Delhi District Court
Shri Ashok Kumar vs Shri Anil Aggarwal & 2 Others on 6 August, 2011
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE12 (CENTRAL)
TIS HAZARI COURTS, DELHI.
In the matter of:
Suit No. 114/2009
Shri Ashok Kumar ...Plaintiff
Versus
Shri Anil Aggarwal & 2 Others ...Defendants
&
Suit No. 118/2009
Smt. Santosh Aggarwal & Another ...Plaintiffs
Versus
Shri Om Parkash Dharam Kanta & 5 Others ...Defendants
ORDER
This order disposes two applications filed in two different but connected suits. These applications are being disposed of by a single order on account of common questions of law and facts involved.
2. The applications have been authored by Shri Ashok Kumar (hereinafter called the applicant). He is the plaintiff in suit no. 114/2009 (titled Ashok Kumar vs. Anil Aggarwal & 2 Others). He is Suit no. 114/09 and 118/09 Page1 of 28 defendant no. 6 in suit no. 118/2009 (titled Santosh Aggarwal & Another vs. Om Parkash Dharam Kanta & 5 Others).
3. The subject matter of these applications pertain to the impleadment of the Legal Representatives of the deceased party, Smt. Santosh Aggarwal, who breathed her last on 08.10.2008. SUBJECT MATTER OF SUIT NO. 114/2009 & THE SCOPE OF THE APPLICATION IN QUESTION
4. This is a suit for Declaration and consequential relief of Injunction. The relief claimed by the applicant is for declaring that the decree dated 20.09.2001 passed by the Court of Shri A. K. Garg, ld. ADJ, Delhi in suit no. 161/2001 is a nullity, illegal, ineffective and fraudulent and for consequential relief of injunction. In the said decree the final decree of partition was passed between Shri Anil Aggarwal and Smt. Santosh Aggarwal in respect of suit property bearing no. 1A, Shahjada Bagh Extension, Delhi.
5. In this suit the plaintiff has filed an application U/o 22 Rule 4 Code of Civil Procedure to bring the legal heirs of deceased defendant no. 3 namely Smt. Santosh Aggarwal on record. The application is accompanied with an application for condonation of Suit no. 114/09 and 118/09 Page2 of 28 delay filed under section 5 of the Limitation Act. SUBJECT MATTER OF SUIT NO. 118/2009 & THE SCOPE OF THE APPLICATION IN QUESTION
6. This is a suit for possession, recovery of rent, damages and permanent injunction. It has been filed by two plaintiffs namely Sh. Santosh Aggarwal and Sh. Anil Aggarwal in respect of suit property bearing no. 1A, Shahjada Bagh Extension, Delhi.
7. Vide order dated 27.01.2010 passed in the above suit, my Ld. Predecessor allowed the application of plaintiffs for bringing the LRs of deceased plaintiff no. 1 on record. The instant application, filed on 30.03.2010, without mentioning any provision of law, by the applicant is directed against the said order dated 27.01.2010 and seeks the recall of the said order.
8. Arguments on these applications were addressed at length by Shri Lalit Kumar and Shri Deepak Vohra, Ld. Counsels for the applicant. Shri P. K. Rawal and Shri Harish Kumar, Ld. Counsels for the contesting nonapplicant vehemently opposed the application.
9. In brief, the application pleads that the cause of grievance of the applicant is that he did not receive any notice of the death of Suit no. 114/09 and 118/09 Page3 of 28 plaintiff no. 1 and he was not heard on the application U/o 22 Rule 3 CPC before it was allowed by the Court vide order dated 27.01.2010 passed in the suit no. 118/2009. It has been submitted by the applicant urged that the minutes of proceedings dated 22.07.09 reflect that the captioned application (U/o 22 Rule 3 CPC) was not traceable on record. On the next date the application which was pointed out on record bears the endorsement of the Reader (which reads as "Ld. P. O. has been transferred to NDMC on deputation. Put up with the file on the date fixed sd/ 3/1/09 Reader") and is not endorsed by the Judge/Presiding Officer of the Court and merely received by the Reader of the Court. It bears no stamp of filing on its back. The Ld. Counsel for the plaintiff was duty bound under Rule 10 A of Order 22 C.P.C. to inform the Court about the death of deceased plaintiff no. 1 and the applicant was entitled to receive the notice of the same. The addresses of some of the LRs show inherent contradictions.
