Patna High Court
Puranmal Bajoria vs Nagarmal And Ors. on 2 August, 1979
Equivalent citations: AIR1980PAT143, AIR 1980 PATNA 143
ORDER Shivanugrah Narain, J.
1. These two applications arise out of a common order dated 31-7-1971 passed by the Additional Subordinate Judge, Second Court, Monghyr, in Title Suit No. 12/13 of 1961/71 and have been heard together. This order will govern them both.
2. Opposite party Nos. 1 to 16 and one Sitaram, who was plaintiff No. 11, filed the aforesaid Title Suit no. 12 of 1961 in the Court of the Subordinate Judge, First Court, Monghyr, for declaration of title to and confirmation of possession in respect of 25.35 acres of land in Monghyr district, fully described in Schedule 2 of the plaint. In that suit they also prayed for partition of two houses along with certain lands situated in the district of Bhagalpur, detailed in Schedule 1 of the plaint, and also for recovery of Rs. 17,750 and Rs. 81,800 as compensation for use and occupation of the two houses aforesaid and half share of the price of the trees detailed in Schedule 4 of the plaint. According to the plaintiffs Schedule 2 properties had been purchased by them, but in the name of the defendants who were their 'benamidars', but as the defendants refused to execute a deed of relinquishment in their favour, the plaintiffs had to institute the suit. The plaintiffs alleged that though the Bhagalpur properties described in Schedule 1 of the plaint belonged to the plaintiffs and the defendants half and half and the defendants were in possession of the half share in the house belonging to the plaintiffs as tenants, they had claimed to be the full owners of the entire Schedule 1 properties and were thus liable to pay compensation for use and occupation of the half share and the price of the trees standing on the lands appurtenant to the houses which they had cut away and sold and that the plaintiffs were entitled to partition of Bhagalpur properties.
3. The defendants resisted the suit on the ground that the plaintiffs had no title or possession over the Bhagalpur properties. As regards the Monghyr properties detailed in Schedule 2 to the plaint, the defendants admitted that they were the benamidars and asserted that there was no cause of action for the suit in respect of Schedule 2 properties as they were always prepared to execute a deed of relinquishment subject to the execution of a deed of indemnity by the plaintiffs.
4. During the pendency of the suit, Sitaram, plaintiff No. 11, died leaving behind as his heir his widow Sumitra Devi and his mother, who was already on the record as plaintiff No. 9. No application to substitute Sumitra Devi in place of deceased plaintiff No. 11 was filed. On 14-9-1963, the petitioners in this Court, who were defendants 4 to 8 in the suit, filed an application stating that the entire suit had abated because Sumitra Devi had not been substituted in place of the deceased plaintiff No. 11 within the period allowed by law. The plaintiffs filed a rejoinder to the said application asserting that the mother, plaintiff No. 9, and the brothers of the deceased plaintiff No. 11, with whom plaintiff No. 11 constituted a joint family, were already on record and they fully represented the estate of the deceased plaintiff No. 11 and that there was no abatement in spite of the non-substitution of the widow of plaintiff No. 11. They also alleged that the widow Sumitra Devi was in a very hopeless state of health and it was apprehended that she might die any day. It appears that before the question could be decided, Sumitra Devi died on 29-11-1963. The matter was elaborately argued and, thereafter, by his order dated 29-4-1964, Shri Umardaraz, the learned Subordinate Judge, then in seisin of the case, held that the suit had abated so far as the interest of Sumitra Devi was concerned, and that as a result of the non-substitution of the said widow, the suit had abated in its entirety as the plaintiffs did not constitute a joint Hindu family at the time the present suit was instituted and the share of plaintiff No. 11 was nowhere denned or specified. He, however, held that the suit could proceed so far as the interest of the surviving plaintiffs was concerned with respect to the properties specified in Schedule 2 to the plaint and that it had abated only to the extent of the share of plaintiff No. 11 in that property.
5. Against the aforesaid order of the learned Subordinate Judge, the plaintiffs opposite party filed an appeal in this Court which was numbered as F. A. No. 336 of 1964. On 5-1-1970 the memorandum of appeal filed in that case was ordered to be returned to the appellants after the Bench hearing the appeal had expressed the view that the appeal was premature and the Court below was directed to endeavour to expedite the disposal of the suit. Thereafter on 27-2-1970, the plaintiffs in the Court below filed an application under Order 22, Rule 9 of the Code of Civil Procedure for setting aside the abatement due to the death of the deceased plaintiff No. 11, On that very date, they also filed a separate application under Section 5 of the Limitation Act for condoning the delay in filing the application for setting aside the abatement. A third application for amendment of the plaint was also filed by the plaintiffs on that very date. Rejoinders to these applications were filed by the petitioners and on 31-3-1970, the defendants petitioners filed an application purporting to be under Order 14, Rule 2 and under Order 15, Rule 1 of the Code of Civil Procedure praying that the suit relating to Monghyr properties be decided on the pleadings themselves. All the four applications were disposed of by a common order of Shri Shankar Prasad, Addl. Subordinate Judge, Second Court, Monghyr, before whom the case had come on transfer.
