Gauhati High Court
Shri. Sabu Kehie & Ors vs Shri. Sesei (Deceased) & Ors on 2 May, 2017
Equivalent citations: AIR 2018 (NOC) 250 (GAU.) (KOHIMA BENCH)
Author: S. Serto
Bench: S. Serto
Civil Revision Petition No. 9(K) of 2011
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
KOHIMA BENCH
Civil Revision Petition No.9 (K) of 2011
1. Shri. Sabu Kehie,
S/o Late Kezeu Kehie,
of Village Mezoma, Distrcit, Kohima
2. Shri. Salie Chüsi
S/o Late Chavi of Village Medziphema
District- Dimapur, Nagaland.
.............Petitioners/Appellants
-Versus-
1. Shri. Sesei (Deceased)
S/o Simson of Village Khaibung
District Dimapur P.O. Medziphema
2. Dr. Kakheto Zhimomi,
S/o Zhuikhu of Village Zhuikhu
District Dimapur P.O. Medziphema.
.............Respondents
- BEFORE-
THE HON'BLE MR.JUSTICE S. SERTO
For the Appellants : Mr. R. Iralu, Sr. Adv.
: Mr. K.L. Solo
: Ms. Alemla, Advs.
For the respondents : Mr. I. Longjem,
Mr. S.M. Ozukum, Advs.
Date of hearing : 21-03-2017
Date of Judgment : 02-05-2017
Page 1 of 13
Civil Revision Petition No. 9(K) of 2011
JUDGMENT & ORDER (CAV)
1. This is an application under Rule 32 of the Rules for the Administration of Justice & Police in Nagaland read with Article 227 of the Constitution of India praying for setting aside the order dated 16.08.2008, passed by the learned Civil Judge (Senior Division), Dimapur, in Civil Suit No. 12/2002, and the judgment and order passed by the learned Addl. District Judge, Dimapur, dated 16.06.2011, passed in F.A No.3/2009.
2. The brief facts of the case are as follows;
The petitioner filed a suit before the Additional Deputy Commissioner (Judicial) Dimapur, praying for declaration of Sale Deed, dated 28.03.2001, purportedly executed by the deceased respondent No.1/defendant No.1, in favour of the respondent No.2/.defendant No.2 in respect of the suit land as null and void, and for a declaration that the defendant No.1 had no valid title to sale the suit land to the defendant No.2 and also to declare him as rightful owner of the suit land. The suit was registered as Civil Suit No. 12/2002, in the court of Additional Deputy Commissioner (Judicial), Dimapur. Thereafter, the suit was transferred to the court of learned Civil Judge (Senior Division), Dimapur.
While the suit was pending the respondent No.2/defendant No.2 brought to the notice of the court that the respondent No.1/defendant No.1 has died and prayed for substitution of his name by the name of G.B-cum-Chairman of the Village. The same was objected by the petitioners stating that the respondent No.1/defendant No.1 should be substituted by his legal heirs. The court accordingly, rejected the prayer of the respondent No.2/defendant No.2 vide order passed on 24.04.2004. And while the case was pending as such, the respondent No.2/defendant No.2 filed an application praying for dismissal of the suit on the ground that the same was abated due to the death of the defendant No.1. The same was registered as Civil Misc Case No. 4/2008. The learned Civil Judge vide his order dated 16.12.2008, passed in said Civil Misc Case allowed the prayer of the respondent No.2/defendant No.2 and dismissed the suit as abated.
