Bombay High Court
Vishwas V. Bhagwat vs Girish K. Vora And Anr. on 20 September, 1988
Equivalent citations: 1989(1)BOMCR87
JUDGMENT H. Suresh, J.
1. One Smt. Tehmina N. Bohariwalla had filed a suit being S.C. Suit No. 5833 of 1975 in the Bombay City Civil Court, as against the present petitioner and another for possession of a piece of land stated to be encroached upon by the defendants. During the pendency of the suit, the said plaintiff sold her right, title and interest in the property, of which the suit premises is a part, to respondent No. 1 under a registered deed of conveyance dated October 21, 1976. Respondent No. 1, however, did not make any application to the Court to be joined as party plaintiff. The said Tehmina (plaintiff) died on August 22, 1980. Some time in December 1981, respondent No. 1 took out a Chamber Summons for setting aside the abatement of the suit and for bringing himself on record in place of the deceased-plaintiff as a successor entitled in the place of heirs and legal represntatives of the deceased plaintiff. He also sought for condonation of delay in preferring the said application. In support of the Chamber Summons, he had not only filed his affidavit, but, he also relied upoon the affidavit of Navroji Nasserwanji Bohariwalla, the husband of the deceased-plaintiff. The learned Judge granted this Chamber Summons and set aside the abatement of the suit and further allowed the applicant to proceed with the suit. It is against this order that defendant No. 1 filed the present appeal.
2. In support of the Chamber Summons, respondent No. 1 stated that the suit was pending in the Bombay City Civil Court and it appeared on board on December 1, 1976, and thereafter it did not appear on any board. In the ordinary course it was not likely to reach for hearing in that Court when he made the said application. He has stated in his affidavit in support of his Chamber Summons that he came to know some time in November 1981 through the husband of the deceased-plaintiff that the plaintiff had died on August 22, 1980. It appears that her husband, the said Navroji Nasserwanji could not inform respondent No. 1 of the deate of the deceased-plaintiff because of the great shock he suffered and he himself being an aged person of more than 80 years. The said Navroji Nasserwanji in his affidavit has stated that he is an old man of about 80 years and that he has already had three heart attacks and was completely broken down and as both of his daughters being married and there being no one to look after him in his old age, he broke down in health. He also met with an accident after the death of his wife and was admitted to hospital for more than a month. He was again required to be admitted in the hospital and as a result of all this he completely forgot about the matter and could not inform respondent No. 1. Some time in November 1981 when the Secretary of defendant No. 2 met respondent No.1, respondent No. 1 came to know that the present petitioner was finalising the conveyance between himself and defendant No. 2 and that is how respondent No. 1 enquired about the papers and it is in those circumstances he met respondent No. 1 on or about November 19, 1981 and informed him of the death of his wife.
3. It was contended before the learned Judge that the application was not maintainable under Order 22, Rule 10 of the Code of Civil Procedure inasmuch as the suit had already been abated and that respondent No. 1 as a transferee of the property could not have made any application when the suit itself was not pending. To this, it was pointed out by respondent No. 1 that the application would be maintainable under section 146 of the Code of Civil Procedure and in support of this contention, respondent No. 1 cited the case of Saila Bala v. Nirmala Sundari, . The learned Judge relied on the said Supreme Court case and allowed the Chamber Summons. He also held on the question of condonation of delay that the appplicant had made out a case of sufficient cause for condoning the delay and, therefore, for making the said application.
4. Mr. Divekar appearing for the petitioner submitted that section 146 of the Code of Civil Procedure cannot have any application inasmuch as section 146 would apply only in cases where their is no provision for making such an application under the Code of Civil Procedure. He submitted that Order 22, Rule 10 provided for a transferee making an application for the purpose of continuing the suit as against any person and, therefore, it cannot be said that respondent No. 1 could have relied upon the provisions of section 146 of the Code of Civil Procedure. He then submitted that if one reads Order 22, Rule 10, it becomes clear that the application as contemplated under Order 22, Rule 10 Sub-rule (1) of the Code of Civil Procedure can be made "during the pendency of the suit". He submitted that the suit has abated here and if that is so, no such application is permissible under Order 22, Rule 10 of the Code of Civil Procedure. He also submitted that even though the husband of the deceased-plaintiff has made an affidavit in support of respondent No.1's application, for reasons best known to him, he did not choose to make an application for setting aside the abatement and for restoring the suit.