The Learned Subordinate Judge allowed the application for amendment of the plaint on payment of Rs. 50 as costs to the defendants and held that the suit had not abated. He also rejected the application filed by the defendants by holding that the order of abatement passed by Shri Umardaraz should be set aside as the suit had not abated. He also allowed the petition under Section 5 of the Limitation Act for condonation of delay on payment of Rs. 50 as costs. Being aggrieved by that order, the defendants 4 and 8 have come up to this Court in revision. Civil Revision No. 931 is directed against the order allowing the application for amendment while Civil Revision No. 932 is directed against the other parts of the order.
6. I will take up Civil Revision No. 931 first. I have already stated the reliefs claimed by the plaintiffs in the suit. While claiming partition of Schedule 1 properties the plaintiffs have prayed for carving out a separate patti of the plaintiffs and for possession over the same. It was stated in the plaint that the family of the plaintiffs was a Mitakshara Hindu joint family up to 1954 vide paragraph 1. It was also stated vide paragraph 10 that after the death of the father of plaintiffs Nos. 7 and 8 in 1952 there was a rift in the family of the plaintiffs, for partition, arbitrators were appointed and award given therein. A suit was filed for setting aside the award but ultimately at the appellate stage in 1958 the suit was compromised. By the application under Order 6, Rule 17, C.P.C. the plaintiffs prayed that the plaint be amended by adding the following averments at the end of paragraph 10 :
"It was acknowledged in the said compromise that partition had been effected between the plaintiffs inter se as per registered deed of partition dated 10-6-58 whereby three parties were carved out, one for plaintiffs Nos. 1, 3, 4 and 5, another for plaintiffs Nos. 2 and 6 and third for the rest of the plaintiffs. Subsequently, by means of registered partition deed dated 17-4-59, the patti allotted to plaintiffs other than plaintiffs Nos. 1 to 6 was further partitioned, whereby the shares of plaintiff No. 7 Nandlal and his sons, on one part, the shares of plaintiff No. 8 Murlidhar and his sons, on second part, and the shares of plaintiff No. 9 Rukmini Devi and her sons on the third part were separated; each part getting one third share in the properties allotted to the plaintiffs Nos. 7 to 17 in the partition dated 10-6-58."
I have already stated that there were 17 plaintiffs in all including the deceased plaintiff No. 11 Sita Ram. All these plaintiffs belonged to the family of Chiranji Lal. The application for amendment was opposed by the defendants on the ground that the amendment sought for was a mere device for circumventing the previous order of the learned Subordinate Judge holding that the suit had abated in its entirety so far as the properties specified in Schedules 1, 3 and 4 of the plaint are concerned and to the extent of the interest of the deceased plaintiff No. 11 so far as the properties specified in Schedule 2 of the plaint are concerned. The learned Subordinate Judge held that by the amendment sought for the plaintiffs merely wanted to amplify their case of partition inter se, which had been specifically averred in paragraph 10 of the plaint and did not seek to make out new case, that the amendment was vital and necessary for the proper adjudication of the issue involved in the suit and that it was not mala fide and designed for causing injury to the defendants. It is on these findings that the learned Subordinate Judge has allowed the amendment.
7. Shri Thakur Prasad appearing on behalf of the petitioners, has made no attempt to challenge the finding of the learned Subordinate Judge that by the amendment the case of partition inter se originally pleaded was being merely amplified and that no new case was sought to be made out by the plaintiffs. He, however, strenuously contended that the amendments made were not at all necessary for the purpose of determining the real issue in controversy between the parties and, therefore, the court acted illegally in allowing the amendment. According to him the amendments only specified the share in the suit properties of the plaintiffs inter se which was not at all necessary for determining the real question in controversy, namely, whether the plaintinffs were the real owners of Schedule 2 properties or they had together half share in Schedule 1 properties. In my opinion, this contention is not tenable. After the death of plaintiff No. 11 and non-substitution of his heirs, a question arose whether the suit had abated so far as the interest of plaintiff No. 11 was concerned and if it did so abate, whether the result was to make the suit incompetent. It is true that when this question of amendment arose, those questions had already been determined by the trial court by its order dated 29-4-1964 but that order was not final, the appeal against it having been merely withdrawn as it had been held to be premature. The correctness of that decision could be challenged in the appeal filed from the final decree. In that appeal that question would well be a matter of controversy and for the decision of that question it was necessary to know whether the shares of the plaintiffs inter se had also been ascertained and defined and if a partition inter se had not taken place. An appeal is in the nature of a re-hearing of the suit and if the question could be the subject-matter of controversy in appeal, it cannot be said that it was not a matter in controversy in the suit. This contention must, therefore, be rejected. The amendment could not be said to be mala fide merely because one of the effects of the amendment may be to facilitate setting aside the previous order, if the amendment was necessary for determination of the real matters in controversy. Sri Thakur Prasad's contention that the application for amendment was mala fide cannot be accepted. And if the amendment related to a matter already in controversy, there is no question of the defendants being taken by surprise or sustaining irreparable loss as a result of the amendment. No case for interference with the order of amendment has, therefore, been made out. Civil Revision 931 must, therefore be dismissed.