Aggrieved, the petitioners filed an appeal before the learned Addl. District Judge, Dimapur and the same was registered as F.A No. 3/2009. The learned Addl. District Judge upheld the order of the learned Civil Judge (Senior Division), vide his order dated Page 2 of 13 Civil Revision Petition No. 9(K) of 2011 16.06.2011, passed in the F.A No. 3/2009. The operative portion of the judgment of the learned Addl. District Judge are given here below;-
"Upon considering the submissions made by the learned counsels for the parties and on perusal of records, it is observed that the appellants/plaintiffs had taken shelter of Order 39 Rule 1 RW Section 151 of CPC while filing Misc Case No. 44/03 in the Civil Suit praying for injunction, wherein the learned Court below vide order dated 22/01/04 had granted the benefit to maintain status quo over the suit land. The record also speaks that the appellant had filed a petition under Order 6 Rule 17 of the Civil Procedure Code 1908, praying for amendment of the plaint which was allowed vide order dated 14/10/03, as such the contention of the appellants under reference made in AIR 1990 SC 73 that the Civil Procedure Code is not applicable in the instant appeal is misplaced and not tenable. Moreover, the fact that the CPC is not applicable in the State of Nagaland. Where the Rules for Administration of Justice and Police in Nagaland Act, 1937 is silent and an issued of law is placed before the Civil Courts, such issues can only be resolved by taking recourse to adopting the provisions of the CPC which is applicable in spirit in the State. Civil Courts in the State cannot have important issues of law unsolved on the ground that the Rules for Administration of Justice and Police in Nagaland Act, 1937 is silent and CPC is not applicable in the State. Therefore, taking recourse to the provisions of the CPC which is applicable in the State in spirit will be in the interest of justice. If such recourse in not adopted, many issues will be left unresolved and it will result in vexatious litigation. The Rules for Administration of Justice and Police in Nagaland Act, 1937 is only a skeletal rules which is not exhaustive, therefore, if the Rules for Administration of Justice and Police in Nagaland Act, 1937 is to be considered as the sole source of procedure/rules for disposal of Civil and Criminal justice in the State, then we are looking at a confused legal system. As stated our legal system cannot be solely based on a skeletal rules passed on by the colonial Britishers which was enforced during pre-independent era, we are to adopt new rules and laws as per the changing need of time.
For the instant matter, even customary law cannot be applied as the parties in the dispute are from three different tribes, having three distinct customs. Therefore, which of the three customary laws should be applied for resolution of the issue will also have to be answered if the matter is to be placed before customary courts. There is no answer.
We are therefore looking at an issue where neither the customary laws nor the Rules for Administration of Justice and Police in Nagaland Act, 1937 can bring any solution.
We are therefore left with no option but to follow the spirit of CPC, for the wheels of justice must keep spinning.Page 3 of 13
Civil Revision Petition No. 9(K) of 2011 The citation presented by the appellant in support for his argument in Re. Changki Village through Tinunokcha and otrs- Vrs- Tibungba Ao and Otrs. In AIR 1990 SC 73 has been given due consideration. Facts of the relied case is different from the present case at hand. The Apex Court observed that representative of respondent No.4 is on record and time to bring the legal representative of respondent No. 4 is on record and time to bring the legal representatives of the respondent No.1 has not lapsed. It was by way of casual observation that Apex Court has stated that, the provisions of the CPC are not applicable in the State of Nagaland in all their force and vigour. The observation has therefore no answer to the legal questions raised but just a mere obiter dicta. The Apex Court has not ruled that the provisions of CPC be totally discarded while resolving issues on matters placed before the Civil Courts in the State. In our case, the fact that the defendant No.1 who is the Vendor had died was duly notified to the Court and even a suggestion for substitution was made by the counsel for the defendant which was opposed by the plaintiff/appellant. Thereafter the learned trial court directed that a representative of the defendant No.1 be filed, but this was not acted upon. Non filing of the substation of legal representative of the deceased defendant No.1 will put the plaintiff/appellant to a disadvantage for the suit must abate in terms of the provisions of section 120 and 121 of the Limitation Act which is applicable in the State of Nagaland. A constructive duty is cast upon a party which tends to loss. We are not losing sight of the fact that the matter has been kept pending for more than 5(five) years which cannot be easily condoned. Therefore failing to take steps for the long unexplained period of file legal representative on a demise of the vendor and disputed of the suit for abatement after hearing the parties has caused no miscarriage of justice. The learned trial court has no option but to pass an order of abatement as the vendee cannot represent the deceased defendant no.1, the vendor as his legal representative for the vendor remains the principal defendant in the present suit at hand.
