Patna High Court
Devkinandan Lal vs Jogendra Prasad And Ors. on 2 April, 1979
Equivalent citations: AIR1980PAT71, AIR 1980 PATNA 71, 1979 BLJR 607, (1979) PAT LJR 459, 1979 BBCJ 551, (1979) BLJ 568
ORDER S.K. Jha, J.
1. This application is directed against the order dated 20th Dec. 1975 passed by the learned Additional District Judge, First Court, Bhagalpur in Miscellaneous Appeal No. 12 of 1975. By the impugned order the learned Additional District Judge has affirmed the order of the trial court by which the prayer of the petitioner to be substituted after setting aside abatement had been rejected on the concurrent finding that the petitioner had not been able to show sufficient cause for not filing an application within the time allowed by law.
2. The only relevant facts worth noticing for the decision of this case are these. Title Suit No. 35 of 1969 was instituted by one Narsingh Lal in the court of the Munsif, Bhagalpur. At the outset I may state that the aforesaid Narsing Lal was none else than the own uncle of the present petitioner. In tbe suit the relief claimed was for setting aside an ex parte decree for arrears of taxes regarding Holding No. 5, Circle No. 14, Ward No. 18 of Mohalla Mirjan Hat within the municipal limits of Bhagalpur Municipality. The decree had been obtained by the Bhagalpur Municipality. During the pendency of the suit, the petitioner claims to have purchased the holding in question under a registered sale deed dated 8th August, 1970 from the original plaintiff Narsingh Lal. It is the further case of the petitioner that he came to know about the institution of such a suit on 23rd August, 1971. In the meantime, according to the petitioner's own case, Narsingh Lal aforesaid died sometime in February, 1971, whereas according to the case of the contesting opposite parties, he had died on 3rd November, 1970. Be that as it may this difference in the date of death, according to the stand taken by the respective parties, makes no material difference in so far as the point which falls for consideration in this case is concerned. On 25th Aug. 1971, the petitioner filed an application for his substitution in the place of Narsingh Lal after setting aside abatement. That application was in the first instance rejected by the trial court. The petitioner thereafter, preferred Miscellaneous Appeal No. 73 of 1971 in the court of the learned District Judge. That appeal was allowed and the case was remanded to the trial court for disposal of the petitioner's application dated 25th Aug. 1971 on merits after going into evidence with regard to the date of knowledge and also for finding out as to whether sufficient cause had been shown for not filing the application for substitution in time. After remand, the trial court heard the substitution matter and by order dated 25th Feb. 1975 the petitioners' application for setting aside abatement was rejected. Against that order, the petitioner preferred an appeal, as already mentioned above, being Miscellaneous Appeal No. 12 of 1976, in which the impugned order dated 20th December 1975 was passed.
3. Both the courts below, on a consideration of the evidence adduced by the parties concerned, have categorically found that the petitioner's story about the date of his knowledge regarding the institution of the suit by Narsingh Lal aforesaid was not true. That being purely a question of fact could not have been, and was very fairly not gone into by the learned counsel for the petitioner.
4. In this application the only point that was raised by Mr. K. K. Sinha, learned counsel for the petitioner, was that in view of the provisions of Order 22, Rule 10 of the Civil P. C. the petitioner being an assignee of the interest of the original plaintiff, ought to have been permitted to continue the suit instituted by Narsingh Lal since there was no period of limitation for an application under Order 22, Rule 10 of the Civil P. C. There is no doubt that if it is a case which can be said to be covered by the provisions of Order 22, Rule 10 there will be no question of limitation nor would it require going into any evidence with regard to the sufficiency of the cause shown. But, in my view, the argument of Mr. Sinha proceeds upon an inherent fallacy. The provisions of Order 22, Rule 10 of the Civil P. C. can apply to the facts of a particular case only where any of the previous Rules is not applicable. The effect of any other rule prior to Rule 10 of Order 22 cannot be got rid of by a resort to this rule. It is also well settled that where there are two devolutions of interest, namely, one by death of a party covered by the provisions of Rules 3 and 4 of Order 22 and the other by transfer of his interest prior to his death, the transferee has a right to be impleaded under Order 22, Rule 10, and the mere death of the party concerned cannot take away this right. That is so, because there is no abatement under Order 22, Rule 10 But, the position is entirely different where the suit has already abated on the death of the assignor plaintiff. In such an event, if once the suit has abated, the assignee cannot continue the suit under Order 22, Rule 10 of the Civil P. C. inasmuch as there is no suit pending to be continued at the instance of the assignee. A suit having abated, there is nothing for the assignee to continue. That is the precise scope of Rules 3, 4 and 10 of Order 22 read conjointly. I am fortified in my view by a Bench decision of the Calcutta High Court in the case of Kedar-nath Kanoria v. Khaitan Sons and Co. (AIR 1959 Cal 368) wherein Das Gupta, C. J. and Bachawat, J., both, while dealing with this matter separately, have, if I may say so with utmost respect, laid down the correct principles of law in which view I find myself in complete concurrence. Their Lordships have said that an application under Order 22, Rule 10 of the Civil P. C. was not maintainable after the suit had abated. A question was posed by Das Gupta, C. J. in para 38 at page 373 in the following terms:--
"Is it possible however to give such permission to continue the suit under the provisions of Order XXII, Rule 10 of the Civil P. C. even where the suit has abated?"
The question thus posed has been replied in unmistakable terms in these words:--
"It seems to me a contradiction in terms to say that the person on whom the interest has devolved is given leave to continue the suit after the suit has ceased to exist. Something which has ceased to exist cannot be allowed to continue and wide though the powers of the court be, and, should be, in the interests of justice I am unable to persuade myself that a suit which has abated can be allowed to be continued."
This clearly meets the contention put forth on behalf of the petitioner.
5. Sufficiency of cause not having been accepted by the courts of fact for the purpose of setting aside abatement, there cannot be held to be any jurisdictional error in the orders of the courts below in not substituting the petitioner in place of Narsingh Lal aforesaid after setting aside abatement. No interference in the orders purported to have been passed under Order 22, Rule 9 of the Civil P. C. is warranted. So far as the alternative stand of the petitioner with regard to the case being covered under Order 22, Rule 10 of the Civil P. C. is concerned, for the reasons given above, that carries no merit,
6. This application, accordingly, fails, and is dismissed, but, in the circumstances of the case, I shall make no order as to costs.