Madras High Court
R.M.Raja Ambalam vs Malayandi on 6 July, 2007
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/07/2007 CORAM The Hon'ble Mr. Justice S.NAGAMUTHU CRP. PD (MD) No.310 of 2004 and C.M.P.(MD) No.1460 of 2004 R.M.Raja Ambalam .. Petitioner Vs. 1. Malayandi 2. Pillammai alias Pillammal 3. Malar 4. Kala 5. Rajeswari 6. Ramaiah Pattar .. Respondents Prayer Revision filed under Article 227 of the constitution of India against the fair and decreetal order made in I.A.No.330 of 2003 in O.S.No.68 of 2001 on the file of the learned District Munsif cum Judicial Magistrate, Thirumayam dated 31.03.2004. !For Petitioner ... Mr.G.Sridharan ^For Respondents ... No Appearance :ORDER
"Fairplay in action must inhere in judicial approach also as in administrative law and court's approach should be oriented with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties."-The Hon'ble Supreme Court in 1983 (2) SCC 132.
2. "...the appellants are admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased should have been granted." - The Hon'ble Supreme Court in AIR 1985 SC 606.
3. Bearing in mind the above observations made and the principles laid down by the Hon'ble Supreme Court of India, to achieve substantial and complete justice to the parties, it is necessary for this Court to approach the issues involved in this case.
4. The facts in nutshell are as follows:-
The petitioner who is the defendant in O.S.No.68 of 2001, on the file of the learned District Munsif cum Judicial Magistrate, Thirumayam, challenges the order dated 31.03.2004, made in I.A.No.330 of 2003, allowing the application filed by the respondents 1 to 5 herein to implead them as parties to the suit as they are the legal representatives of the deceased second plaintiff.
5. Originally, one Ramaya Pattar and Na.Karu.Nataraja Pattar have filed the above suit for declaration that they have got the hereditary right to perform pooja at Arulmigu Ponnamaravathi Udayapirati and Arulmigu Azhagu Nachiya Temples in Ponnamaravathi District, and for other related reliefs. The petitioner is the defendant in the suit.
6. Admittedly, during the pendency of the suit, the second plaintiff Na.Karu.Natarajapattar died on 19.11.2002 and the respondents 1 to 5 herein are his legal representatives. The respondents 1 to 5 have filed I.A.No.330 of 2003, on 30.04.2003, seeking to implead themselves as parties in the place of the deceased second plaintiff. The said application, though resisted by the defendant, was allowed by the learned District Munsif by order dated 31.03.2004 and the same is under challenge in this revision.
7. Heard the learned counsel for the petitioner. There is no representation on behalf of the respondents.
8. The only contention of the learned counsel for the petitioner is that the lower Court was not right in allowing the said I.A., since the order of abatement was not set aside on any application filed by the respondents 1 to 5, as required under Order XXII Rule 9 C.P.C. In support of the said contention, the learned counsel for the petitioner relied on the Judgment of the Hon'ble Supreme Court in Union of India v. Ram Charan (deceased) through his Legal Representatives, (AIR 1964 Supreme Court 215) and another Judgment of this Court in Velayutham v. Venugopal (2006 (1) CTC 468).
9. In order to appreciate the said contention of the learned counsel for the petitioner, it is necessary to analyse the relevant provisions of the Code of Civil Procedure and the limitation Act;
(i) Order XXII Rule 3 provides, 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 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.
(ii) Order XXII Rule 3(2) provides that if an application as required under sub-rule (1) of Order XXII Rule 3 C.P.C., is not made within the time limited by law, the suit shall abate.
(iii) Under Article 120 of the limitation Act, the time limit prescribed for such an application is 90 days. Therefore, if an application is not made within 90 days, it is automatic that the suit shall stand abate.
10. In the instant case, admittedly, application to implead the legal representatives of the deceased second plaintiff was not made in time and so the suit abated in respect of him.
11. Order XXII Rule 9 provides for setting aside the abatement. According to the said provision, the plaintiff or the person claiming to be the legal representative of the 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 and sub-rule (3) of Order XXII Rule 9 provides that the provisions of Section 5 of the Indian Limitation Act, shall apply to applications under sub-rule (2).
12. A plain reading of sub-rule (2) would show that for getting abatement set aside necessarily an application is to be made by the plaintiff or the legal representative or the assignee or the receiver as the case may be.
13. Article 121 of the limitation Act, prescribes a period of 60 days for making such an application under sub-rule (2) for setting aside an abatement. For any reason if such an application could not be made within 60 days, then a separate Interlocutory Application is to be made under Section 5 of the limitation Act, seeking to condone the delay as required under sub-rule (3).
