Gujarat High Court
Matuben Sundarji Sejpal vs Anantbhai Tekchand on 7 December, 1994
Equivalent citations: (1995)1GLR351
JUDGMENT S.M. Soni, J.
1. Order dated 6-1-1993 passed by the Additional Judge, Small Cause Court, Rajkot in Regular Civil Suit No. 70 of 1988 below application at Ex.57 is under challenge in this revision application.
2. Present applicant/plaintiff filed an application under Section 5 of the Limitation Act for condoning the delay in filing an application for bringing heirs of deceased-defendant Tekchand Nithaldas. Deceased died on 4-8-1990 and plaintiff came to know of the same vide purshis filed by the defendant's Advocate on 6-9-1990. Plaintiff thereafter filed an application for bringing the heirs on record on 11-12-1990. As there appeared to be delay of about six days, an application for condonation of delay came to be filed. The learned Judge, after hearing the parties, dismissed the said application on the ground that the plaintiffs application is not in accordance with law and is not maintainable inasmuch as the plaintiff ought to have filed an application for setting aside the abatement and bringing the heirs on record and if there was any delay in the same, for condonation of delay.
3. Mr. Lakhani, learned Advocate for the applicant, contended before the Court that filing of an application for bringing the heirs on record contemplates or implies setting aside of abatement and then bringing the heirs on record and if there is any delay, there was sufficient cause for delay in filing such application and the same should have been condoned. Mr. Lakhani further contended that the Court ought not to have taken such a too technical view of the matter, particularly when an application for bringing heirs on record is filed within the period of setting aside an abatement. Mr. Lakhani, therefore, contended that the order passed by the learned Judge is required to be quashed and set aside and his application at Ex. 57 be allowed.
4. Mr. P.M. Thakkar, learned Advocate appearing for the respondent, contended that in absence of setting aside abatement, there is no question of bringing the heirs on record. Unless abatement is set aside, heirs cannot be brought on record and there is no question of condoning delay in absence of any application for setting aside abatement. Abatement is a process of law which occurs by the passage of time without any action on the part of either party. Under the provisions of Order 22 of C.P.C. if a party to the litigation dies, then on completion of 90 days, that litigation stands abated if cause does not survive and if survives, then unless the same is set aside there is no question of bringing heirs on record and no question of condoning delay for filing an application for bringing the heirs on record.
5. Rule 4 of Order 22 of C.P.C. provides for the procedure in case of death of one of several defendants, or of sole defendant. Relevant part reads as under:
(1) Where...sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
XXX XXX XXX XXX XXX XXX XXX XXX XXX (3) Where within the time limited by law, no application is made under Sub-rule (1), the suit shall abate as against the deceased-defendant.
Sub-Rule (5) provides for condonation of delay in filing an application for setting aside abatement. In the instant case, plaintiff has filed an application for bringing heirs on record and has also filed an application for condonation of delay in filing the said application. Filing of an application for bringing heirs on record implies that the plaintiff wants to set aside the abatement, if any, that has occurred and bring the heirs on record. No application for bringing heirs can be granted without setting aside an abatement. Therefore, in my opinion, filing of an application for bringing heirs on record impliedly states that the plaintiff or an applicant wants the abatement to be set aside and bring heirs on record. Time and again it is stated by the Supreme Court that procedure is a hand-made of justice. If an application for setting aside abatement is made, question is whether an application for setting aside an abatement only can be filed without an application for stating the names of the heir of the deceased-defendant to be brought on record? In my opinion, the answer is no, because simple application for setting aside an abatement without an application for bringing heirs on record is of no avail or value, as on setting aside the abatement in absence of heir, the same process of abatement again will become operative because heirs are not brought on record. Therefore, filing of an application for bringing heirs on record of the deceased-defendant impliedly conveys or states that the applicant wants to set aside the abatement and to bring heirs on record. In the instant case, application for bringing heirs on record is filed within the period contemplated under the law for setting aside abatement and, therefore, there was no question of condonation of delay as within the period of 60 days on expiry of 90 days of the demise of the party, the application for setting aside abatement can be filed. Therefore, there was no question of filing an application for setting aside abatement, but Court should have read a prayer for setting aside abatement. The Courts ought not to have been that hyper-technical one as referred to by A.M. Ahmadi J., as he then was, in the case of Mohatta Bros. v. Chaturbhaidas Chimanlal and Ors. [1982(1)] XXIII (1) GLR 585. In that case, the identical question arose where the period for setting aside an abatement had also expired and the applicant had filed an application for bringing heirs on record and an application for condonation of delay. There also, the learned Judge rejected the application on the ground that there is no relief prayed for setting aside the abatement. This Court has observed as under (at page No. 590 of GLR ):
In my opinion, the argument is of a hyper-technical nature. Sub-rule (3) of Rule 9 of Order 22 in terms states that after the expiry of the period of sixty days prescribed by Sub-rule (2) of Rule 9, an application can be filed invoking the porvisions of Section 5 of the Limitation Act. It is in cases where an application is filed after the expiry of sixty days from the date of abatement that an application under Section 5 of the Limitation Act is contemplated. There is no provision for condonation of delay in making the application for setting aside the abatement except the provisions found in Order 22 Rule 9 of the Code. If no application is made within a period of ninety days under Order 22 Rule 4(1) of the Code, the suit abates as against the deceased defendant by virtue of Sub-rule (3) of that Rule. Such an abatement can only be set aside by resorting to the procedure laid down in Rule 9 of that Order. If the application for setting aside the abatement is made within sixty days from the date of abatement, that application would be governed by Sub-rule (2) of Rule 9 of Order 22 but if the application is made after the period of sixty days has expired, the plaintiff can apply under Sub-rule (3) read with Section 5 of the Limitation Act for setting aside the abatement and on the being set aside, the Court would be empowered to allow the application under Order 22 Rule 4(10 of the Code. Therefore, the only procedure which the plaintiff can follow after the suit has abated under Order 22 Rule 4(3) is that which is set out in Rule 9 of that Order. An application under Section 5 of the Limitation Act can be made only after the suit has abated and a period of sixty days from the kdate of abatement has elapsed. Such an application can only be to set aside the abatement on sufficient cause being shown by the plaintiff. Therefore, the contention of Mr. Trivedi that since there is not specific prayer in the application made under Section 5 of the Limitation Act for setting aside the abatement, it cannot be construed to be an application under Sub-rule (3) of Rule 9 of Order 22 is a hyper-technical one and unsustainable.
6. In view of this fact, the order of the learned Judge is set aside. Abatement also is set aside. The heirs to be brought on record and the learned trial Judge is directed to proceed further in accordance with law. Rule made absolute accordingly. No order as to costs.