Punjab-Haryana High Court
Bijender Singh vs Smt.Phool Kaur on 12 October, 2010
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
C.M.Nos.10212-C and 10213-C of 2010 in 1
RSA No.669 of 2010
IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH.
C.M.Nos.10212-C and 10213-C of 2010 in
RSA No.669 of 2010
Date of order:12.10.2010
Bijender Singh ...Applicant
vs
Smt.Phool Kaur
....Respondent
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG.
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Present: Mr.Arun Jain, Senior Advocate, with
Mr.Chetan Slathia, Advocate, for the applicant-appellant.
Ms.Amita Gupta,Advocate, for the non applicant-respondent.
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Rakesh Kumar Garg,J.
C.M.No.10212-C of 2010 Vide these applications a prayer has been made for impleading the legal representatives of deceased appellant Bijender Singh after condoning the delay of 130 days in filing the application. Notice of these applications was given. Reply has been filed on behalf of the respondent wherein it has been stated that there is no reason to condone the delay in filing the application for bring on record the legal representatives of the appellant and the same are liable to be dismissed.
Shri Arun Jain, learned Senior counsel, has argued that there was no necessity of filing this application for condonation of delay in view of the notification dated 21.2.1992 of this Court whereby sub rule (2) of C.M.Nos.10212-C and 10213-C of 2010 in 2 RSA No.669 of 2010 Rule (3) of Order 22 of Code of Civil Procedure has been substituted by way of local amendment as applicable to States of Punjab, Haryana and Chandigarh, to the effect that in case the legal representatives of the appellant are not brought on record within the stipulated period of limitation the appeal shall not abate for the said reason. It has been further argued by the learned counsel for the appellant that the aforesaid local amendment has not been affected in any way as no change has been effected in the provisions of Order 22 of the Code of Civil Procedure by Amending Act 22 of 2002 and, therefore, section 16 of the Amending Act, 2002, will not be applicable with respect to the rule as inserted by local amendment of this Court. The learned counsel has also brought to the notice of the Court a Full Bench decision of this Court in the case of Smt.Chand Kaur vs. Jang Singh and others, 1978 PLR746, wherein it was held that sub rule (3) to rule (4) of Order 22 of the Code substituted by this Court on March 25, 1975, is not inconsistent with the provisions of the Code as amended by the Amendment Act of 1976 and the said rule does not stand repealed. Mr.Jain has further argued that in any case by virtue of the provisions of Order 22 Rule 9 of the Code of Civil Procedure, Section 5 of the Limitation Act is applicable and the delay in making the application is liable to be condoned.
On the other hand learned counsel for the respondent has argued that in view of Section 157 of the Code of Civil Procedure any local amendment which is inconsistent with the principal Code stood repealed. Since the Local Amendment inserted by way of notification is not consistent with the provision of Order 22 Rule 3(1) which provides limitation for C.M.Nos.10212-C and 10213-C of 2010 in 3 RSA No.669 of 2010 making an application to bring on record the legal representatives of deceased plaintiff the same stands repealed. Learned counsel for the respondent has also relied upon a judgment of the Hon'ble Supreme Court of India in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by L.Rs 2001 AIR (SC) 1273 wherein, while interpreting the scope of section 41 of the Punjab Courts Act and section 100 of the Code of Civil Procedure after 1976 amendment, it has been authoritatively laid down that any local law which is inconsistent with the Code shall stand superseded. In support of his contention, learned counsel has referred to para 21 of the aforesaid judgment, which reads as under:-
" This clearly reveals true intent of the legislature viz., any provision of the State Legislature existing prior to the amending Act which becomes in consistence to this amending Act is in consonance with both sub-clause (1) and proviso to sub-clause (2) of Article 254 of the Constitution of India. Thus, language of Section 97(1) of the Amending Act clearly spells out that any local law in consistent goes but what is not in consistence, it could be said the local (law) would still continue to occupy its field."
I have heard the learned counsel for the parties.
It is useful to refer to Order XXII of the Code of Civil Procedure, which reads as follows:-
"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 C.M.Nos.10212-C and 10213-C of 2010 in 4 RSA No.669 of 2010 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.
3.Procedure in case of death of one of several plaintiffs or of sole plaintiff:-(1) Where one of two or more plaintiff dies and the right to sue dies not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to 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 sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, 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 defendant dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(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 sub-rule (1), the suit shall abate as against the C.M.Nos.10212-C and 10213-C of 2010 in 5 RSA No.669 of 2010 deceased defendant.