8. Civil Revision 932 -- This civil revision is directed against the order setting aside a final order of abatement. As pointed out by G.N. Prasad, J. in the case of Mahabir Prasad v. Narmadeshwar Prasad (AIR 1967 Pat 326), it is the settled practice of this Court that where two distinct matters are dealt with by one order of the court below, then the party aggrieved thereby must file separate revision applications challenging in each the two distinct matters in regard to which it seeks the interference of this Court. The matter arising upon the application under Order 14, Rule 2 and Order 15, Rule 1, C.P.C. filed by the defendants, namely, whether the suit should be decided without taking any evidence, was a matter distinct from the matters of abatement or setting aside abatement or condoning the delay in filing the application for setting aside abatement and that, in accordance with the aforesaid practice, should, as contended by Shri Ghosh, have been the matter of a separate application. In my opinion, however, it is not necessary to repel the challenge to that part of the order of the learned Subordinate Judge by which he had rejected that prayer on behalf of the defendants on this ground, because on the merits also the challenge must fail. In that application, a copy whereof is Annexure 5 in Civil Revision 932, the defendants had stated that in view of the order of abatement already passed by the court, the suit with respect to the Monghyr properties only had to be decided and in view of the stand of the defendants with regard to Monghyr properties, there was no necessity for amendment and it was stated that the suit relating to the Monghyr properties be decided on the pleadings themselves. Under Order 15, Rule 1, C.P.C. which, as rightly conceded by Shri Thakur Prasad, the learned Advocate for the petitioner, is alone relevant, the Court may at once pronounce judgment if at the hearing of a suit it appears that the parties are not at issue on any question of law or of fact. If the abatement of the suit with respect to the properties in other schedules is set aside, as it has been set aside by the learned Subordinate Judge, this rule obviously can have no application because so far as those properties are concerned, admittedly the parties are at issue on questions of law and of fact. Further, even if we proceed on the footing that the order of abatement with respect to the properties detailed in Schedules 1, 3 and 4 subsists in my opinion, the court could not at once pronounce judgment in terms of Order 15, Rule 1, Though it is true that the defendants admit that they were benamidars of the plaintiffs so far as Schedule 2 properties were concerned, the defendants had specifically stated in the written statement that the plaintiffs "never had any cause of action against the defendants in respect of the property mentioned or referred to in Schedule 2 to the plaint--vide paragraph 30 of the written statement." The plaintiffs had averred that they had cause of action for the suit in respect of Schedule 2 properties as well because of the refusal of defendants to execute a deed of relinquishment. Therefore, it is manifest that the plaintiffs and defendants on the point were at issue as to whether or not the plaintiffs had any cause of action for the suit in respect of Schedule 2 property. The application to pronounce judgment in accordance with Order 15, Rule 1, C.P.C. was, therefore, rightly rejected.
9. I now take up the statement matter. Shri Thakur Prasad first contends that the court below had, in the absence of any application under Section 151, C.P.C., no jurisdiction to review the order dated 29-4-1964 of Shri Umardaraz, Subordinate Judge, who was then in seisin of the case, that the appeal had abated in its entirety so far as the properties specified in Schedules 1, 3 and 4 were concerned and to the extent of the interest of the deceased plaintiff No. 11 in respect of the properties specified in the Schedule to the plaint due to the non-substitution of the heir of deceased plaintiff No. 11, namely, Sumitra Devi as the re-determination of the question was barred by the principles of res judicata. In my opinion, this contention is correct, There was no application under Section 151, C.P.C. and Shri S.C. Ghose, learned counsel for the opposite parties, has not supported the order of the learned Subordinate Judge holding that the suit had not abated on account of the non-substitution of the widow of deceased plaintiff No. 11 by order passed under Order 47, Rule 1, C.P.C. Now the question whether there had been an abatement or not, had been decided by Shri Umardaraz. It is not contended and indeed cannot be contended that he had no jurisdiction to decide this question. A fresh adjudication of the said question was clearly barred by the principles of res judicata. It is well settled that the principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court, having at an earlier stage decided a matter in one way, will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings -- Satyadhyan Ghosal v. Smt. Deorajin Debi (AIR 1960 SC 941 at pp. 943-944).
10. The court below in negativing the argument on behalf of the defendants that the question of abatement had been finally decided and could not be reopened so far as that court was concerned, clearly erred in law and its order that the suit had not abated is clearly a case of assumption of jurisdiction after an erroneous decision. The order of the learned Subordinate Judge that the suit had not abated cannot, therefore, be sustained and must be set aside.
11. Shri Thakur Prasad contends that the learned Subordinate Judge has set aside the order of abatement merely on the footing that the previous order of abatement was erroneous and that he has not set aside the order of abatement by allowing the application under Order 22, Rule 9, C.P.C. filed by the plaintiffs. If this construction of the impugned order were correct, it would necessitate a remand to the court below, for it is clear that the duty of the court is to pass an order on an application to set aside the abatement made to it and if it fails to pass any orders on an application under Order 22, Rule 9, C.P.C. it clearly fails to exercise a jurisdiction vested in it by law. In my opinion, however, if the impugned order is, as it must be, read as a whole, it also amounts to an order setting aside abatement under Order 22, Rule 9, C.P.C. After allowing the amendment prayed for, the court below proceeded to consider the question of abatement. Thereafter, in the light of the new facts brought on record by the amendment, the court below came to the conclusion that the order of abatement passed by Shri Umardaraz should be set aside and in paragraph 11 it records the finding that the suit had not abated. If the consideration of the matter of abatement had stopped there, there would have been substance in the contention that the abatement had been set aside not by allowing the petition under Order 22, Rule 9, C.P.C. but on the view that the previous order of abatement was wrong. But having held that, the court proceeded to consider the petition for condonation of delay under Section 5 of the Limitation Act and concluded:
"It is quite evident that the plaintiffs have been labouring under the impression that there has been no abatement of the suit and they even went up to the Hon'ble High Court to agitate this matter. The delay appears to be quite bona fide. Moreover, it is stated in the plaintiff's petition dated 28-11-63 that Sumitra Debi had been in a hopeless state of health and it was apprehended that she might die any day. Hence the delay on the part of the plaintiff is quite bona fide and it is only proper to condone that. Hence the prayer for condonation is hereby allowed and for this the plaintiffs are further saddled with payment of Rs. 50 as cost to the defendants."