5. It appears that one other heir and legal representative of the deceased plaintiff, a daughter, has also made an affidavit at the time this appeal was admitted as directed by the learned Judge. She too has no objection for respondent No. 1 being brought on record as party-plaintiff for the purpose of conducing the suit.
6. If Mr. Divekar's arguments are taken to its logical end, it would only mean this; Instead of respondent No. 1 making this application, in his place the heirs and legal representatives of the deceased-plaintiff would have to make such an application and if they make out a case of sufficient cause for setting aside the abatement, the abatement would be set aside and the suit would be resorted to file and once the suit is restored to file, then the present respondent No. 1 can make an application under Order 22, Rule 10 of the Code of Civil Procedure and with the leave of the Court he can continue the suit. To my mind, this is nothing but a procedural wrangle having no bearing on the substantive rights of the parties at all. It is well settled that the rules of procedure are meant to secure the ends of justice and not to override them.
7. The Supreme Court in the case of Saila Bala v. Nirmala Sundari, has clearly analysed the scope of section 146 of the Code of Civil Procedure. The relevant portion in the said report is as follows:-
"In our opinion, the application filed by the appellant falls within section 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section. Section 146 provides that save as otherwise provided by the Code. any proceeding which can be taken by a person may also be taken by any person claiming under him."
Then, after referring to a Madras Case and the earlier Supreme Court judgment, it is observed as follows :-
"It would follow from the above authorities that whoever is entitled to be but has not been brought on record under Order 22, Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could bave filed such an appeal, there being no prohibition against it in the Code."
On the construction of section 146 of the Code of Civil Procedure, the Supreme Court observed as follows :-
"We are not disposed to construe section 146 narrowly in the manner contended for by Counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vasted by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense."
8. Mr. Vora, respondent No.1, has cited before me certain other cases. He particularly relied on a Calcutta case of Anil Chandra v. Gopinath, . This case in terms explains the meaning of section 146 and it says.....
"What section 146 of the Code means is that an application or proceeding of a like nature can be taken by the transferee as could have been taken by the transferor, not that he should make the identical application."
In other words, if it could be said that the heirs of the transferrer could have made this application for setting aside the abatement, such an application could as well have been made by the transferee himself. He then cited a Division Bench judgment of Calcutta High Court in the case of Sagora Bibi v. S.K. Manik, , to say that even a transferee of a transferee is also entitled to be brought on record under Order 22, Rule 10 read with section 146 of the Code of Civil Procedure.
9. In the case of C. Kesavan v. Gouri Amma, , the question was one of execution of a decree and it was held that even though the application could not have been made by a transferee under Order 21, Rule 16, the transferee was entitled to execute a decree under section 146 of the Code of Civil Procedure as a person claiming under the decree holder and entitled to all the benefits under the decree. It was further observed that even though the transferee did not get himself impleaded in the suit, the decree passed in the suit enured to his benefit only, the transferrer having continued the suit only as a benamidar for the transferee, and in such circumstances the transferee can invoke the aid of section 146 and file an application for execution of the decree.
10. There is an Allahabad High Court case which is an extreme example as to how such an application can be permitted even beyond the period provided for setting aside the abatement. That is the case of Mithan Lal v. Maya Devi . The facts are somewhat indentical as in the present case. What had happened was that after the preliminary decree was passed, the decree holder made a gift of the rights secured by the decree to her daughters who did not make any application to continue the suit under Order 22, Rule 10. After some time the said donor died. No steps were taken by anybody to bring on record the legal representatives of the deceased. After about ten months or more, on the strength of the gift made by the deceased in favour of the daughters, one of them, viz. one Maya Devi made an application to the execution Court for substitution as legal representative of the deceased plaintiff decree-holder. This was contested and it was pointed out that no such application was maintainable under Order 22, Rule 10 of the Code of Civil Procedure. It was also pointed out that the application was barred by limitation. In that context, the Division Bench of Allahabad High Court construed the scheme of Order 22 and held that when it comes to Order 22, Rule 10 of the Code of Civil Procedure an application can be made by an assignee and in such an event the application can be made without bothering about setting aside the abatement as such. It was further observed that in such a case the application of this type could be made within three years from the date of the death of the deceased. In other words, what was sought to be established in this case is that the question of abatement would apply in so far as it related to heirs and legal representatives of the deceased plaintiff. But, as far as the assignee in concerned, there is no question of abatement inasmuch as the assignee gets as independent right and an application can be made under Order 22, Rule 10 of the Code of Civil Procedure even though the suit has abated as such.