14. Admittedly, in this case, there was no application made under Order XXII Rule 9 (2) C.P.C., requesting the Court to set aside the abatement and there was no application filed under Section 5 of the limitation Act, for condonation of delay. The respondents 1 to 5 have filed I.A.No.330 of 2003, as if the suit did not abate. The trial Court has however, allowed the said I.A., to implead the respondents 1 to 5 as legal representatives of the deceased second plaintiff. According to the learned counsel for the petitioner, since the suit in so far as the deceased second plaintiff is concerned, stands abated, the order of the lower Court is vitiated as without jurisdiction and therefore, the same should be set aside.
15. The Hon'ble Supreme Court in Union of India v. Ram Charan (deceased) through his Legal Representatives, (AIR 1964 Supreme Court 215) in paragraph No.12 has held as follows:-
"12.... The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time. The Court will set aside the abatement if it is provided that the applicant was prevented by any sufficient cause from continuing the suit. This means that the applicant had to allege and establish facts which, in the view of the Court, be a sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged, none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicant's not continuing the suit by taking necessary steps within the period of limitation. Such would be a very rare case...."
16. A plain reading of the above Judgment of the Hon'ble Supreme Court would make the legal position clear that necessarily there has to be an application made for the purpose of setting aside the abatement within the time prescribed. Following the same, this Court in Velayutham v. Venugopal (2006 (1) CTC 468) has also held in paragraph No.13 as follows:-
"13. ... No diligence was shown by the first respondent/the sole plaintiff either to implead the legal representatives or even later on to file an application to set aside the abatement and to file an application under Section 5 of the Limitation Act for condoning the delay in filing an application to set aside the abatement. Therefore, the first respondent/plaintiff cannot maintain the suit against the deceased 10th defendant as the suit already got abated."
17. In view of the legal dictum laid down by the Hon'ble Supreme Court in Union of India v. Ram Charan (deceased) through his Legal Representatives (cited supra), and the view expressed by this Court in Velayutham v. Venugopal (cited supra), in the case on hand, I have no hesitation to hold that the order of the lower Court is vitiated and therefore, the same is liable to be set aside.
18. But, if the impugned order is merely set aside without any further direction to the lower Court or without giving any liberty to the respondents 1 to 5 to rectify the procedural lapse, in my estimation, the result would be disastrous to the interest of the respondents 1 to 5 who claimed to have substantial right to be adjudicated upon by the Court. Of course, there is a failure to strictly follow the procedure contemplated in Order XXII. But, the said failure which is purely procedural can never be allowed to come in the way of doing full and complete justice to the parties.
19. Admittedly, the respondents 1 to 5 are living in remote villages and it also appears that they are illiterates. One cannot expect people with the said background to know the legal position that on the death of the second plaintiff, application to implead the legal representatives should be made within the time limit and if the same has not been done, to file an application seeking to set aside the abatement. These poor litigants always act on the advise of the legal fraternity. When the respondents 1 to 5 have approached the learned counsel, he should have properly appraised them of the legal provisions relating to the procedure and to have advised them to file appropriate applications for setting aside the abatement and also to file an application under Section 5 of the limitation Act, seeking to condone the delay. It is not as if the legal Maxim "Ignorantia juris non excusat" - "ignorance of law is no excuse" has lost its relevance in modern times. But, at the same time one cannot shut his eyes from the ground realities in our country. That is why the Hon'ble Supreme Court in Ram Sumiran v. D.D.C (AIR 1985 SC 606) has observed that in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time.
20. The Hon'ble Supreme Court in Bhagwan Swaroop v. Mool Chand (1983 (2) SCC 132) has held that court's approach should be oriented with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties.
21. The Hon'ble Supreme Court in Rama Ravalu Gavade v. Sataba Gavadu Gavade (1997 (1) SCC 261) while dealing with the failure of the learned counsel to give proper advice to an illiterate farmer has held as follows:-
"6. In view of the fact that the appellant is an illiterate farmer, the appropriate steps should have been taken by the counsel for the appellant on proper advice. In view of the fact that the counsel has not properly advised the appellant to take necessary steps, delay had occasioned. The High Court, therefore, was not right in refusing to condone the delay. It is brought to our notice that no application has been filed for setting aside the abatement and the appeal also stands abated. In view of the fact that the delay now stands condoned the abatement also stands set aside."
22. As laid down by the Hon'ble Supreme Court repeatedly, the aim of the Court should be to render substantial justice and the procedure is only a hand- maid of justice. The appropriate approach should be oriented only towards rendering substantial and complete justice and the technical rules of procedure should not be given precedence over substantial justice.
23. It is also to be noted that the lower Court has also committed an error in entertaining the Interlocutory Application to implead the legal representatives in the absence of the application to set aside abatement. The lower Court ought to have returned the I.A. The said error committed by the lower Court also should not prejudice the parties. The legal maxim "Actus curiae neminem gravabit- An act of the court will prejudice no one." squarely applies to this case.
24. In the instant case, if the impugned order is merely set aside without affording any more opportunity to the parties, in my opinion, it would amount to giving precedence for the technical rules of procedure over substantial justice. Therefore, apart from setting aside the impugned order some other opportunity should be given to the parties to rectify the procedural mistake committed by them probably on the improper advice of their counsel. Now the question remains as to what kind of liberty could be given to the parties to rectify the mistake.
