Patna High Court
Minati Dutta And Ors. vs Sushil Choudhary on 19 May, 2005
Equivalent citations: AIR2006PAT62, 2005(3)BLJR1763
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. Heard Mr. Amrendra Narayan for the appellants and Mr. Durga Nand Jha for the respondents. This appeal is directed against the order dated 14.10.1999, passed by the learned 4th Additional District Judge, Darbhanga, in Eviction Appeal No. 3 of 1993/4 of 1999 (Ranen Dutta v. Sushil Choudhary), whereby the appeal has been held to have abated on account of non-substitution of the heirs of the appellants before him.
2. This litigation has a chequered history. Appellant No. 1 herein is the wife of the late Ranen Dutta, and appellant Nos. 2 to 8 are their sons and daughters. In other words, they claim to be the heirs and legal representatives of the deceased. One Satindra Natha Majumdar had alienated the suit property by a deed of absolute sale registered on 12.3.1981 in favour of the respondent Suhsil Choudhary. The said Ranen Dutta was a tenant in the suit property from before. Thereafter Ranen Dutta filed Title Suit No. 67 of 1981 for specific performance of contract against Satindra Nath Majumdar before the learned Sub-ordinate Judge at Darbhanga. The present respondent was a party to the suit. According to the plaint, Ranen Dutta pleaded that Satendra Nath Majumdar had agreed to alienate the suit property absolutely in favour of the plaintiff and for which a sum of Rs. 10,000/- (Ten thousand) had already been handed over towards part payment of the consideration money. No prayer had been made for setting aside the registered deed of absolute sale in favour of Sushil Choudhary. During the pendency of the said suit, Sushil Choudhary instituted Money Suit No. 25 of 1982 for recovery of the consideration money, which was dismissed by the judgment dated 16.3.1989 and became final. The said Title Suit No. 67 of 1981 has been dismissed by judgment and decree dated 10.7.2002, and the heirs of Ranen Dutta have preferred Title Appeal No. 23 of 2002 in the Court of learned District Judge, Darbhanga. In the meanwhile, Sushil Choudhary instituted Eviction Suit No. 26 of 1989 for eviction of Ranen Dutta from the suit property. The suit was decreed by judgment dated 30.3.1993, whereafter Ranen Dutta filed Eviction Appeal No. 3 of 1993 before the learned District Judge, Darbhanga. During the pendency of the appeal, Ranen Dutta died on 30.6.1998. It is relevant to state that Title Suit No. 67 of 1981 and Title Appeal No. 3 of 1993, both at the instance of Ranen Dutta, were pending. The heirs of Ranen Dutta took steps for substitution of the heirs in Title Suit No. 67 of 1981 which was allowed, the name of the deceased was expunged and his heirs were substituted. No such step was taken in Eviction Appeal No. 3 of 1993, Five of the eight heirs of Ranen Dutta ultimately filed an application under Order I, Rule 10 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') on 5.5.1999 in Eviction Appeal No. 3 of 1993, which has been rejected by the impugned order, inter alia, on the ground that, in the facts and circumstances of the case, the application under Order I, Rule 10, CPC was not maintainable. It has, therefore, been held that Eviction Appeal No. 3 of 1993 had abated on account of non-substitution of the heirs. Hence this appeal at the instance of the heirs of Ranen Dutta.
3. While assailing the validity of the impugned order, learned counsel for the appellants, who are the heirs of Late Ranen Dutta, submits that procedure is the hand-maid of justice and its rigors cannot be allowed to defeat the cause of justice. He relies on the following judgments of the Calcutta High Court:
(i) 55 Calcutta Weekly Notes 402 (Associated Bank of Tripura v. Bishnu Pada Chakravarty).
(ii) Bhagwan Swaroop and Ors. v. Mool Chand and Ors.
3.1. He next submits that the inadvertent mistake on the part of the heirs in filing the application under Order 1, Rule 10(2), CPC should have been taken sympathetically, adopting a liberal approach. In his submission, the learned Court of appeal below ought to have examined whether or not the delay in filing the application had been really explained. He relies on the following reported judgments.
(i) , Jogdarshan and Ors. v. Leela Devi and Ors.
(ii) , Gadachandi Thakurani and Ors. v. Udi Bank and Ors.
3.2. He next submits that the first appeal is a matter of right and is a Court of facts. He next submits that the pendente-lite development should now be taken into consideration, namely, the appellant's parallel appeal in Title Appeal No. 23 of 2002, is now pending before the learned District Judge, Darbhanga.
4. Learned counsel for the respondent has supported the impugned order. He submits that law is well settled that applicability of general provisions of law, in the presence of specific provisions is completely obviated. He relies on the judgments reported in (2003) 2 BLJR 1278, Ramashray Mahto and Ors. v. Amiri Mahto and Anr., and AIR 1999 Kerala 359, State of Kerala v. Ramchandran Pilial He next submits that the proposed heirs cannot get benefit of their negligence. He relies on the judgment Rameshwar Prasad and Ors. v. Shambehari Lal Jagannath and Anr. He next submits that exemption cannot be granted when the factum of death was known to the proposed heirs, and substitution had been brdught about by the same heirs in another proceeding. He relies on the judgment , Corporation of Calcutta v. Himansu Sekhar Basu and Ors. He next submits that a detailed procedure has been prescribed in the Code of Civil Procedure, read with the relevant provisions of the Limitation Act, regarding substitution and setting aside abatement. He relies on the judgment , Zilla Singh and Anr. v. Chandgi and Ors. He further submits that in the present case, the provisions of Order I, Rule 10, CPC cannot come to the aid of the proposed heirs. A thing which cannot be done directly cannot be permitted to be done indirectly. He relies on the judgment of the Bombay High Court reported in 2000 (1) CCC 80 Bombay, Jay Laxmi Janarda.