The finding therefore, is that the plaintiffs were under the impression that there was no abatement of the suit and that Sumitra Devi was in hopeless state of health and the plaintiffs apprehended that she might die any day and that the delay on the part of the plaintiff in filing was quite bona fide. If the cause was sufficient for allowing the application under Section 5 of the Limitation Act, it was also sufficient for allowing the petition under Order 22, Rule 9, C.P.C. Sita Ram having died on 14-8-61, if an abatement took place on account of the non-substitution of his widow, it took place 90 days thereafter, i.e., nearabout 15-11-61 and the application under Order 22, Rule 9, C.P.C. itself became time-barred after the expiry of 60 days from the date of abatement. In order that the application under Section 5 of the Limitation Act be allowed, the plaintiffs had to show sufficient cause between some date in January, 1962 and till the date of the filing of the application. If the illness of Sumitra Devi or the misapprehension of the plaintiffs that there had been no abatement of the suit is sufficient cause for the period between January, 1962 and 27-2-70, the date on which the application under Section 5 of the Limitation Act was filed, it is also sufficient cause for not filing a petition for substitution between 14-8-61 and January 1962. If the impression of the plaintiffs continued between the period January, 1962 and 27-2-1970, it certainly continued between the period 15-8-61 and the aforesaid date in January, 1962. It is thus crystal clear that the findings recorded by the learned Subordinate Judge for allowing the application under Section 5 of the Limitation Act would, in his view justify an order allowing the application under Order 22, Rule 9, C.P.C. Further, the entire purpose of allowing the application under Section 5 of the Limitation Act and condoning the delay was to enable the court to adjudicate upon the merits of the application under Order 22, Rule 9, C.P.C. Allowing an application under Section 5 of the Limitation Act to condone the delay in filing the application under Order 22, Rule 9, C.P.C. would be an empty exercise in futility if the learned Subordinate Judge had not intended to pass upon and allow the application under Order 22, Rule 9, C.P.C.
12. It is true that there is no express order allowing the application under Order 22, Rule 9, C.P.C., but regard being had to the aforesaid circumstances and the further circumstance that the petition under Order 22, Rule 9, C.P.C. had also to be disposed of by the court, the conclusion is clear that what the learned Subordinate Judge intended to do was to hold that there was sufficient cause not only for not filing the application under Order 22, Rule 9, C.P.C. within the period allowed by law, but also that there was sufficient cause for not continuing with the suit by filing an application for substitution of the widow of the deceased plaintiff No. 11. I do not think, in these circumstances this Court will be justified in remanding the matter for fresh decision of the application under Order 22, Rule 9, C.P.C. an order which would be inevitable if it is held that the learned Subordinate Judge has not passed any orders on that application, even though there is a sad omission by the learned Subordinate Judge to pass a specific order on the application. Regard being had to his findings to which I have referred, the learned Subordinate Judge must have allowed the application under Order 22, Rule 9, C.P.C. and passed a specific order to that effect had his mind been directed to the necessity of passing a specific order. We must, therefore, proceed on the footing that when the learned Subordinate Judge held that the delay on the part of the plaintiffs was quite bona fide and should be condoned, he impliedly held that the plaintiff had sufficient cause for not continuing the suit.
13. Shri Prasad next contends that even if it is held that the learned Subordinate Judge has passed such an order allowing the application under Order 22, Rule 9, C.P.C. he has exceeded his jurisdiction or at least acted illegally in the exercise of his jurisdiction in holding that there was sufficient cause for not continuing with the suit or there was sufficient cause for not filing the application under Order 22, Rule 9, C.P.C. within the prescribed period of limitation. He further argues that existence of sufficient cause is a condition precedent to the exercise of jurisdiction both under Order 22, Rule 9, C.P.C. and Section 5 of the Limitation Act and the court cannot give itself jurisdiction to make an order under Order 22, Rule 9, C.P.C. or Section 5 of the Limitation Act by wrongly deciding that there was sufficient cause. Shri Prasad strenuously contended that the averments in the petition under Order 22, Rule 9, C.P.C. or in the petition under Section 5 of the Limitation Act did not in law amount to an averment of 'sufficient cause' and alternatively that even if they did, there was no evidence in support of those averments of fact. He points out that under Order 22, Rule 9, C.P.C., the court can set aside the abatement only "if it is proved' that the plaintiff was prevented by sufficient cause from continuing the suit. He also referred to the decision of the Supreme Court in Union of India v. Ram Charan (AIR 1964 SC 215) in support of his contention that the person praying for setting aside the abatement must state facts which constitute sufficient cause for not continuing the suit and must also establish those facts by evidence and that it is the duty of the court to scrutinise the allegations of the applicant and consider the merits of the evidence led to establish the cause of the default of the plaintiff in not applying within time for impleading the legal representatives of the deceased or for setting aside the abatement. That principle admits of no dispute and is fully supported by the decision of the Supreme Court aforesaid, I, therefore, need not refer in detail to the aforesaid decision or consider the decision in Laurentius Ekka v. Dukhi Koeri (AIR 1926 Pat 73) on which also Shri Prasad relied. The question for consideration is whether the allegations made in the application under Order 22, Rule 9, C.P.C. or the application under Section 5 of the Limitation Act do amount to sufficient cause within the meaning of the expressions as used in the aforesaid statutory provisions and whether the error if any committed, by the court below is of such a kind as to justify interference in the exercise of revisional jurisdiction of this Court.