10. In the reply, the contesting nonapplicants have vehemently opposed and denied the averments of the application. They have present into service elucidatory facts primarily that the application is not maintainable; it is time barred; an abuse of the process of law; based on falsehood and concealment of facts; the Suit no. 114/09 and 118/09 Page4 of 28 applicant had the knowledge of the death of Smt. Santosh Aggarwal; the applicant has failed to make any case for the relief claimed; there has been no violation of the rules or procedures in passing the order of implement; the right to sue survives and the applicant has also failed to show how he has been prejudiced. All the material averments on merits have been denied verbatim.
11. In the application U/O 22 Rule 4 CPC filed on 30.03.2010 in suit no. 114/2009 the case as put forth by the applicant in his application is that it was for the first time, on 27.01.2010, that the Ld. Counsel for defendant no.3 intimated to the Court that she had expired on 08.10.2008; in another suit bearing no. 118/09, the applicant recently received a copy of amended memo of parties. Parties in this suit are also parties in another suit stated above. The right to sue survives even after the death of the deceased defendant no. 3 and it is necessary to implead the LRs. The names of LRs have been stated in para 5 of the affidavit. This application is accompanied with an application U/s 5 of the Limitation Act for condonation of delay in the institution of above application. The facts stated in both the applications parimateria except the reference to proceeding dated 27.01.2010 in suit no. 118/09 and what transpired in the said suit. The Suit no. 114/09 and 118/09 Page5 of 28 plaintiff states that to his utter surprise, an application U/o 22 Rule 3 CPC was allowed by the Court in suit no. 118/09.
12. The plaintiff (defendant no. 6 in suit no. 118/09) did not receive any notice of the death of defendant no. 3 and he was not heard on the application U/O 22 Rule 3 CPC. The application filed in the Court is not endorsed by the Presiding Officer of the Court and merely received by the Reader of the Court. It bears no stamp of filing on its back. The Ld. Counsel for the defendant no. 3, was duty bound under rule 10 A of order 22 CPC to inform the Court about the death of deceased defendant no. 3. It is submitted that the delay in filing the application has occasion only on account of the aforesaid reason and is not intentional or deliberate.
13. The aforesaid set of applications has been vehemently opposed. The facts as pressed into service by the applicant have been denied. Explanatory facts have been pressed into service. Various proceedings of Court in both the suits have been referred to show that the plaintiff was in the knowledge of death of defendant no. 3 from the record. It is also stated that on account of close relations and living in the same property, the plaintiff can not take the plea of not having knowledge of death of Smt. Santosh Aggarwal. It is pleaded that the Suit no. 114/09 and 118/09 Page6 of 28 suit has abated on account of death and as the cause of action is so interwined that it can not be segregated thus the suit abates/fails against all the defendants.
14. Shri Lalit Kumar, Ld. Counsel argued on behalf of the applicant that the things have been manipulated by the nonapplicants to escape the rigors of law as before the filing the application, the suit visavis the deceased plaintiff no. 1 had already been abated and in order to come over the embargo, the application has been clandestinely placed on record. It is also submitted that the factum of death of the deceased was deliberately kept concealed to defeat the rights of the applicant.
15. Ld. Counsel for the applicant submits that the ministerial staff of the Court has no jurisdiction to pass any effective order and therefore, the Reader of the Court could not have taken the delivery of the application. He relied upon Roshan Engineering Works Vs. Rajender Parsa 2006 (8) AD (Delhi) 337 on this aspect and relied upon the law laid down that a ministerial officer of the Court can not pass any order which may tantamount to usurping the functions of Presiding Officer and all such proceedings are void.