5. I have perused the materials on record and considered the submissions of learned counsel for the parties. Order XXII of CPC has the heading 'Death, Marriage and Insolvency of Parties', and provides for substitution of heirs in the event of death of one or the other party. Article 120 of the Schedule to the Limitation Act provides that the legal representatives of a deceased plaintiff or appellant or of deceased respondent may be made parties within ninety days of the death of the concerned party. Article 121 of the Limitation Act provides that the concerned party should take steps to set aside the abatement within sixty days of the date of abatement. It is thus manifest that if steps are not taken within ninety days of the date of death, then the suit or the appeal abates. The law takes a lenient view of the matter at this stage and, in view of the provisions of Article 121, a further period of sixty days has been provided to take steps to set aside the abatement. In case steps are not taken within a period of ninety days plus sixty days, then the situation becomes all the more difficult for the concerned party, whereafter an application under Section 5 of the Limitation Act will have to be filed, making out a case of sufficient cause as to what prevented the plaintiff or the appellant from taking steps for substitution and setting aside abatement. The substance of these provisions is that steps for substitution have to be taken within the time prescribed by law, failing which abatement of the proceedings takes place by operation of law, whereafter onus becomes fairly heavy on the plaintiff or the appellant to make out a case for condonation of delay. I must state at this stage that the trend of judgments of the Supreme Court is to take a lenient view while considering the appellant's case for condonation of delay. The proposition advanced on behalf of the appellants to the effect that procedure is the hand-maid of justice, its rigors should not be allowed to come in the way of justice, and effort should be made to have the matters disposed of on merits, is a time-tested and hallowed principle of law, but the mandate of legislations must also be respected. It is not given to Courts to nullify the intention of the legislature in its interpretative approach, lest it will expose itself to the criticism of "...naked usurpation of legislative functions in the thin guise of judicial interpretation...."
6. I have given thoughtful consideration to the whole matter and I find that the most lenient approach cannot help the appellants. I find no justification for the application on their behalf under the provisions of Order I, Rule 10, CPC. Law is settled by a long line of cases that applicability of the general provisions of law is completely excluded if the statute provides specific provisions of law. In view of the death of Ranen Dutta, his proposed heirs ought to have filed an application under Order XXII, CPC. Not having done so, they cannot be permitted to file an application under Order I, Rule 10, CPC. Such application was in fact not maintainable in the facts and circumstances of the case. There is another aspect of the matter. Order I, Rule 10, CPC does not need the aid of the provisions of Section 5 of the Limitation Act, whereas an application under Order XXII does. Therefore, if I am permitted to say so, the proposed heirs (the appellants herein), by their application under Order I, Rule 10, CPC, contrived to circumvent the provisions of Section 22, CPC as well- as Section 5 of the Limitation Act which cannot be permitted. As stated hereinabove, after the death of Ranen Dutta, steps were not taken within the time prescribed by law to take steps for substitution under the provisions of Order XXII, CPC. No application under Section 5 of the Limitation Act was brought on record explaining the delay.
7. Learned counsel for the respondents is further right in his submission that the proposed heirs were, if I can use this expression in the present context, in the shoes of a prosecutor. Steps were taken for substitution of the heirs of Ranen Dutta in Title Suit No. 67 of 1981 under the provisions of Order XXII, CPC, no such step for substitution was taken in the appeal giving rise to present proceeding. Learned counsel for the respondent has, therefore, rightly relied on the judgment of the Calcutta High Court in Corporation of Calcutta, (supra), paragraphs 6 and 8 of which are relevant in the present context and are set out hereinbelow for the facility of quick reference.
6. Under Sub-rule (4) of Rule 4 of Order XXII, no doubt, discretion has been given to the Court exempting the plaintiff from the necessity of substituting the legal representatives of a defendant but where the plaintiff was aware of the death of the defendant and also took steps for substitution in another suit instituted in this Court, there is no reason why discretion should be exercised in such a case in favour of the plaintiff exempting the plaintiff from the necessity of substituting the legal representatives of such a defendant being defendant 2. Moreover, the plaintiff has sought to claim on the basis of the bills apportioned in the name of defendant 2, who had died and it was the duty of the plaintiff to make necessary substitution. This provision cannot, in my opinion, override the other relevant provisions of the Act requiring substitution and the abatement of the suit in case such substitution is not made within the time prescribed under the law.
8. In this case, no application has been made for exemption. Furthermore, no grounds have been made out why the Court should, in a case like this, exempt the plaintiff from substituting the legal representatives when the plaintiff had full knowledge that the defendant 2 has died long ago and when, as a matter of fact, an application was made in another suit. Having regard to the facts and circumstances of this case, I am unable to accept the contention of Mr. Kar that the Court should exercise its discretion under the provisions of Sub-rule (4) of Rule 4 of Order XXII should apply.
(Emphasis added)
8. Such state of affairs obviously leads to the conclusion of negligence on the part of the proposed heirs in refusing to take steps for substitution in the appeal in question. Allowing this appeal will result in nullifying the effect of abatement in favour of the respondents, as if Order XXII, CPC is on the statute book only for the benefit of the appellants, which would never have been the intention of the Legislature. Learned counsel for the respondents has rightly placed reliance on the judgment of the Supreme Court in Rameshwar Prasad (supra), paragraph 18 . of which is relevant and is set out hereinbelow for the facility of quick reference.
18. When the legal representative of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact, such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This should always be avoided.
(Emphasis added)
9. In the result, this appeal is dismissed. There shall, however, be no order as to costs. Before I part with the records, I must record my appreciation of the thorough and meticulous arguments advanced by learned counsel for both sides.