14. Now the sufficient cause set out, in the application under Order 22, Rule 9, C.P.C. filed on behalf of the plaintiffs was that "the plaintiffs were labouring under the impression that the interest of the deceased plaintiff was being adequately represented in the suit by his mother and brothers who were members of the joint family of the deceased plaintiff No. 11 and plaintiffs 9, 10 and 12". The sufficient cause set out in the application under Section 5 of the Limitation Act is substantially the same. It is argued by Shri Prasad that the sufficient cause alleged is misapprehension of the legal position and, therefore, ignorance of law which cannot constitute sufficient cause either within the meaning of Order 22, Rule 9, C.P.C. or Section 5 of the Limitation Act. In support of the argument that ignorance of law is not sufficient cause, reliance was placed on the decision of the Calcutta High Court in Koparmal Gurudayal v. Sagarmal Bengani (AIR 1972 Cal 430). In that case, a distinction was drawn between ignorance of law in respect of rights and mistake of law in going to one forum instead of another and it was held that ignorance of a legal right is no sufficient cause within the meaning of Section 5 of the Limitation Act, though mistake of law in going to one forum instead of another may constitute sufficient cause. Whether ignorance about the necessity of substituting the heirs of a deceased party amount to ignorance of a legal right is debatable. The decision seems to support the conclusion that it does not. In that case the decision of the Calcutta High Court reported in AIR 1925 Cal 684 (1) (Krishna Mohan v. Surapati Banerjee) setting aside an order of abatement the ground that the applicant, an illiterate villager, ignorant of procedure in court, did not know that an application for substituting the heirs of a deceased respondent had to be made -- was distinguished for, amongst others, the reason that in that case there was no question of asserting any right but merely the duty of substituting the legal representative of a deceased respondent (see page 443 of the Report).
That apart, in my opinion, in view of the facts and circumstances of this case, the conclusion can fairly be arrived at that this misapprehension of the plffs. as to the legal position was due to legal advice to that effect. It is true that there is no specific averment to that effect, but the circumstances of the case inevitably lead to that conclusion. Here the plaintiffs were persons who were fighting a litigation in which the suit filed by them was valued at Rs. 1,59,301 and considerable amount of court-fee had been paid by them. The plaintiffs were represented by lawyers. They must have known about the death of plaintiff No. 11 in due time almost shortly if not immediately after the death, as plaintiff No. 11 was the brother of plaintiff No. 10. They took up the position that no substitution was necessary, not only in the court below, but also in the appeal filed against that decision. In these circumstances, it can reasonably be said that failure to substitute the heirs of the deceased plaintiff was on account of the legal advice that his substitution was not necessary. The plaintiffs were, therefore, under the misapprehension as to the legal position due to legal advice. It is well settled that when delay is due to error of counsel and the error of counsel is not tainted by any mala fide motive on the part of the counsel there is sufficient cause for condoning the delay. See the decision of the Supreme Court in Lala Mata Din v. A. Narayanan (1969 (2) SCC 770). If, therefore, the entire delay was due to wrong legal advice, there was sufficient cause for condoning the delay and not continuing the suit by filing the application for substitution.
15. Shri Prasad, however, contends that misapprehension as to the legal position could not explain the entire delay because the misapprehension must have ceased after the order dated 29-4-1964 of the learned Subordinate Judge to the effect that the substitution was necessary, and as repeatedly held by the Supreme Court in several decisions including the case of Ramlal v. Rewa Coalfields Ltd. (AIR 1962 SC 361), before taking advantage of the provisions of Section 5 of the Limitation Act, the person must explain each day's delay from the expiry of the period of limitation till the filing of the application. I am unable to hold that the misconception about the legal position must have come to an end with the passing of the order dated 29-4-1964. The correctness of that order was challenged in appeal and the failure to file an application prior to 27-2-1970 may well have been due to that misconception of law which may have continued till advice was given to file the application under Order 22, Rule 9, C.P.C. as the said application specifically states that it was being filed on the advice of lawyers immediately thereafter. So the circumstance that the records from the High Court had reached the trial court on 13-1-70, to which at one time I was inclined to attach some importance, does not militate against the conclusion that the misconception had continued till the plaintiffs got the advice to file the application under Order 22, Rule 9, C.P.C
16. I may further point out that the legal position as to whether an application for substituting one of the heirs of a deceased plaintiff is necessary even though another heir of the deceased plaintiff is already on record and the interest and the case of the heir omitted to be substituted is identical to that of the heir already on record and there is no fraud and collusion, is not quite free from difficulty. In Mahabir Prasad v. Jaga Ram (AIR 1971 SC 742) Shah, J. (as he then was) observed:
"Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative, Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate........."
