisdiction in the matter in which the abatement takes place.
11. In the instant case, the petitioner had made necessary application for setting aside the abatement, for condonation of delay in bringing the L.Rs of the deceased 1st respondent on record. The Appellate Authority had jurisdiction to consider the said applications, if it was not abolished.
12. This Court by its order dated 9-10-1997 has allowed the civil petition. It was held that any I.As. pending for consideration in the appeal shall be treated as a part of writ proceedings to be registered. Thus, I.As. filed by the petitioner in the appeal were treated as the applications filed by him in this writ petition. The said I.As. were allowed on 28-3-2002 and the L.Rs of the deceased respondent 1 were brought on record.
13. Learned Counsel for the petitioner has placed reliance on a decision of the Allahabad High Court in the case of Badri Nath, wherein it is held that on abatement, the Court does not cease to have jurisdiction in the matter. The relevant portion is as follows.--
"We are of opinion that this argument is not at all sound. The nature of an abatement is not a final disposal of the case either by dismissal or by decreeing it. The word "abatement" literally means "lessening or shortening" and is now very little used except in legal phraseology. When a Court is unable to proceed with a case pending before it for the reason that the proper parties are not before it, it is said that the case has abated. When an application is made to bring the necessary parties before the Court, the Court brings the proper parties before it and proceeds with the hearing. An application for setting aside an abatement may be made long after the case has actually abated. A cause may be shown by the party asking for the setting aside of the abatement as to why the application was not made earlier; Section 5, Limitation Act, applies to such an application. If on the abatement of a suit, the Court ceases to have jurisdiction, how is it possible for it to entertain an application for the setting aside of the abatement made long after the three months' period ordinarily allowed for setting aside the abatement has elapsed? We are therefore of opinion that the Court does not cease to have jurisdiction in the matter in which an abatement taken place".
14. The petitioner need not have filed miscellaneous application for recalling of the order dated 11-9-1987. I am of the view that on abatement, the Court is unable to proceed with the case pending before it. An abatement is not dismissal of the proceedings. I am also of the view that the Civil Petition filed by the petitioner is maintainable.
15. Learned Counsel appearing for the L.Rs of deceased 1st respondent placed reliance on the decision of the Hon'ble Supreme Court in the case of Bibi Rahmani Khatoon. It is true that if a party to the suit dies, abatement takes place and the suit abates. But, if an application is filed to set aside the abatement, it cannot be said that the Court has no jurisdiction to entertain the said application. The above decision was rendered with regard to Section 4 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. The said decision has no application to the facts of this case.
16. Perusal of the order of the Land Tribunal dated 6-10-1981 makes it clear that it is not a speaking order. It is also evident that the Land Tribunal has not followed the procedure prescribed in Rule 17 of the K.L.R. Rules. In my opinion, the matter requires reconsideration by the Land Tribunal.
17. In the result, writ petition succeeds and it is accordingly allowed. The Order of the Land Tribunal impugned in the writ petition is quashed and the matter is remitted back to the Land Tribunal, for fresh disposal in accordance with law, after due notice to all the parties concerned. No costs.