11. It is interesting to note that the Supreme Court in the case of Ghafoor Ahmad Khan v. Bashir Ahmad Khan, though in a cryptic judgment, made the following observations:-
"This is not a case where on the death of the sole respondent his heirs are sought to be brought on record. During the lifetime of the sole respondent there was a transfer of the property (subject matter of appeal) by way of a gift to his wife. In other words, it is a case of devolution of interest and the case falls under Order XXIII, Rule 10, of the C.P.C. and there will be no question of abatement."
12. As against this Mr. Divekar relied upon a Full Bench judgment of Kerala High Court in the case of Goutami Devi v. Madhavan Sivarajan, which has taken an extreme view, otherwise. The relevant passage is as follows:-
"It seems to us to be plain from the scheme of Order XXII that an assignee can make an application for leave to continue the suit so long as there is a suit, so far it concerns the assignee, on the file of the Court. In a suit which is not subsisting there is no scope for seeking continuance. It is only logical that in a case where the suit has abated the assignee cannot thereafter seek to be added as a party to the action."
The Full Bench then dealt with the scheme of Order 21, Rules 2,3,4,7,8 and 10 and observed as follows :-
"There would be no scope for continuance where by reason of the operation of Rule 3 or Rule 4 as the case may be, there is abatement and consequently termination of the proceedings. In such a situation there is no scope for the assignee to make application under Order XXII, Rule 10, Civil P.C. In other words it means that no motion will succeed under Rule 10 when once there is abatement of the suit as against the party as whose assignee motion is made under Order XXII, Rule 10."
In support, the Full Bench referred to the case of Baijnath v. Mt. Tunkowati, (F.B.) and relied on the following passage :
"It is, however, noteworthy, that if the matter falls under Rules 3 and 4, application of Rule 10 is ousted and resort cannot be had to it to circumvent the mandatory provisions of Rr.3 and 4."
The Full Bench also took note of the decision of the High Court of Calcutta in Kedarnath Kanoria v. Khaitan Sons and Co., wherein we find the following observations:
"(25) It is true that the death of the assignor plaintiff simpliciter does not take away the right of the assignee to apply under Order XXII, Rule 10 of the Code of Civil Procedure. By Order XXII, Rule1 the death of the plaintiff of itself does not cause the suit to abate. Before the suit has abated the assignee may apply for and obtain leave to continue the suit. He may also, if he chooses, apply for substituion of the legal representative of the deceased plaintiff. In a proper case the order for leave to continue the suit may be dated nunc proc tunc as of the date when the application was made. If necessary, the application for leave to continue the suit may be treate as being in substance a composite appliation for substituion of the legal representatives of the deceased plaintiff and thereafter of the application. On obtaining the necessary leave the assignee becomes the new plaintiff and the suit cannot thereafter abate on account of the death of the original plaintiff.
(26) But the assignee can obtain leave only to continue a suit. If the suit has already abated, there is no suit which may be continued. The abatement terminates the suit and disposes of the plaintiff's calim as if the suit has been dismissed without a hearing. Leave to continue a suit cannot be given after the suit has terminated. It cannot be given if the suit has already been decreed or dismissed for default of appearance of the plaintiff. Similarly, leave cannot be given if the suit has already abated. The suit abates automatically in the absence of any application under Order XXII, Rule 3 within ninety days and a further order declaring that the suit has abated is not necessary. The assignee is bound by the abatement and by proceedings had in the suit before his intervention."