(4) The Court whenever it thinks fit, may except the plaintiff from the necessity of substituting the legal representatives of any such defendant 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 judgment may, in such case, be pronounced against the said defendant notwithstanding 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 legal 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 abatement 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, sufficient 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 approved. 4-A. 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 appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit, and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound C.M.Nos.10212-C and 10213-C of 2010 in 6 RSA No.669 of 2010 if a person representative 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 person having an interest in the estaste of the deceased person as it thinks fit; and
(b)shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be 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 representative 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 together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the questiuon.
6. No abatement by reason of death after hearing: Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as 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 C.M.Nos.10212-C and 10213-C of 2010 in 7 RSA No.669 of 2010 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 the husband, where the husband is by law entitled to the subject-matter of the decree.
8. When plaintiff's 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 incurred 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 the applications under sub-rule(2).
Explanation:-Nothing in this rule shall be construed as barring, in any later suit, a decree based on the facts which constituted the C.M.Nos.10212-C and 10213-C of 2010 in 8 RSA No.669 of 2010 cause of action in the suit which had abated or had been dismissed
10. Procedure in case of assignment before final order in suit :- (1) In other cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1). 10-A. Duty of pleader to communicate to Court death of a party:-
Whenever 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 thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.
11. Application of Order to appeals:- In the application of this Order to appeals, so far as may be, the words "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 execution of a decree or order".
Thus, Order 22 of the Code of Civil Procedure deals with the situation where the plaintiff or defendant dies during the pendency of suit. Order 22 rule 3(1) provides that if the right to sue does not survive in the case of death of the plaintiff, the suit shall abate. However, if the right to sue survive, the Court shall cause the legal representative of the deceased- plaintiff to be a party on an application made in that behalf within the prescribed period of time (90 days) and shall proceed with the suit and where within the time limited as prescribed by law no application is made the suit shall abate so far as the deceased plaintiff is concerned. C.M.Nos.10212-C and 10213-C of 2010 in 9 RSA No.669 of 2010
However, it may be noticed at this stage that vide notification dated 21.2.1992 the amendment was made by this Court and Order 22 rule 3(2) was substituted to say that if legal representatives of a deceased party are not brought within the prescribed period of limitation the suit shall not abate for the aforesaid reason. The substituted Order 22 rule 3(2) reads as under:-
"Where within the time limited by law no application is made under sub-rule(1), the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between the deceased and the pleader in that event shall continue to subsist".
It is also relevant to refer to Section 16 of the Amending Act 22 of 2002, which reads as follows"-
"16.Repeal and savings:-(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897-
(a) the provisions of section 102 of the principal Act as substituted by section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of section 5; and every such appeal shall be disposed of as if section 5 had not come into force;
(b) the provisions of rules 5,15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or C.M.Nos.10212-C and 10213-C of 2010 in 10 RSA No.669 of 2010 substituted by section 16 of the Code of Civil Procedure (amendment)Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act;
( c) the provisions of rule 1 of Order XX of the First Schedule as amended by section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of section 13 of this Act."
From the perusal of the aforesaid provision it is explicitly clear that only those Local amendments/provisions in the Code of Civil Procedure which are inconsistent to the amendments made by the Amending Act of 2002, shall stand repealed. Herein, it must be noticed that no change has been effected in the provisions of Order XXII of the Code of Civil Procedure by the Amending Act 22 of 2002.
Now at this stage it may also be noticed that this Court had also amended the provision of Order 22 rule 4 vide notification dated 11.4.1975 which reads as follows:-
"High Court Amemdment- Punjab,Haryana and Chandigarh:- (i) In rule 4, sub rule (3) shall substituted as follows:-
"(3)Where within the time limited by law no application is made under sub rule (1) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."
(ii) In rule 4 the following shall be inserted as sub-rules (4), (5) and (6), namely:-
"(4) If a decree has been passed against a deceased-defendant a person claiming to be his legal representative may apply for setting aside the C.M.Nos.10212-C and 10213-C of 2010 in 11 RSA No.669 of 2010 decree qua him and if is is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the Court shall set aside the decree upon such terms as to costs or otherwise as it things fit.
(5)Before setting aside the decree under sub-rule (4) the Court must be satisfied prima facie that he had the legal representative been on the record a different result might have been reached in the suit.
(6) The provisions of section 5 of the Limitation Act, 1963 shall apply to applications under sub-rule (4)." -(11-4-1975).
