Gauhati High Court
Md. Nazrul Haque & 9 Ors vs Musstt. Nekjan Bibi on 27 February, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP No. 464 of 2015
MD. NAZRUL HAQUE & 9 ORS. .....Petitioners
Vs.
MUSSTT. NEKJAN BIBI .....Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. B. Ullah, Mr. A. Rahman Advocates for the Respondent : Mr. B. Hussain, Mr. P. B. Mazumder, : Ms. R. Borgohain, Date of hearing : 27.02.2017 Date of Judgment and Order : 27.02.2017 JUDGMENT AND ORDER (Oral) Heard Mr. B. Ullah, learned counsel for the petitioners and Mr. B. Hussain, learned counsel for the respondent.
2) By filing the present application under section 115 read with section 151 of the Code of Civil as well as under Article 227 of the Constitution of India, the petitioners have assailed the order dated 29.07.2015 passed by the learned Civil Judge, Kamrup (Rural), Amingaon in TS 268/14. The sole had defendant had expired during CRP No. 464 of 2015 Page 1 of 8 the pendency of the suit and by the said order impugned herein, the substitution petition filed by the respondent- plaintiff was allowed.
3) Earlier, the suit was proceeding before the Court of Civil Judge No.2, Guwahati, where it was registered as TS No. 131/06. In course of time, Civil Courts were established in the newly created District of Kamrup (Rural) at Amingaon and the suit was re-registered as T.S. No. 268/14. In the said suit, the PW-1 was examined and the evidence was closed. On 25.09.2007, the predecessor-in- interest of the present petitioners, who was the sole defendant in the suit had also filed his Evidence-On- Affidavit as well as Evidence-on- affidavit by his other witnesses. On the same day, the respondent's side had filed a petition praying for review of the previous order dated 21.08.2007 passed in the suit with a prayer to allow the predecessor-in-interest of the respondent herein to examine further two witnesses. Together with the said petition, two evidence-on- affidavit by PW-2 and PW-3 were also filed. The said review petition dated 25.09.2007 was allowed by order dated 05.04.2008 passed by the learned Civil Judge No.2, Guwahati. The predecessor-in-interest of the present petitioners had preferred an appeal against the said order dated 05.04.2008, which was also dismissed by the Court of learned District Judge, Guwahati by order dated 05.12.2008 passed in misc. Appeal No. 7/2008. Thereafter the predecessor-in- interest of the present petitioners challenged the said order dated 05.12.2008 before this Court by filing CRP No. 53/2009.
4) During the pendency of the said CRP No. 53/2009, by an order dated 20.03.2009, the further proceedings of TS 131/06 was stayed by order dated 20.03.2009. However, as during the pendency of the said revision, the predecessor-in-interest of the petitioners, who was the sole petitioner therein had died on 21.11.2009. Accordingly, the present petitioners along with one Mrs. Sabila Khatun had filed a substitution application before this Court and accordingly, the name of the petitioners along with the said Mrs. Sabila Khatun was substituted by virtue of order dated 17.02.2010 passed by this Court in M.C. No. 340/10. The substituted petitioner No.1 in CRP No. 53/2009 also CRP No. 464 of 2015 Page 2 of 8 died on 07.02.2010 and accordingly, her name was stuck off by order dated 30.03.2010 passed by this court in MC 633/10.
5) Later on, the said CRP No. 53/09 came to be dismissed by this court by order dated 30.10.2014, with a direction to the learned trial court to dispose the suit preferably within a period of 6 months from the date of receipt of the records. The parties were directed to appear before the learned trial court on 20.11.2014.
6) After the proceedings of T.S. No. 131/06 was re-started, on 28.11.2014, the learned counsel for the deceased sole defendant i.e. the predecessor-in-interest of the petitioners filed a petition before the Court of Civil Judge No.2, Guwahati under the provisions of Order XXII Rule 10-A of the Code of Civil Procedure, informing the learned trial court about death of sole defendant. Be it stated that the present petitioners did not appear in the suit. Moreover, in the present revision application, the date of verification is mentioned as 28.11.2015, which ought to be 28.11.2014. In the meanwhile, the case records were transferred to the Court of Civil Judge, Amingaon and TS No. 131/06 was renumbered as TS No. 284/14.