25. At this juncture, I have to refer to another Judgment of the Hon'ble Supreme Court of India in Rudrappa K. v. Shivappa (2004 (5) CTC 365) in paragraph Nos.10 and 11 has held as follows:-
"10.......The case of the appellant before the district court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildhar. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hyper - technical view ought not to have been taken by the District Judge in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objection should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted to prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law.
11. Very recently, almost an identical case came up for consideration before us in Ganeshprasad Baddrinarayan Lahothi (D) by L.R. V. Sanjeevprasad Jamnaprased chourasiya and another, civil appeal No. 5255 of 2004, decided on August 16, 2004, the appellants heirs and legal representatives of deceased Ganeshprasad were not aware of an appeal filed by the deceased in the District Court, Jalgoan against the decree passed by the trial court. When the appeal came up for hearing the advocate engaged by the deceased wrote a letter to Ganeshprasad which was received by the appellants and immediately, they made an application for bringing them on record as heirs and legal representatives of the deceased. The application was rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay. The appellants, therefore, filed separate applications which were also rejected and the order was confirmed by the High Court. We had held that the application ought to have been allowed by the courts below. We, therefore, allowed the appeal, set aside the orders of the District Court as well as of the High Court and allowed the applications. In our opinion, the present case is directly covered by the ratio in the said decision and the orders impugned in the present appeal also deserves to be set aside."
26. The principles laid down by the Hon'ble Supreme Court in the above Judgment squarely applies to the facts of the present case. In the case on hand also there was no prayer for setting aside the abatement and also there was no prayer for condonation of delay. As held by the Hon'ble Supreme Court, it is absolutely necessary to afford an opportunity to the respondents 1 to 5 to rectify the procedural mistake committed by them by allowing them to take out necessary applications.
27. In a recent Judgment of the Hon'ble Supreme Court in Prithvi Raj(Dead) By LRs. v. Collector, Land Acquisition, H.P and another (2005 (12) SCC 198) the Hon'ble Supreme Court while dealing with a similar situation where a widow pleaded ignorance, in paragraph No.3 has held as follows:-
"3. By the impugned judgment, the High Court declined to implead the legal heirs of the original claimant in the pending proceedings. The petitioner widow submits that she was not aware of the pending proceedings, so she could not take any steps to this effect. The petitioner is permitted to implead/substitute the legal heirs of deceased Prithvi Raj in the appeal filed by the original claimant. We direct restoration of the case to the file of the High Court and we request the High Court to dispose of the same in accordance with law. We are told that the deceased Prithvi Raj has a living son. The present appellant shall take steps to implead the son also in the proceedings."
28. A close reading of all the Judgments cited supra would make it crystal clear that a party who claims to have substantial right which requires an adjudication by the Court of law should not be denied of the said opportunity by sticking on to hyper technical objections solely on procedures. Of course, in the case on hand, as concluded supra, the order of the lower Court is liable to be set aside. But at the same time, in view of the consistent view taken by the Hon'ble Supreme Court, to afford an opportunity to the respondents 1 to 5 who are the victims of improper advice given by their counsel and due to the error committed by the lower Court, they should be afforded an opportunity to file necessary applications before the lower Court under Order XXII Rule 9 (2) C.P.C., for setting aside the abatement and also to file an application under Section 5 of the limitation Act, seeking to condone the delay in making the said application under Order XXII Rule 9 (2) C.P.C. To have the said exercise, I.A.No.330 of 2003, should necessarily be remanded back to the lower Court.
29. In the result, the following order is passed:-
(i)The impugned order in I.A.No.330 of 2003, dated 31.03.2004, is set aside and the said Interlocutory application is remanded back to the file of the learned District Munsif cum Judicial Magistrate, Thirumayam for fresh disposal in accordance with law.
(ii)The respondents 1 to 5 are given liberty to file necessary application under Order XXII Rule 9 (2) C.P.C., by showing sufficient cause for setting aside the abatement of the suit in so far as the deceased second plaintiff is concerned.
(iii)The respondents 1 to 5 are given further liberty to file necessary application under Section 5 of the limitation Act, seeking to condone the delay by properly explaining the delay in filing the application with the application under Order XXII Rule 9 (2) C.P.C.
(iv)The lower Court is directed to dispose of I.A.No.330 of 2003 and the other two interlocutory applications if filed by the respondents 1 to 5 in accordance with law after affording sufficient opportunity to all the parties concerned and while doing the said exercise, the lower Court shall keep in mind the Judgments of the Hon'ble Supreme Court referred above wherein, the Hon'ble Supreme Court has declared the proper approach while dealing with the cases of people who are ignorants, illiterates and poverty-stricken.
30. With the above directions, the civil revision petition is disposed of. No costs. Consequently connected C.M.P is closed.
To, The learned District Munsif cum Judicial Magistrate, Thirumayam.