It is therefore, not a case in which the averments in the application on the face of it clearly and manifestly failed to explain each day's delay from the time the suit abated till the date of filing of the application.
17. Shri Prasad also contends that even if the averments amount to be sufficient cause, they had not been proved to be correct and refers to the circumstance that neither of the two applications, namely, the application under Order 22, Rule 9, C.P.C. or the application under Section 5 of the Limitation Act, was supported by an affidavit. Though a rejoinder was filed to the applications, there is no averment in the rejoinder filed on behalf of the defendants that the plaintiffs were not under a misapprehension of the legal position as claimed by them. It is true that it was alleged in the rejoinder that the application had been filed with an ulterior motive, the ulterior motive being to get over the order of abatement first. I am unable to regard the averment that the petitions had been filed "with an ulterior motive of circumventing the dismissal of the suit with respect to the properties of Bhagalpur district on account of the abatement of the suit" as a denial of the averment that the plaintiffs were under a misconception as to the legal position. The motive for getting over the abatement is present in all applications for setting aside the abatement. It is the necessity of setting aside the abatement that inspires each and every application under Order 22, Rule 9, C.P.C. In these circumstances, when the averment that the plaintiffs were under a misconception as to the legal position had not been specifically denied, the circumstances referred to above are, in my opinion, sufficient proof of the fact that the failure to apply to set aside the abatement or for substituting the widow was due to a misconception as to the legal position. The argument that the averments neither constitute sufficient cause nor have been proved must, therefore, fail. Upon this conclusion there is no ground for interfering in revision with the order which amounts to an order setting aside the abatement under Order 22, Rule 9, C.P.C. after condoning the delay in filing the application. It is, therefore, not necessary for me to go into the question whether this Court in revision can interfere with an order wrongly holding that the plaintiff who had filed the applications under Order 22, Rule 9, C.P.C. or under Section 5 of the Limitation Act had sufficient cause for not filing the applications in time.
18. It remains now to consider the submission of Shri Prasad that on the facts and in the circumstances of this case the learned Subordinate Judge had no jurisdiction to set aside the abatement in exercise of the powers under Order 22, Rule 9, C.P.C, The argument put forward is that Order 22, Rule 9, C.P.C. has no application to a case where the court declares that the suit has abated as a result of the non-substitution of the legal representatives of the deceased plaintiff as the cause of action in such a casa does not survive to the remaining plaintiffs. Such an order the argument runs amounts to a decree and the sole remedy of the plaintiff is to prefer an appeal against that. In my opinion, this contention is unsound.
19. A number of decisions have been cited by the learned counsel in support of the proposition that an order holding that the appeal has abated is a decree and appeal lies therefrom, e. g., the decision in Hemayat Ali v. Nagina Chamar (1977 BBCJ (HC) 496). I need not, however, consider this decision or even refer to some other decisions which were cited on this point even though, in my opinion, where the order has held that the suit has not abated in its entirety, as in the present case, and, therefore, the suit has still to be decided, whether the order amounts to a decree and is appealable, is a matter not free from doubt the appeal against the present order was held to be non-maintainable, in my opinion, the question whether the order amounts to a decree and is appealable cannot be decisive on the point whether an application under Order 22, Rule 9, C.P.C, to set aside the abatement is maintainable or not. It is well known that though an order decreeing a suit ex parte amounts to a decree and is appealable, still an application under Order 9, Rule 13, C.P.C. lies to set aside the ex parte decree. The question whether an application under Order 22, Rule 9, C.P.C. lies after any particular order holding that the suit had abated either in whole or in part, must therefore, in the last analysis be determined with reference to the provisions of Order 22, Rule 9, C.P.C. which confers and thus defines and delimits the jurisdiction.
20. Order 22, Rule 9, C.P.C. runs thus:
"(9) Effect of abatement or dismissal, (1) Where a suit abates or is dismissed under this order no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the Indian Limitation Act shall apply to an application under Sub-rule (2)."
Under this rule, therefore, an application to set aside the abatement or dismissal is maintainable at the instance of any claimant or a legal representative of a deceased plaintiff, which expression includes an appellant. The only requisite for the applicability of Order 22, Rule 9 (2) is that the application on behalf of the plaintiff must be an application "for an order to set aside the abatement or dismissal". The use of the definite article 'the' makes it clear that the abatement or dismissal referred to in Order 22, Rule 9 (2) is the abatement or dismissal referred to in Sub-rule (1) of Rule 9, i.e., an abatement or dismissal 'under this Order', namely, Order 22. An order of abatement under Order 22 can be passed either under Order 22, Rule 3 if within the time limited by law no application is made to substitute the legal representatve of the deceased plaintiff as required by Sub-rule (1) of Rule 3, Order 22 or under Sub-rule (3) of Rule 4 of Order 22 where within the time limited by law no application is made to substitute the legal representative of the deceased defendant as required by Sub-rule (1) of Rule 4 of Order 22. These are the only two circumstances in which an (abatement takes place under Order 22. An application under Clause (2) of Rule 9 to set aside abatement can, therefore, be made, as held by a Bench decision of the Madras High Court in Subramania Iyer v. Venkataramier (AIR 1916 Mad 1068), only in "cases where the abatement takes place in consequence of an application not having been made within the time limited by law to bring in the legal representatives". No application to set aside abatement would lie where the suit had abated owing to the cause of action not surviving at all for some reason, for in such a case there is no question of the plaintiff having been prevented by any sufficient cause from continuing the suit.