7). On coming to know about the same, on 07.01.2015, the respondent- plaintiff had filed a substitution petition under the provisions of Order XXII Rule 4 of the Civil Procedure Code, which was numbered as Petition No. 24/15. Thereafter, on 23.02.2015, the respondent filed another petition under the provisions of Order XXII Rule 9 of the Code of Civil Procedure for setting aside abatement, which was numbered as Petiton No. 317/15. The learned court of Civil Judge, Amingaon, by order dated 29.07.2015 disposed off the herein before mentioned petition filed under Order XXII Rule 10-A of Civil Procedure Code, petition No. 24/15 under Order XXII Rule 4 of Civil Procedure Code and petition No. 315/15 under Order XXII Rule 9 of Civil Procedure Code. In the said order dated 29.07.2015, the learned trial court observed that the case record was with this Court from 14.05.2009 and it was received back by the trial court on 20.11.2014 and subsequently, the case record was received on transfer the court of learned Civil Judge, Amingaon on 15.12.2014. The present petitioners did not appear in CRP No. 464 of 2015 Page 3 of 8 the court although directed by this court to appear on 20.11.2014 and the respondent herein had filed the substitution petition on 07.01.2015 and the petition for setting aside abatement was filed on 23.02.2015. Therefore, upon calculating the time taken for the respondent in filing the substitution application from the time the proceeding was commenced and petition informing the death of sole defendant, the learned trial court arrived at a finding that there was no delay in filing of the petition No. 24/15. Accordingly, the petition for setting aside abatement and for substitution were allowed. A direction was also issued to the respondent herein to take steps to summon the legal representatives of the sole defendant. The said order is in challenge in the present revision.
8) In course of hearing on 03.02.2017, the learned counsel for the petitioner had argued that there was no bar for the respondent to file the substitution petition before the learned trial court after the sole defendant died on 07.03.2010 as the proceedings of the suit was not stayed. The learned counsel for the respondent had countered the said submissions by producing the certified copy of the order dated 20.03.2007 as well as order dated 27.04.2007 passed by this Court in CRP No. 53/2007, by which status quo was granted in respect of the said TS No. 131/06, pending before the Civil Judge No.2, Guwahati. However, as the learned counsel for the petitioner had denied passing of such an order, this Court had deferred the hearing on 03.02.2017, requiring the record of CRP No. 53/2009 (disposed off) to be tagged along with the present revision. Today, when the hearing had commenced, the learned counsel for the petitioner turned a volte face by conceding that the proceedings of the suit was stayed by order dated 20.03.2007, which resumed after lower court records were returned on 20.11.2014.
9) Amongst others, the four major grounds of attack by the learned counsel for the petitioners are (i) the sole defendant having died on 21.11.2009, the substitution petition filed on 07.01.2015 and the petition for setting aside abatement filed on 23.02.2015 were both way beyond the period of limitation as prescribed under Article 120 and 121 of the Schedule appended to the Limitation Act, 1963, (ii) the substitution of CRP No. 464 of 2015 Page 4 of 8 petitioners in CRP No. 53/2009 was not within the mandate of Order XXII Rule 11 of Civil Procedure Code, for which the order for substitution passed in the proceedings of the said revision ought not to have been referred as a ground for setting aside abatement and for allowing substitution in the suit, (iii) in any case, the petitions for setting aside abatement and for substitution having been filed beyond the time prescribed under Article 120 and Article 121 as stated above, the same could not have been entertained without an application under section 5 of the Limitation Act, 1963, (iv) the learned civil court ought not to have allowed substitution without issuing any prior notice to the petitioners.
10) The learned counsel for the respondent has vehemently argued in support of the said impugned order. His submissions can be summarized to the effect that as the learned counsel for the deceased defendant had discharged his legal duty under Order XXII Rule 10-A of the Code of Civil Procedure only on 28.11.2014, the application for setting aside abatement and the petition for substitution were well within time.
11) On hearing the learned counsel for the parties and upon the perusal of the materials on record, this court has observed that although the learned counsel for the deceased sole defendant had informed the court about the death of the said sole defendant on 28.11.2014, yet he appears to have participated in the said suit and as per the order dated 29.07.2015, which is impugned in the present revision, it is seen that the said learned counsel had even participated in the hearing on substitution and his submissions have been recorded. It may be restated herein that the present petitioners had chosen not to appear in the suit despite the directions contained in order dated 30.10.2014 passed by this court in CRP No. 53/2009. Therefore, the learned trial court had committed no infirmity in passing the order for substitution without issuing a prior notice of such application on the petitioners herein. The language of sub-Rule (1) of Rule 4 of Order XXII is clear to the effect that the court on the application made for substitution, the court shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. Thus, the issuance of notice/ summons CRP No. 464 of 2015 Page 5 of 8 to the present petitioners after such substitution was made is found to be in accordance with the law. This court also does not find any infirmity in the decision of the learned court wherein the application for setting aside abatement and substitution are found to be on time and in this regard, this court is also of the opinion that as the application for setting aside was allowed the same, in the singular facts of the present case in hand, would deem to have taken care of the deficiency, if there be any, for not presenting a separate application under section 5 of the Limitation Act, 1963 for condonation of delay. Notwithstanding the same, from the conduct of the petitioner in the present case in hand, it is apparent that the petitioners have not come to court with clean hands, which is seen from the following - (i) that despite the order by this court to the parties to appear in the suit on 20.11.2014, the petitioners did not comply with the said directions and instead, the learned counsel for the deceased sole defendant appeared in the suit to purportedly discharge his duty as prescribed under Order XXII Rule 10A CPC., (ii) despite the severance of the relationship between the learned counsel and the deceased defendant, the said learned counsel continued to appear in the trial court not only to keep a tab on the suit but to also participate in the hearing in the matter of substitution. The issue of substitution being barred by limitation was not raised as a ground for opposing the substitution. Moreover, there is no statement in the present revision that the present petitioners had received any notice for appearing before the learned trial court, yet the petitioners are aware of the passing of the impugned order. Therefore, under the singular facts of the case, it appears that the present revision petitioners were watching the proceedings of TS No. 268/14 from behind.