16. It is submitted that the totality of the facts speaks for itself Suit no. 114/09 and 118/09 Page7 of 28 that there is something more than what meet the eyes. Ld. Counsel has relied upon the minutes of proceeding dated 26.03.09, 22.07.09 and 27.01.2010 in suit no. 118/2009 to show that no such application U/o 22 Rule 3 C.P.C. was on record. It is argued that a fraud has been committed and that the order impugned is liable to be recalled. Shri Lalit Kumar further argued that the contesting nonapplicant has stated that it has given a copy of the application under Order 22 Rule 3 CPC to the applicant but it was not recorded on the proceedings is false perse. No evidence contrary to what has been recorded in judicial proceedings can be given. Reliance has been placed upon law declared in case titled as Bhagwan Mahaveer Educational Society (Regd.) and Ors. Vs. Mr. Rajesh Jindal and Ors. 2011 (122) DRJ 513 wherein it has been held that "the Judges' records are conclusive. Neither lawyer nor litigant may claim to contradict it. The Court is bound to accept the statement of Judges recorded in their judgment as to what transpired in Court. It can not allow the statements of the judges to be contradicted the statements at bar or by affidavit and other evidence........... if a party thinks that happening in Courts have been recorded in judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges to call attention of the Suit no. 114/09 and 118/09 Page8 of 28 very judges who have made the record to the fact that the statement with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected"
17. While arguing on behalf of contesting nonapplicants Ld. Counsel Shri P. K. Rawal, has submitted that the duty of a party ends with the filing of an application in the Court and it can not dictate the Court staff as to how he should deal with the application. Once the application is filed, it is beyond the control of the applicant if the filing stamp is not affixed at the back of the application or other relevant functions are not performed. It is also submitted that there was no occasion to file the application with the Ld. District Judge. The same would have been done in the eventuality if the Reader of the Court had refused to receive the application. It is argued that acts of Court prejudice no man and reliance has been placed upon Manisha Trading Pvt. Limited vs. State & Others 91(2001) DLT 541 wherein the Hon'ble High Court of Delhi has deprecated the practice of the subordinate courts of passing miscellaneous orders on the applications and practice directions have been passed that such orders should be passed on the order sheets for better administration/record of court proceedings.
Suit no. 114/09 and 118/09 Page9 of 28
18. In their arguments, the contesting nonapplicants have taken an objection as to the maintainability of the application. It is submitted that the application has been filed without mentioning any provision of CPC. It is in fact, in its sum and substance, an application for review U/o 47 CPC. He relied upon case P.U.R. Polyurethane Products (p) Ltd. Vs. Geeta Bhargava and others 133 (2006), DLT 58 (DB) wherein it has been held that application designed as for recall is infact an application for review and that there is no provision for 'recall' of the order in CPC.
19. It has been argued that the limitation provided for filing a review application is 30 days from the date of the order. Reliance has been placed on case law titled as Municipal Corporation of Delhi Vs. Bhasin Associates Ltd. 2009 VII AD (Delhi) 33 wherein it has been held that review must be filed within 30 days of the passing of order in question. It is thus submitted that the order which is challenged is of 27.01.2010 and the application filed on 30.03.2011, is clearly beyond the limitation period prescribed.
20. It is also argued that the applicant has failed to show any ground of review or error apparent on the face of the record. The applicant has also failed to show how he has been prejudiced by the Suit no. 114/09 and 118/09 Page10 of 28 order dated 27.01.2010.
21. Next the argument pressed into service by the contesting nonapplicants is that even if the suit abates visavis the deceased plaintiff no. 1, the surviving plaintiff can very well proceed as the plaintiff no. 2, being a coowner, can maintain the suit in his own right independently notwithstanding the death of plaintiff no. 1 in suit no. 118/2009.
21. It is also urged by the contesting nonapplicants that various minutes of proceeding cited by the defendant no. 6 speak for itself that the plaintiff mentioned his application U/s 22 Rule 3 CPC from the very first date when the parties appeared before the transferee Court on 22.07.09. The case was received by transfer to this Court on 26.03.09 on which date none was present. The transfer of the case was pursuant to a general order dated 03.01.08.
22. In rebuttal, Shri Lalit Kumar, ld counsel for the applicant submitted that whether the right to sue survives or not can not be agitated or heard in the absence of all the defendants, including the applicant (defendant no. 6) and therefore the order passed in suit no. 118/2009 is not valid and cannot stand the scrutiny of law.