The submission put forth by the counsel for the appellant is correct in as much as "Duty is not cast upon any party for substitution" however the citation referred by the learned counsel finds no merit in the instant case since, it is observed from the records that the counsel for the deceased defendant had informed the leaned trial court on 15.10.2004 about the death of defendant No. 1. Learned court of the Addl. Dy. Commissioner (Judl.) had directed for substitution of the legal representative. Provision of Order 22 Rule 10-A had been complied with and presumable it is the plaintiff/appellant who should file the substitution petition in as much as it is the plaintiff/appellant who stands to loss for non- substitution within the prescribed time. The authority placed by the appellants reported in 1983 (2) GLR 455 therefore has no matching ratio in as much as the petition filed by the defendant was disposed by the learned court below taking due consideration of abatement of the suit.Page 4 of 13
Civil Revision Petition No. 9(K) of 2011 Furthermore, belatedly after lapse of over 5(five) years, the appellants/plaintiffs have prayed for allowing substitution of the deceased defendant by a guardian of the minor children of deceased defendant No.1. The appellants have failed to satisfy to show cause as to how the appellant/plaintiffs were prevented from substituting legal representatives of the deceased defendant from taking timely step to continue their suit which had abated on the death of defendant. The proposition of law in this issue is clear that the a Suit or Appeal abates automatically when on application for substitution is made out within 90 days as prescribed by Article 120 of Limitation Act. This prayer for substitution of deceased defendant by the appellant/plaintiff in their appeal memo contradicts the stand of the appellant/plaintiff that the entire suit does not abate even if the defendant dies.
In the light of the above, this Court is of considered view that the instant appeal is devoid of merit and the impugned order dated 16.12.08 passed by learned Civil Judge (Senior Division), Dimapur, Nagaland in CMC No. 4/08 arising in C.S 12/02 does not warrant interference from this Appellate Court.
Accordingly, the impugned order dated 16.12.08 passed by the Civil Judge (Senior Division) Dimapur in CMC No.4/08 is hereby upheld, however, there shall be no orders as to cost.
Judgment and order is hereby passed and pronounced in my open Court this 16th day of June, 2011."
3. Being not satisfied, the petitioners have come to this Court praying as stated above.
4. I have heard Mr. R. Iralu, learned senior counsel who appeared for the petitioners and also heard Mr. I. Longjem, learned counsel who appeared on behalf of the respondent No. 1 and 2.
5. Learned Sr. counsel for the petitioners, Mr. R. Iralu submitted that what has to be seen in this kind of case is whether cause of action survives or not. In this case, the defendant No.1 was the vendor and the defendant No.2 was the vendee of the suit land and since one of them i.e vendee is still alive and impleaded as defendant No.2 the cause of action still survives, therefore, the suit is not abated and it should not have been dismissed on that ground.
The learned counsel cited two cases in support of his submission in the case of L.A Collector -versus- Sambhu Deb Barma reported in (1983) 2 GLR 455 and in the case Page 5 of 13 Civil Revision Petition No. 9(K) of 2011 of Mohammad Arif vs Allah Rabbul Alamin And Ors reported in (1982) 2 SCC 455. The same are reproduced here below;-
(i). L.A Collector -versus- Sambhu Deb Barma reported in (1983) 2 GLR 455.
"We have heard the learned counsel for the parties.
The Land Acquisition Collector, West Tripura, representing the State of Tripura has filed Civil Misc. Appeal No. 58 of 1978 against Sanabhu Deb Barma, respondent. It appears from the infant application that Sambhu Deb Barma, the rule respondent died on 12th March, 1983. The instant application was filed on 27th April, 1983, by the present applicants claiming to be the legal representatives of Sambhu Deb Barma, deceased and praying that they may be substituted in place of Sambhu Deb Barma in the appeal. The applicant No. 1 is the widow of Sambhu Deb Barma, whereas the applicants No. 2, 4 and 6 are his sons and the applicants No. 3 and 5 are his daughters. A copy of this application was served on the learned counsel for the appellant on 27th April, 1983. Thus the appellant came to know of the death of Sambhu Deb Barma. However, no application was filed by the appellant for bringing on record the legal representatives of the deceased respondent. The question which now arises is as to whether the appeal has abated. True, it is that, no application was filed by the appellant within 90 days of the death of the rule respondent for bringing on record the legal representatives. However, the legal representatives of Sambhu Deb Barma themselves filed the instant application within the said period of 90 days and have prayed that they should be brought on the record as legal representatives of the deceased respondent. Rule 4 of Order 22 C.P.C. which governs the instant application prescribes the procedure to be followed in case of death of the respondent. It may be mentioned here that in view of Rule 11 of Order 22 C.P.C. the words 'plaintiff', 'defendant' and the 'suit' in that Order include 'appellant', 'respondent' and 