21. Such was the position in the Madras case referred to above. In that case the suit appears to have been one for damages for malicious prosecution of the manager of an undivided Hindu family brought by the manager himself. The manager was the sole plaintiff and upon his death, the trial court held that the suit had abated as the cause of action could not survive. An application appears to have been filed by the remaining coparceners under Order 22, Rule 9, C.P.C. to set aside the abatement. The trial court, the District Munsif, entertained the application but rejected the petition. On appeal however, the District Judge allowed the application. The Madras High Court in revision set aside the order of the learned District Judge and dismissed the application under Order 22, Rule 9 on the ground that the abatement had taken place because the cause of action did not survive and not because an application for substitution of legal representatives had not been made within the time limited by law. Their Lordships observed:
"...... the lower Appellate Court was in error in holding that the cause of action for a suit for damages caused by the malicious prosecution of the manager of an undivided Hindu family could survive to the remaining coparceners even as regards that portion of the claim which related to the loss incurred by the estate in the defence of the criminal case brought against the manager. The cause of action is a single and indivisible one and it is a personal action......... though the injury caused to the plaintiff may not be a personal injury in the sense of an injury to the physical or bodily personality......"
22. The aforesaid view of the learned Judges of the Madras High Court was approved by a Full Bench of the Lahore High Court in the case of Niranjan Nath V. Afzal Hussain (AIR 1916 Lah 245) (FB) in which relying upon the aforesaid decision of the Madras High Court Sir Shadi Lal, J. (as he then was) speaking for the Full Bench observed:
"The language of Order 22, Rule 9 (2), when carefully examined, leads us to the conclusion that it is confined to cases in which the abatement takes place by reason of an application not having been made within the time permitted by law to implead the legal representative of the deceased plaintiff or the deceased defendant, and that it has no applicability to cases in which the suit has abated on account of some other cause......"
23. The application under Order 22, Rule 9, was filed by the plaintiffs. Therefore, if the abatement which is sought to be set aside by this application had taken place "by reason of an application not having been made within the time permitted by law to implead the legal representative of the deceased......", the application is maintainable. The application would however, not be maintainable if the suit had "abated on account of some other cause". In my opinion, it is clear that in the present case the abatement took place by reason of an application not having been made within the time permitted by law to implead the legal representatives of the deceased plaintiff No. 11 and not on account of some other cause. There can be no doubt that if an application to implead all the legal representatives including the widow of the deceased plaintiff No. 11 had been filed within the time allowed by law, there would have been no abatement. The abatement was, therefore, an abatement in accordance with the provisions of Sub-rule (2) of Rule 3 of Order 22. It is true that the question whether the abatement had taken place or not on account of the failure to implead one of the legal representatives of deceased plaintiff No. 11 was the subject-matter of controversy and the court by a formal order decided that controversy in favour of the view that the abatement had taken place. But merely because the court recorded a formal order of abatement on account of non-filing of any application for substituting the widow of deceased plaintiff No. 11 within the time limited by law, the abatement does not cease to be one which has occurred on account of the failure to substitute one of the legal representatives within the time limited by law. The order dated 29-4-1964 did not bring about the abatement. The abatement had occurred on account of the provisions of Sub-rule (2) of Rule 3 of Order 22, i.e., the abatement was one under Order 22 for failure to bring the legal representative within the time limited by law. Even if no formal order of abatement had been recorded, if the view that an abatement occurred was correct, the abatement would have occurred. To repeat, the abatement brought about by the failure to substitute the legal representatives of the deceased plaintiff within the time limited by law does not cease to be an abatement by reason of the application for substitution not having been made within the time allowed by law merely because to such an abatement is super-added a formal order of the court recording the fact of such abatement. It follows, therefore, that the application under Order 22, Rule 9 was maintainable.
24. In Arjun v. Balwant (AIR 1954 Madh B 45) one of the plaintiffs, namely, Manik, died and an application was filed by some persons claiming to be the sons of Manik, for substitution in place of deceased Manik. Their application was rejected on the ground that they had failed to prove that they were the legal representatives of Manik. The remaining plaintiffs thereafter applied to the court that the suit be proceeded with, as the right to sue survived to them. The trial court rejected this plea and held that as the application for substitution had been rejected and the right to sue did not survive to the remaining plaintiffs alone the suit had abated. Thereafter the remaining plaintiffs filed an application under Order 22, Rule 9, C.P.C. for setting aside the abatement. The application was rejected both by the trial court and the District Judge on the ground that the application was barred by limitation. The applicants then moved the Madhya Bharat High Court in revision. The Madhya Bharat High Court affirmed the finding of the court that the application was time-barred. That finding was sufficient for disposal of the revision application. But the Madhya Bharat High Court went on to hold that Order 22, Rule 9, C.P.C. had no application whatsoever as in a case where the abatement is due to the court deciding that the right to sue does not survive, there is a formal adjudication which conclusively determines the rights of the parties and the order of the court falls within the definition of a decree and is appealable and it is not open to the party to apply for setting aside the abatement. The court held that in the case before it the court had treated the suit as having abated owing to the cause of action not surviving. Apparently, the court was of the opinion that it was a case where the abatement was due to the court deciding that the right to sue had not survived and not because no application to bring on record the legal representatives was made within the prescribed time.