23. While arguing on the other set of application in suit no.
Suit no. 114/09 and 118/09 Page11 of 28 114/2009 for impleadment of LRs of the deceased defendant Smt. Santosh Aggarwal and for condonation of delay, Ld. Counsel for the applicant, Shri Lalit Kumar, has argued that the limitation for filing application for impleadment commences from date of knowledge and not from date of death and that it is obligatory on the part of defendant's counsel to inform the Court about the death of dependent and notice to be given to plaintiff. To support his argument he has relied upon case law reported as Arun Kumar Aggarwal and Anr. Vs. Sudarshan Wadia and Ors. MANU/DE/2678/2011. In the similar vein reliance has been placed upon Mithailal Dalsangar Singh Vs. Annabai Devram Kini AIR 2003 SC 4244 wherein it has been held that prayer for setting aside abatement has to be considered liberally and Court has to adopt a justiceoriented approach by the consideration that a litigant ought not be deprived the opportunity of having a lis determined on merit unless there is gross negligence or deliberate inaction. Another case law reported in case titled as Ram Rattan Singh Namdhari Vs. Inder Kaur 2010 (175) DLT 577 has been relied upon on the same aspect.
24. It is also argued on behalf of the applicant that his right to sue survives even if the case has abated against the deceased Suit no. 114/09 and 118/09 Page12 of 28 defendant as there is a distinct cause of action and that the suit can very well proceed. On this aspect reliance has been placed upon case titled as Shahzada Bi vs. Halimbai AIR 2004 SC 3942 wherein it has been held that if the interest of codefendants are separate, as in case of coowners, suit will abate only as regards interest of deceased.
25. On this set of application, Shri P. K. Rawal, Ld. Counsel for the contesting nonapplicants has argued that abatement takes place on its own force by passage of time and case law titled as Madan Naik (dead by LRs) and others Vs. Mst. Hansubala Devi and others AIR 1983 SC 676 has been relied upon. Further reliance has been placed upon law reported in Budh Ram and others Vs. Bansi & Ors. 2010 VIII AD (S.C.) 545 wherein it has been held that abatement takes place automatically by application of law and that it is a question of fact whether abatement against one of the defendants would operate as abatement of entire suit and the test is whether decree which would be passed could be contradictory to decree which has become final in view of abatement. It has also been relied upon on the aspect that the Court should apply the test that inconsistent or contradictory decrees should not result.
26. In the sequel another case law relied upon is the one Suit no. 114/09 and 118/09 Page13 of 28 reported as State of Haryana and others Vs. Gurcharan Singh and Others 2004 (12) SCC 540 wherein it has been held that the question of abatement depends on facts and circumstances of each case, the nature of the right asserted and the relief which had been sought. It was held that if the claims were different and distinct even though they may be sought to be vindicated in one proceeding then the appeal would not abate as a whole. Thus facts and circumstances of each case have to be looked. It is submitted that as the suit has abated visà vis Smt. Santosh Aggarwal, therefore the decree has attained finality. If the suit is allowed to proceed against other defendants it may invite the mischief of two contradictory decrees. Therefore the suit has abated as a whole.
27. It has been argued that the Court has no inherent power to implead the legal representatives, until and unless, the applicant satisfies the Court that it has sufficient cause for failure to implead the LRs. On this aspect the contesting nonapplicants have relied upon case titled as Union of India Vs. Ram Charan (deceased) AIR 1964 SC 215. It is also argued that the limitation starts from the date of death and not from the date of knowledge for which reliance has been placed upon case reported as Sardar Begum vs. Ajit Kumar 1979 (1) Suit no. 114/09 and 118/09 Page14 of 28 RCR 76.
28. It has next been argued that the applicant cannot derive any mileage out of nonintimation of death by the counsel of the deceased and the reliance on Order 22 Rule 10A CPC is misplaced and in wrong perspective. It is also argued that the provision is only directory and not mandatory. Reliance has been placed upon the reported case titled as Katari Suryanarayana & Ors. Vs. Koppisetti Subba Rao & Ors. AIR 2009 SC 2907 wherein it has been held that the provision of Order 22 Rule 10A CPC does not provide for any consequence for non compliance and that it does not take away duty of the plaintiff and he can not claim ignorance. In the similar vein the case law reported in Braja Behera and others Vs. Gandaram Behera and others AIR 1990 Orissa 94 has been cited wherein it has been held that the provision of order 22 Rule 10A CPC does not provide for any penalty for non compliance; it is directory and not mandatory and that it does not absolve the plaintiff from the duty cast upon him.