'appeal' respectively. Rule 4 of order 22 requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. If no application is made within 90 days from the date of death the appeal in case of the death of the respondent abates. But if an appli- cation is moved within time the Court has to see as to whether the persons sought to be substituted in place of the deceased are his legal representatives and on being satisfied that the said persons are the legal representatives the order for bringing them on record in place of the deceased would be passed. Rule 4 of Order 22, however, does not say in specific terms as to who is to make such an application. If there is an application before the Court setting out the factum of the death of the respondent and also stating as to who are the legal representatives of the deceased respondent that application would be taken to have been moved in accordance with the provisions of Rule 4 of Order 22. Ordinarily in the case of the death of a respondent the appellant has to move such an application and if the appellant fails to file the application within the period prescribed by law the consequence has to follow. However, if the appellant does not file such application but the legal representatives of the deceased respondent file the application within the period of limitation the appeal cannot be said to have been abated. The view Page 6 of 13 Civil Revision Petition No. 9(K) of 2011 we have taken finds support from a, decision of the Supreme Court in Union of India vs. Ram Charan, AIR 1964 SC 215, wherein, referring to Order 22, Rule 4, it was laid down :
"The procedure requires an application for the making of the legal representatives of the deceased plaintiff on defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant." [Emphasis supplied] In the case in hand the respondent had died on 12th March 1983 and an application was moved by the legal representatives of the deceased respondent on 27th April, 1983. No objection has been filed to that application, the applicants claiming themselves to be impleaded in the appeal. Requirement of Rule 5 of Order 22 C. P.C. thus stands complied with. An application has been moved to-day by the appellant also serving a copy on the learned counsel for the legal representatives of the deceased respondent stating, inter alia, that the legal heirs had made an application under Order 22, Rule 4 for substitution and that the appellant bonafide believed that the said applica- tion by the legal heirs being in time and the said legal heirs having prayed for substitution of their names for the deceased-respondent, no separate application would be required to be filed. The explanation given by the appellant for not moving the application for substitution within time is that it was led to believe that as there was already an application moved by the respondent, no further application was required to be made by it. Since the law does not say as to who was to move the application and that there is an application in writing for bringing on record the legal representatives of the deceased respondent, we are inclined to accept the contention of the appellant that it bonafide believed that no further application was needed. The appellant has not contended in the application filed to-day that there are other legal representatives of the deceased respondent. The appellant has, therefore, accepted that the applicants who have moved the application in Misc. Case No. 161 of 1983 are the legal representatives of Sambhu Deb Barma who died on 12th March, 1983. They are therefore, to be substituted in his place in the appeal.
For the reasons in the foregoing, we allow this application and order that the name of Sambhu Deb Barma shall be deleted and in his place Smt. Anita Deb Barma, Sri Nandalal Deb Barma, Smt. Rani Deb Barma, Sri Biru Deb Barma, Smt. Malika Deb Barma and Sri Kesbab Deb, Barma shall be substituted as respondents.
The Misc. application is disposed of accordingly".
(ii) Mohammad Arif vs Allah Rabbul Alamin And Ors reported in (1982) 2 SCC 455.
"1. Special Leave Petition granted.Page 7 of 13
Civil Revision Petition No. 9(K) of 2011
2. After hearing counsel on either side we are satisfied that the High Court's order stating that the appeal had abated and the appellant Mohammad Arif could not be brought on record as a legal representative of Mohammad Ahmad is clearly wrong. It is true that the appellant did not prefer any appeal to the District Court against the original decree but in the First Appeal he was a party respondent. But that apart, in the second appeal itself Mohammad Arif had been joined as co-appellant along with his vendor, Mohammad Ahmed. On the death of Mohammad Ahmad all that was required to be done that the appellant who was on record should have been shown as a legal representative inasmuch as he was the transferee of the property in question and at least as an inter-meddler was entitled to be treated as legal representative of Mohammad Ahmed. He being on record the estate of the deceased appellant qua the property in question was represented and there was no necessity for application for bringing the legal representatives of the deceased appellant on record. The appeal in the circumstances could not be regarded as having abated and Mohammad Arif was entitled to prosecute the appeal. We, therefore, set aside the order of the High Court and send the appeal back to the High Court for disposal according to law.