The Full Bench then distinguished the decision of the Madras High Court in Ellappan v. Sitaramiah, , so also it did not agree with the Allahabad case of Mithan Lal v. Maya Devi .
13. However, in this judgment there is no reference to section 146 of the Code of Civil Procedure at all. Therefore, on abatement of the suit, if the heirs and legal representatives could have made an application and if instead of heirs and legal representatives to make such an application, the transferee of the interest of the deceased were to make an application, is it not possible to consider such an application as an application under section 146 of the Code of Civil Procedure to set aside the abatment and continue the suit? This aspect of the matter has not been considered by the Full Bench at all.
14. I may also observe that in the present case during the life time of the deceased, the plaintiff, had transferred her interest in the property. Therefore, one can reasonably presume that on her death the heirs and legal representatives of the deceased-plaintiff would not be normally interested in prosecuting the suit any further. In such a case, is it not possible for a transferee of the interest of the property in suit, to come forward and make an application for being substituted in the place of the deceased-plaintiff. Since, on the death of the plaintiff, the suit itself does not come to an end, such an application would be certainly within he scope of Order 22, Rule 10 of he Code of Civil Procedure. In other words, the test is not whether the suit has abated or not. The test is whether the right to sue survives or not, and whether the suit can be prosecuted any further. If the suit has abated, and the heirs and legal representatives can make an application to set aside the abatement, such an application can as well be made by a transferee of the interest of the property in suit. This exactly where section 146 of the Code of Civil Procedure comes into operation. If such an application is not permitted it would cause considerable prejudice to the transferee of such an interest and he will be without any remedy whatsoever. Mr. Divekar submitted that if necessary the transferee could institute a separate proceeding as against the defendants. In law, it is not permissible. If the suit has abated, the heirs and legal representatives are not bound to make an application, as they have no interest in the property, and the transfer having taken place during the pendency of the suit, such a transferee will be without any remedy as against the defendants and that would be total injustice to him. That is why section 146 enables such a transferee to make an application.
15. At the same time, I am not prepared to go the edtent of Allahabad High Court which permits the application of this type to be made within a period of three years from the date of the death of the deceased. I think, that is carrying the matter too far. He gets a right to make an application under section 146 of the Code of Civil Procedure, instead of the heirs and legal representatives making such an application, which can be sustained only on the ground of his having made out a case of sufficient cause.
16. Therefore, the outcome of all these authorities together with my own reading of the law, as has been assisted by the Counsel on either side, leads me to the following propositions :
(a) Application under section 146 of the Code of Civil Procedure, as also an application under Order 22, Rule 10 of the Code of Civil Procedure being procedural must be so construed as to promote justice and not to obstruct the cause of substantive justice.
(b) If during the pendency of the suit an assignee wants to join the suit, his application would fall under Order 22, Rule 10 sub rule (1) of the Code of Civil Procedure and on leave being granted he would be able to continue the suit. In this case there is no question of any application of section 146 of the Code of Civil Procedure.
(c) If, on the death of plaintiff, the right to sue survives, but before the suit abates, the assignee himself can make an application to be substituted under Order 22, Rule 10 of the Code of Civil Procedure in the place of the deceased plaintiff. If the application is granted, there is no question of any heir and legal representative being brought on record under Order 22, rules 2 or 3 C.P. Code.
(d) But if the suit has abated, it is open to such an assignee to make an application to have the abatement set aside and in that even his application would fall under section 146 of the Code of Civil Procedure read with Order 22, Rule 10 of the Code of Civil Procedure. In that case, he is required to make out a case of sufficient cause for condoning the delay in making the application.
17. In my view, in the present case, respondent No. 1 has made out a case of sufficient cause to condone the delay. In fact, Mr. Divekar, in all fairness did not advance argument in that behalf. The learned Judge is, therefore, right in allowing the Chamber Summons and making it absolute.
In the result, I pass the following order :
Appeal is dismissed and stay is vacated.
However, in the circumstance of the case, there will be no order as to costs.
I, however, direct the learned Judge to dispose of the suit as expeditiously as possible.