12) In is the opinion of this court, the time prescribed for limitation shall begin to run only in terms of the provisions of Article 120 and Article 121 of the Schedule appended to the Limitation Act if the death of the deceased party was communicated to the court on time. In the present case in hand, the learned counsel for the petitioner had initially projected on 03.02.2017 that the proceedings of the suit was never stayed, meaning thereby that there was no impediment for the respondents could have file substitution application immediately after the death of the sole defendant on 21.11.2009. However, on the perusal of the record of CRP No. 53/2009, it is crystal clear CRP No. 464 of 2015 Page 6 of 8 that the proceedings of suit was stayed from 20.03.2009 till 20.11.2014, during which the respondent herein suffered legal disability as envisaged under section 15 of the Limitation Act because in view of the stay and/or status quo ordered by this court in respect of the proceedings of the suit, the learned trial court could not have entertained the petition for substitution. The respondents are also found to be suffering from a legal disability to present the application for setting aside abatement and for substitution prior to 28.11.2015, when for the first time, the learned counsel for the deceased sole defendant informed the learned trial court about the death of the said sole defendant. This court is of the view that as an explanation is given in petition No. 24/15 dated 07.01.2015 and petition No. 317/15 dated 23.02.2015 about the legal disability in filing the substitution petition within time as the records of the suit was called for by this Court and the proceedings of the said suit was stayed till the records were returned back on 20.11.2014, there was no requirement for the respondent to file a separate application under section 5 of the Limitation Act, 1963 for condonation of delay and, as such. It is the opinion of this court that it is the mandate of the provisions of Order XXII Rule 10A of the Code of Civil Procedure that only after the learned counsel for the party comes to know about the death of the party to the suit he is required to inform about it to the court about it and only thereupon the court will inform the other party about such death of the other party. Therefore, the duty is cast on the learned counsel for the deceased party to the suit to inform the court about the death of such party. The impugned order will go to show that summons was ordered to be issued after substitution and this court finds no infirmity in the said procedure adopted by the learned trial court. Therefore, the four major points argued by the learned counsel for the petitioner is not found sustainable either on facts or in law.
13) This court finds that despite the order dated 30.10.2014, passed by this court directing the learned trial court to attempt to dispose of the suit preferably within a period of 6 months, the petitioners have been successful in negating the said order for about 21/2 years. The learned counsel for the petitioners had even disputed the correctness of the certified copy of the order dated 20.03.2009 passed by this court in CRP No. 53/2009 to give an impression as if a manufactured document has been CRP No. 464 of 2015 Page 7 of 8 produced by the respondent, which led this court to call for the records of the said revision, only to find out that a reckless statement was made at the bar by the same learned counsel who had appeared for the deceased sole defendant (i.e. predecessor-in- interest of the petitioners), at whose submissions the suit was stayed. Thus, the present revision is found to be without any merit and, as such, the revision is dismissed.
14) Under the circumstances as narrated above, this court is of the view that this is a fit and proper case for imposing an exemplary cost on the petitioners for causing delay in the disposal of the suit as well as the present revision, as such, the exemplary and realistic cost is quantified at Rs.10,000/- (Rupees Ten thousand only) towards fees for the learned counsel for the respondent and for causing delay in the disposal of the suit as well as the present revision by denying the passing of the order dated 20.03.2009, of staying of the proceedings of the suit. The said cost shall be deposited before the learned trial court by the petitioners herein within a period of 4 weeks from today for onward payment to the respondent- plaintiff, failing which the respondent herein would be at liberty to bring the same to the notice of the trial court for being incorporated in the decree.
15) The revision stands dismissed. 16) The parties shall appear before the learned Civil Judge, Amingaon on
18.03.2017 or on the immediate next working date for seeking further instructions of the said learned court. As observed by this Court in CRP No. 53/2009, the learned trial court shall make an attempt to dispose of the suit preferably within a period of 6 months from the date fixed for appearance by taking recourse to the provisions contained in Order XV-A of the Code of Civil Procedure.
JUDGE Mkumar CRP No. 464 of 2015 Page 8 of 8