3. This disposes of the appeal with no order as to costs".
6. The learned counsel for the respondents Mr. I. Longjem submitted that it was the duty of the plaintiff to bring in the legal heirs of the defendant No.1 to the suit after his death but did not do so for a long time inspite of the fact that the defendant No.2 brought it to the notice of the court and the plaintiff. When the plaintiff did it 4 years had elapsed then, therefore, it was barred by the law of limitation. The learned counsel further, submitted that the respondent No.2/defendant No. 2 is only a buyer and the main challenge in the suit was against the deceased defendant, therefore, when he died no cause of action survive in the suit as such, it was rightly dismissed as abated. As such, the petitioners have no case in this revision petition The learned counsel also submitted that though the provisions of CPC was not yet applicable in the State of Nagaland at that time the spirit of the same was applicable wherever the local laws does not provide for, therefore, the courts below had rightly applied the provisions of CPC and dismissed the suit. The learned counsel cited the following cases in support of his submission:
(i) Gauhati High Court M.A.(F) No. 1(K) of 2009
(ii) (2013) 4 GLT 1109
(iii) AIR 1976 Calcutta 341, Para-14
(iv) (2014) 8 SCC 425
Page 8 of 13
Civil Revision Petition No. 9(K) of 2011
(v) (2003) 6 SCC 675, para- 34 iv and v
7. The learned counsel also submitted that the trial court and the Addl. District Judge had strictly followed the procedure, therefore, there is no reason to interfere in the order passed by them. The learned counsel cited the judgment of the Hon'ble Supreme Court in the case of Shankar Lal and Another -versus- Sakil Ahmed and Others reported in (2001) 9 SCC 342, paragraph-5 in support of his submission.
8. I have gone through the judgments submitted by both the learned counsels and also considered their submissions in the light of the facts and circumstances of the case and the provisions of Rule 1 and 2 of Order XXII of CPC. The contains of the CPC are reproduced here below:-
"1. No abatement by party's death, if right to sue survives.- The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.- Where there are more plaintiffs or defendants than one, .and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants".
9. In the original suit there were two defendants, and though the defendant No.1 had died, the defendant No.2 i.e. the respondent No.2 in this case is still alive. The suit is for declaration of title over the suit land which the plaintiffs i.e. the petitioners in this case claims to be theirs but had allegedly been sold by the defendant No.1 without any title or ownership to defendant No.2. Under such facts and circumstances one cannot conclude that cause of action no longer survives. Because, the suit can still be maintained against the defendant No.2 i.e. the respondent No.2 as he is the buyer of the suit land. In the facts and circumstances of the case, the provisions of Rule-2 of Order XXII of CPC is squarely applicable.
Besides, in catena of cases the Hon'ble Supreme Court had ruled that Courts should be oriented to see that technical rules and procedures are not given precedence over substantial justice. Therefore, aim of the courts at all times should be to render substantial justice and the procedural law which is only handmade of justice should not be given precedence over it.
Page 9 of 13Civil Revision Petition No. 9(K) of 2011 In the case of Bhagwan Swaroop and Others -Versus- Mool Chand and Others reported in (1983) 2 SCC 132 the Apex Court had stated as follows :-
"4. It is true that it was incumbent upon the appellant to implead the heirs and legal representatives of deceased respondent No. 1 in time. It is equally true that the appellants were negligent in moving the proper application. We would not question the finding of the High Court that appellant Nos. 2, 3 and 4 knew about the death of the deceased respondent No. 1. This being a suit for partition of joint family property, parties are closely interrelated and it is reasonable to believe that at least some of the appellants must have attended the funeral of deceased respondent No. 1, as contended on behalf of the contesting respondent No. 2. There is some force in the contention that when a specific provision is made as provided in Order 22, R. 4, a resort to the general provision like Order 1, Rule 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram Singh v. Election Tribunal, Kotah , this Court observed that a Code of Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in Kalipar Das v. Bimal Krishna Sen.