25. The learned Judge of the Madhya Bharat High Court, I say so with great respect, was clearly in error in holding that in the case before him the abatement was not due to failure to bring on record the legal representatives within the prescribed time but due to the court deciding that the right to sue did not survive. As a matter of fact this conclusion is contradictory to the conclusion earlier arrived at by the learned single Judge that the plaintiffs' suit did not abate on 10-9-1951 when the court passed an order that on Manik's death the right to sue did not survive to the remaining plaintiffs. Repelling the argument to that effect, the learned single Judge observed:--
"...... There is no force in this contention, It is clear from the wordings of Order 22, Rules 3 and 4 that a suit abates automatically, if no application to bring on the record the legal representatives of the deceased person is made within the time prescribed by law, and that no declaration to this effect is necessary......
...... When, therefore, the Court rejected the application of Jiwanlal and Hargovind on the ground that they had not been proved to be the legal representatives of Manik and when thereafter no legal representatives of Manik was brought on record within ninety days of the death of Manik, the suit clearly abated on 20-4-1950......"
The learned Judge had, therefore, clearly held earlier that the suit abated on account of the failure to bring the legal representatives of Manik within 90 days of the death of Manik and not because of the order of abatement recorded by the court.
26. The learned Judge sought support for his conclusion that the application was not maintainable in the decision of the Madras High Court in Subramania Iyer's case (supra), but he failed to notice that that was a case where the suit had clearly abated because the sole plaintiff was dead and the cause of action was personal to him and did not survive at all and there was no question of the suit having abated on account of the failure to implead the legal representatives within the time limited by law. There is a distinction between a case where the right to sue does not survive at all and the sole plaintiff dies and the case contemplated by Order 22, Rule 3, C.P.C. where the right to sue does not survive to the surviving plaintiff or plaintiffs alone and where the suit abates only if no application for substitution of the legal representatives of the deceased plaintiff is made within the time limited by law. In the second case, the suit abates because no application to substitute the legal representatives of the deceased plaintiff is made within the time limited by law. In the first case the suit abates for some causes other than the failure to substitute the legal representatives of a deceased plaintiff within the time limited by law. Reliance on the decision of Subramania Iyer's case (supra) was, therefore, a mistake.
27. And for the same reason I am unable to accept it as correct, and I say so with great respect, decision of a learned single Judge of the Lahore High Court in General Trading Co., Kahuta v. Nihal Singh (AIR 1925 Lah 208). In that case upon discovering that one of the contributories Tehl Singh had died and no application had been made to bring some of his legal representatives on the record, the District Judge held that the proceedings had abated in toto. He also dismissed the subsequent application under Order 22, Rule 9 for setting aside the abatement on the ground that such an application could not be entertained and appeal ought to have been preferred against the order holding that the proceedings had abated which was tantamount to a decree. On appeal to the Lahore High Court, the learned single Judge upheld the order of the learned District Judge holding the application under Order 22, Rule 9, C.P.C. to be not maintainable. He observed:
"It has been held in Niranjan Nath v. Afzal Hussain that Order 22, Rule 9 (2), Civil procedure Code, is confined to cases in which abatement takes place by reason of an application not having been made within time to implead the legal representatives of the deceased party and that it has no application to cases in which the suit has abated on account of some other cause, for example, that the Court holds that the right to sue does not survive or that the death of one of several plaintiffs causes an abatement in toto."
Though about the correctness of the aforesaid principle there can be no doubt, the second example of the suit abating on account of some cause other than the failure to implead the legal representatives of the deceased party within the time limited by law, namely, the death of one of several plaintiffs causing an abatement in toto is clearly wrong. In that case also, as I have said, the abatement had occurred because of failure to implead the legal representatives within the time limited by law and not merely because of the cause of action not surviving to the remaining plaintiffs. In coming to this conclusion, the learned single Judge relied upon the Full Bench decision of the Lahore High Court in Niranjan Nath's case (supra). But the second example of a suit abating on account of some other cause is not given in the Full Bench decision. The example of abatement on account of some other cause given in the Full Bench decision is confined to abatement having taken place on account of the death of the sole plaintiff or defendant and the cause of action not surviving at all after his death.
28. The decision in the case of Brij Jivan Lal v. Shiam Lal (AIR 1950 All 57) is clearly distinguishable. In that case Wanchoo, J. (as he then was) had to decide whether an order of abatement was open to appeal and his Lordship held that an order of abatement due to the court deciding that the right to sue does not survive amounts to a decree and is appealable. That case is no authority for the proposition that where the court holds that the suit has abated because of the failure to implead the legal representatives of the deceased plaintiff within the time allowed by law after rejecting the argument to the contrary, no application under Order 22, Rule 9, C.P.C. to set aside the abatement is maintainable. The contention that the application under Order 22, Rule 9, C.P.C. was not maintainable must, therefore, fail.
29. In the result, the application is without merit and is, accordingly, dismissed with costs. Hearing fee Rs. 100 only.