29. While refuting the argument of the applicant that a liberal approach should be adopted while considering an application for impleadment of LRs and condonation of delay the contesting non Suit no. 114/09 and 118/09 Page15 of 28 applicants have relied upon the law laid down in Balwant Singh (Dead) V. Jagdish Singh & Others AIR 2010 SC 3043 wherein it has been held that the term 'liberal approach' for condonation of delay does not mean injustice to the other party.
30. Another limb of the argument of the contesting non applicants is that the applicant has failed to file any rejoinder or replication to the replies of the contesting nonapplicants therefore as a logical corollary the averments of replies being not controverted are deemed to have been admitted. Case law relied upon is titled as Moti Ram vs. Baldev Krishan 1979 (15) DLT 90; M.L. Gupta Vs. Kripal Singh and Anr. 98 (2002) DLT 683 and Shri Mohd. Shafi Bakshi Vs. Smt. Krishna Bansal 1993 (27) DRJ 124 to bring home the point that replication forms part of the pleadings.
31. In rebuttal, the applicant has controverted the arguments of the contesting nonapplicants on this set of applications.
32. No other point was argued or urged by either of the parties.
33. I have considered the rival submissions of the parties, the case law cited and the material on record.
34. For a meaningful understanding of the issues involved in Suit no. 114/09 and 118/09 Page16 of 28 the applications under consideration it would be fruitful to reproduce the provisions of Order 22 as under:
ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OR PARTIES 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 de fendant or defendants alone, the Court shall cause an entry to the ef fect to be made on the record, and the suit shall proceed at the in stance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
3 . Procedure in case of death of one of several plaintiffs or of sole plaintiff-- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under subrule (1), the suit shall abate so far as the deceased plaintiff is con cerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. 4 . Procedure in case of death of one of several defendants or of sole defendant-- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defen dants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that be half, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
Suit no. 114/09 and 118/09 Page17 of 28 (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under subrule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such de fendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judg ment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) Where--
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the le gal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abate ment and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, suffi cient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved. 4A . Procedure where there is no legal representative-- (1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order ap point the AdministratorGeneral, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased per son for the purpose of the suit; and any judgment or order subsequent ly given or made in the suit shall bind the estate of the deceased per Suit no. 114/09 and 118/09 Page18 of 28 son to the same extent as he would have been bound if a personal rep resentative of the deceased person had been a party to the suit. (2) Before making an order under this rule, the Court--
(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the de ceased person as it thinks fit; and
(b) shall ascertain that the person proposed to be appointed to repre sent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.] 5 . Determination of question as to legal representative-- Where a question arises as to whether any person is or is not the legal represen tative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:
Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records togeth er with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into considera tion in determining the question.
6 . No abatement by reason of death after hearing-- Nothwithstand ing anything contained in the foregoing rules, whether the cause of ac tion survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pro nouncing of the judgment, but judgment may in such case be pro nounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. 7 . Suit not abated by marriage of female party-- (1) The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with to judgment, and, where the decree is against a female defendant, it may be executed against her alone.
(2) Where the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of Suit no. 114/09 and 118/09 Page19 of 28 the husband, where the husband is by law entitled to the subject matter of the decree.
8 . When plaintiffs insolvency bars suit-- (1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct. (2) Procedure where assignee fails to continue suit, or give security-- Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has insured in defending the same to be proved as a debt against the plaintiff's estate. 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, 1877 (15 of 1877)] shall apply to applications under subrule (2). Explanation--Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order] 10 . Procedure in case of assignment before final order in suit-- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be contin ued by or against the person to or upon whom such interest has come or devolved.
Suit no. 114/09 and 118/09 Page20 of 28 (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such at tachment to the benefit of subrule (1).
10A . Duty or pleader to communicate to Court death of a party
-- Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the de ceased party shall be deemed to subsist.
11 . Application of Order to appeals-- In the application of this Or der to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal.
12 . Application of Order to proceedings-- Nothing in rules 3, 4 and 8 shall apply to proceedings in executive of a decree or order.