The aforesaid provisions were held to be consistent with the provisions of the Code as amended by the Code of Civil Procedure (amendment Act 1976) by a Full Bench of this Court in Smt.Chand Kaur vs. Jang Singh and others, 1978 PLR746, in which it was observed as under:-
"Held, that if a rule or sub-rule in Schedule 1 of the Code was amended or substituted by a High Court before the Amendment Act the amended or substituted rule does not stand automatically repealed by virtue of section 97(1) for the reason that original rule or sub-rule as framed by the Legislature has not been amended by the Amendment Act. If it had been the intention of the Legislature, it would have stated so specifically. I am, therefor, unable to hold that sub-rule (3) to rule 4 as framed by this Court stands repealed after the Amendment Act".
As already noticed, no change has been effected in Order 22 of the Code of Civil Procedure by Amended Act 2002. The only difference between Order 22 rule 3 and Order 22 rule 4 is that Order 22 rule 3 is applicable where a plaintiff dies whereas Order 22 rule 4 applies where death of a defendant has taken place. Even the Hon'ble Supreme Court of India in Kulwant Kaur's case (supra) has laid down that only those Local Laws which are inconsistent with the provisions of the Amending Act C.M.Nos.10212-C and 10213-C of 2010 in 12 RSA No.669 of 2010 2002, are held to be repealed.
At this stage it will also be relevant to refer to the provision of Order 22 rule 9 of the Code of Civil Procedure which provides that where a suit abates or is dismissed under this Order, the legal representatives of the deceased-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. By virtue of Order 22 rule 9(3) CPC the provision of Section 5 of the Limitation Act 1877 are also applicable to such an application made for setting aside the abatement of the suit and if there exists sufficient reasons for condoning the delay, the abatement is to be set aside. It may also be pointed out that by virtue of Order 22 rule 11 the suit includes appeal and the plaintiff includes appellant and the defendant means respondent. It is also relevant to mention at this stage that this Court can make such rules/regulations relating to its own procedure and procedure of civil Court from time to time under section 122 of the Code of Civil Procedure and has power to annul, alter, add all or any of the rules in First Schedule. Noticing the aforesaid provisions of section 122 of the Code of Civil Procedure and the amendments under Order 22 rules 3 and 4, made by this Court vide notifications dated 21.2.1992 and 11.4.1975, this Court in the case of Sat Pal Singh v. Chuhar Singh and others, (2006-3)PLR 766 and Banta Singh v. Khajan Singh, 2001(2) RCR(Civil) 326, held that there is no limitation for bringing on record the legal representatives of deceased litigants.
Thus, on the basis of the aforesaid discussion, a conclusion can C.M.Nos.10212-C and 10213-C of 2010 in 13 RSA No.669 of 2010 safely be drawn that the local amendment made by this Court vide notification dated 21.2.1992 does not stand repealed by the Amending Act 2002. In other words, there is no limitation for bring on record legal representatives of the plaintiff/appellant in a suit or an appeal, as the case may be. Thus, I am of the view that Order 22 rule 3(2) as substituted vide notification dated 21.2.1992 as inserted by this Court is saved and there is no limitation for filing an application to bring on record the legal representatives of the appellant who had died during the pendency of the appeal before this Court.
Faced with this situation, learned counsel for the respondent has argued that when the appellant dies during pendency of appeal/case the legal representatives of such a deceased person had to be brought on record before the Court, and only thereafter the Court can proceed further in the appeal, and the Court cannot postpone the decision of bringing on record the legal representatives, otherwise it will amount to the appeal being heard against a dead person which is clearly impermissible in law and rendering the entire judgment as a nullity and inoperative.
The argument raised by the learned counsel for the appellant does not arise in the present case as the appellant has died only during the pendency of this appeal. There is no question of any judgment/decree having been passed against or in favour of such a dead person. Moreover. Order 22 rule 9 clearly envisage that on being shown a sufficient cause, the Court can set aside the abatement also.
For the reasons mentioned above, applications are allowed and the applicants are brought on the record of this appeal as legal C.M.Nos.10212-C and 10213-C of 2010 in 14 RSA No.669 of 2010 representatives of Bijender Singh appellant only for the limited purpose of pursuing this appeal and the same will not be taken to be expression on the determination of the rights of the legal representatives of Bijender Singh appellant.
Main appeal be listed on 9.11.2010. Be shown in the urgent list.
( Rakesh Kumar Garg) Judge October 12, 2010 rk