5. In a suit for partition, the position of plaintiffs and defendants can be interchange-' able. It is that each adopts the same position with the other parties. Other features which must be noticed are that the appeal was filed somewhere in 1972. It had not come up for hearing and the matter came on Board only upon the application of the second respondent intimating to the Court that the 1st respondent had died way back and as his heirs and legal representatives having not been substituted, the appeal has abated. Wheels started moving thereafter. Appellants moved an application for substitution. The matter did not end there. Heirs of deceased respondent No. 1 then moved an application for being brought on record. If the application bad been granted, the appeal could have been disposed of in the presence of all the parties. The difficulty High Court experienced in granting the application disclosed with great respect, a hyper- technical approach which if carried to end may result in miscarriage of justice. Who could have made the most serious grievance about the failure of the appellants to substitute the heirs and legal representatives of deceased respondent No. 1. Obviously the heirs of deceased respondent No. 1 were the persons vitally interested in the outcome of the appeal. They could have contended that the appeal against them has abated and their share has become unassailable. That is not their case. They on the contrary, want to be impleaded and substituted as heirs and legal representatives of deceased respondent No. 1. They had absolutely no grievance about the delay in bringing them on record. It is the second respondent who is fighting both the appellants and the 1st respondent who wants to derive a technical advantage by this procedural lapse. If the trend is to encourage fair play in action in administrative law, it must all the Page 10 of 13 Civil Revision Petition No. 9(K) of 2011 more inhere in judicial approach. Such applications have to be approached with this view whether sub-. substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice.
12. It is no doubt true that a Code of Procedure 'is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up'. Procedural laws are no doubt devised and enacted for the purposes of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of 'confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the Court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is, however, always to be borne in mind that procedural laws' are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court Justice means justice to the parties in any particular case and justice according to law. If procedural laws are properly observed, as they should be observed, no problem arises for the Court for considering whether any lapse in the observance of the procedural law needs to be excused or overlooked. As I have already observed depending on the facts and circumstances of a particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best.
13. Excuse of lapses in compliance with the laws of procedure, as a matter of course, with the avowed object of doing substantial justice to the parties may in many many cases lead to miscarriage of justice.
14. Civil Procedure Code requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a particular period, provided the cause of action survives. If the legal representatives are not brought on record within the stipulated period, certain consequences follow and the action abates either wholly or partially depending on the facts and circumstances of a particular case. The Code further provides that an application may be made for setting aside the abatement within a stipulated period. It is now well settled that an abatement can be set aside at any Page 11 of 13 Civil Revision Petition No. 9(K) of 2011 time even beyond the period prescribed for making an application for setting aside the abatement, if sufficient cause is shown explaining the delay in the making of the application. If, irrespective of the provisions of the Code and the merits of the case, abatements are to be set aside as a matter of course merely on the ground that abatement is only a consequence of non-compliance of law of procedure and substantial justice is denied to the parties, the result may really amount to a denial of justice and in an indefinite prolongation of a litigation."
10. From the pronouncement of the Hon'ble Supreme Court as given above, it is clear that court's endeavor at all times should be to see that substantial justice is delivered and in doing so procedural law should not be given precedence over it.
11. The orders of both the courts of learned Civil Judge (Senior Division), Dimapur and the learned Addl. District Judge, Dimapur which are impugned here in gives one the impression that they have given more importance on strict adherence of technicalities of the procedural laws rather than the delivery of substantial justice in the case.
12. In view of the above, I am of the opinion that in the interest of justice, the petitioners should be allowed to bring in the legal heirs of the defendant No.1 and thereafter the trial of the suit should continue so that substantial justice gets delivered in the case. Accordingly, the impugned orders, dated 16.12.2008, passed by the learned Civil Judge (Senior) Division, Dimapur, in Civil Suit No. 12/2002, and dated 16.06.2011 passed in Civil Appeal No. 3/2009 by the learned Addl. District Judge, Dimapur, are quashed and set aside.
The learned Civil Judge (Senior Division), Dimapur is accordingly, directed to restore the suit in file and allow the petitioners to substitute the original defendant No.1 by his legal heir or heirs and proceed with the trial. Keeping in view the long delay caused by the petitioners, they are directed to compensate the same by paying a sum of Rs. 20,000/- to the respondent/defendant No.2.
The Civil Revision petition is disposed.
JUDGE Kevi Page 12 of 13