35. A meaningful reading of the statutory provisions coupled with judicial precedents clearly establishes that abatement of suit is not dependent upon the acts of the parties. It crystallizes with operation of law on account of efflux of time. The starting point of limitation for the same is on the day of death of the party to the suit and in case the LRs are not impleaded on record the abatement takes place on the expiry of ninety days from the date of death. The abatement is automatic due to passage of time and no specific order is required to be passed by the Court declaring the abatement. Once the suit has abated, the only remedy is to seek setting aside of abatement. Once the suit abates the filing of an application for seeking Suit no. 114/09 and 118/09 Page21 of 28 impleadment of LRs becomes redundant and the proper course is to approach the Court for setting aside of the abatement, pressing into service such grounds as may be available to the applicant under the law.
36. Another relevant aspect which is apparent is that abatement is independent of the knowledge of death. Not having the knowledge of death to the person who has to bring the LRs of defendant on record does not in any way stop or impede the process of abatement. However, the lack of knowledge may be a relevant consideration for setting aside the abatement as well as for condonation of delay.
37. Legal position that emerges is that an application for condonation of delay or setting aside of abatement must be construed 'liberally' to advance the cause of justice and to prevent the mischief. However, the caveat here is that the rights of both the sides must be balanced and justice to one party should not perpetuate injustice to the other side. With due respect, this appears to me to be the underlying objective of various judicial pronouncements relied upon by the parties. How the rival facts and considerations have to be dealt with cannot be put in a straitjacket formula and each case has to be dealt Suit no. 114/09 and 118/09 Page22 of 28 with in the light of its peculiar facts and circumstances. Judicial discretion has to be exercised on sound principles of fairplay, justice and equity.
38. A look at the undisputed facts of the case shows that the deceased (Smt. Santosh Aggarwal) breathed her last on 08.10.2008. In his suit no. 114/2009, the applicant herein (the plaintiff in the said suit) claims himself to be the resident of B1447, Shastri Nagar, Delhi and as far as the residence of all the defendants is concerned they also sail in the same boat i.e. shown as residents of B1447, Shastri Nagar, Delhi. He is also a party in the suit no. 118/2009 as the defendant no.
6. In the said suit, on 22.07.2009 a mention has been made by the Ld. Counsel for the plaintiff (Shri Harish Kumar, Advocate) that an application under Order 22 Rule 3 CPC was moved. On that date of hearing the defendant no. 6 had chosen not to appear when the case was called. On the next date of hearing i.e. 27.1.2010 the said application was allowed. The defendant no. 6 had again not chosen to appear when the case was called on that day. It was only subsequently, i.e. on 30.03.2010, the applicant (defendant no. 6) preferred his application for recalling the order dated 27.01.2010. On the same day he prefers applications under Order 22 Rule 4 CPC and section 5 of Suit no. 114/09 and 118/09 Page23 of 28 the Limitation Act in another suit no. 114/2009 in which the applicant is himself the plaintiff.
39. For the reasons best known to the applicant, in none of his applications he has categorically mentioned the specific date when he came to know of the death of the deceased, Smt. Santosh Aggarwal. This casts an aspersion on the conduct of the applicant and is liable to be treated as a circumstance against him. On the other hand, the proceedings of the suit no. 114/2009 shows that it was only on 16.03.2010 that the contesting applicants took the plea of abatement of suit. From 08.10.2008 till 16.03.2010, there is abject silence on the part of the contesting applicants as regards the death of the deceased Smt. Santosh Aggarwal, as far as the suit no. 114/2009 is concerned.
40. Though the Legislature, in its wisdom, has not provided any adverse consequences or penalty for noncompliance of the provisions of Order 22 Rule 10A, but it has cast a solemn duty upon the Ld. counsel of the deceased party to bring the factum of death to the notice of the Court. I see a rationale behind the same. A decree against a dead person is a nullity. Advocates, being the officers of the Court, have been envisaged as integral part of the justice delivery Suit no. 114/09 and 118/09 Page24 of 28 system and the duty described in the aforesaid rule is towards the Court and not towards any party in particular; the duty is towards the sanctity of the Court as the judicial system envisages the assistance of its officers to ensure that its orders, judgments and decrees are not to be challenged as nullity at a future stage thus opening a new round of litigations. The interest of society lies in the fact that every litigation is taken to its logical conclusion so that peace may prevail in the society and that multiplicity of litigation is avoided. Thus, the duty envisaged in the rule is a solemn and sacrosanct duty of an Advocate towards the public at large. The parties may have an axe to grind against each other, but an Advocate, being an officer of the Court, rises above all such considerations to uphold the system of law and the justice delivery system.
41. As far as the applicant is concerned, the matrix of facts shows that his conduct is not above loud or free of negligence. If he has chosen to sleep over his rights and duties, he is only himself to blame. His conduct becomes more obnoxious when he preferred to challenge the order dated 27.01.2010 in suit no. 118/2009. This is ostensibly an attempt to pressurize brow beat or overawe the other party. When he has chosen not to appear in many material proceedings Suit no. 114/09 and 118/09 Page25 of 28 in the Court, he has done so at his own peril. To cover his own lapses, he cannot be permitted to claim transfer of malice.
42. Procedure is handmaiden of justice. The cannons of justice stand for upholding the substantive rights of the parties and not to punish them for technical lapses. More so, when the other party can be compensated with costs for the delay and expense caused. In my considered view the substantive rights of parties cannot be thrown overboard for technical consideration.
43. In the celebrated case of Sangram Singh vs. Election Tribunal, Kotah AIR 1955 SC 455 it has been held by the Hon'ble Supreme Court of India that the maximum effect of setting aside an exparte order would be that the case would be heard on merits. In my view, the wider interest of justice demands that notwithstanding the negligence and latches of the applicant, his application for condonation of delay in the impleadement of LRs of the deceased Smt. Santosh Aggarwal, ought to be allowed subject to terms as to costs etc. and further that his application u/o 22 Rule 4 CPC the impleadement of LRs of the deceased (Smt. Santosh Aggarwal) be treated as an application for setting aside abatement and bringing on record the LRs and deserves to be allowed and for the delay and Suit no. 114/09 and 118/09 Page26 of 28 expense caused the defendant no.1 and 2 in suit no. 114/2009 deserve to be suitably compensated with costs. This would balance the rights of both the parties.
44. As the aforestated matrix of facts discloses, the application of the applicant Ashok Kumar for recall of order dated 27.01.2010 is vexatious. The conduct of the applicant shows that he is trying to derive mileage out of his own omissions and lapses and it trying to pass the buck. Such kind of conduct of litigants is deplorable. The averments in the application for recall are art for art's sake. The application in its garb is an application of review and is hit by the law of limitation notwithstanding the fact that it is also devoid of any merits. Even if the application is allowed no benefit would accure to the applicant on the remaining plaintiff can maintain the suit in his own right.
IT IS ORDERED AS UNDER
(i). The applications under section 5 of the Limitation Act and under Order 22 Rule 4 of the Code of Civil Procedure in suit 114/2009 (titled Ashok Kumar vs. Anil Aggarwal & 2 Others) are allowed subject to costs of Rs. 15,000/ (Rupees Fifteen Thousand Only) payable in equal shares to defendant no. 1 and 2 in the said suit and Suit no. 114/09 and 118/09 Page27 of 28 the notice of the application be sent to the proposed LRs of the deceased defendant no. 3, Smt. Santosh Aggarwal, on filing of process fee etc. The cost be paid within 15 days from the date of his order.
(ii). The application of Shri Ashok Kumar, the defendant no. 6 in suit no. 118/2009 (titled Santosh Aggarwal & Another vs. Om Parkash Dharam Kanta & 5 Others), is dismissed with cost of Rs. 5000/ to be deposited with DLSA, Central District, Delhi. The cost be deposited within 15 days from the date of his order.
45. All the applications under consideration stand disposed of in above terms.
46. Nothing stated herein shall tantamount to an expression of opinion on the merits of the cases.
47. This order, duly signed in ink, be placed in each file individually.
ANNOUNCED IN OPEN COURT
ON THIS 6TH DAY OF AUGUST 2011
Man Mohan Sharma
ADJ (Central)12, Delhi
Suit no. 114/09 and 118/09 Page28 of 28