Allahabad High Court
Smt. Ritu Jutshi & Others vs Smt. Rukmini Kaul on 17 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2561
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 20 Case :- FIRST APPEAL FROM ORDER No. - 903 of 2012 Appellant :- Smt. Ritu Jutshi & Others Respondent :- Smt. Rukmini Kaul Counsel for Appellant :- Rajeiu Kumar Tripathi Counsel for Respondent :- Aftab Ahmad,Akhil Kumar,Malay Shukla,Mohammad Aslam Khan,Mohd. Shafiq,Mohiuddin Khan,Shaquiel Ahmad Hon'ble Manish Mathur,J.
1. Heard Mr. Rajeiu Kumar Tripathi, learned counsel for appellants and Mr. Shaquiel Ahmad, learned counsel for respondent.
2. First Appeal from Order under Section 104 read with Order 43, Rule 1 (k) read with Section 141 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) has been filed against order dated 31.07.2012 passed in Regular Civil Appeal No.53 of 1995. By means of the impugned order, the application for substitution filed under Order XXII Rule 3 has been rejected primarily on the ground that it was unaccompanied by any application for condonation of delay and application for setting aside abatement.
3. Learned counsel appearing on behalf of the respondent has raised a preliminary objection regarding maintainability of the appeal in view of the fact that an appeal under Order 43, Rule 1 (k) can be filed only against an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit. It has been submitted that since in the present case, the order under challenge has merely rejected the application filed under Order XXII Rule 3 of the Code, therefore, there is no refusal to set aside abatement in terms of Rule 9 of Order XXII and the present appeal, therefore, is not maintainable. Learned counsel for respondent has relied upon the decision of Hon'ble the Supreme Court in Mangluram Dewangan v. Surendra Singh and others reported in (2011) 12 SCC 773.
4. With regard to the preliminary objection raised by learned counsel for respondent, learned counsel for appellants has drawn attention to the record of appeal with the submission that the application for substitution filed under Order XXII Rule 3 was duly accompanied by an application seeking condonation of delay and was in fact on record as Paper No.C-62. It is submitted that aforesaid application was duly supported by an affidavit and, therefore, the lower appellate court has recorded a wrong finding that the application for substitution was unaccompanied by any application seeking condonation of delay. It has been further submitted that the rejection of application filed under Order XXII Rule 3 of the Code would in fact have the consequence of abating the proceedings and would as such amount to dismissal of appeal due to which the present appeal would be maintainable in terms of Order 43 Rule 1 (k). It has also been submitted that an application for condonation of delay and seeking substitution would have inherent relief of setting aside abatement without any specific application being made particularly in terms of Articles 120 and 121 of the Limitation Act. Learned counsel has relied upon a decision of Hon'ble Single Judge in Mst. Fakhrun and others v. Hafizulla alias Kalloo and others reported in 1999 (17) LCD 906 to substantiate his submissions.
5. Learned counsel has also submitted that the lower appellate court has also committed an error in dismissing the appeal as a whole without considering the fact that an application for substitution of appellant no.1 on record as Paper No. A-55/1 was already pending consideration although the same is not under challenge.
6. Upon consideration of material on record and submissions advanced by learned counsel for the parties, it is apparent that Application A-59 was filed by applicant Shyam Sunder Jutshi for his substitution in place of appellant no.3. The application was filed by the said applicant claiming himself to be the legal heir of deceased appellant no.3. Objections were filed against the application which were taken on record as Paper No.C-65. The impugned order dated 31.07.2012 has indicated that no formal prayer for condonation of delay has been filed nor any formal prayer for setting aside of abatement has been made which has natural consequence as to non-bringing of legal heirs of the deceased party on record in time. In pursuance of aforesaid, the application A-59 was rejected as having not been filed within time and not containing a prayer for setting aside abatement due to which the appeal as a whole was abated, leading to filing of the present appeal.
7. A perusal of the provisions under Order 43, Rule 1 (k) indicates that an appeal under the said provision can be filed against an order under rule 9 of order XXII refusing to set aside the abatement or dismissal of a suit.
8. In the present case, it is apparent and has been admitted that the application for substitution was filed under Order XXII Rule 3 without any application being filed under Order XXII Rule 9 for setting aside abatement although it is also apparent from the record that an application for condonation of delay in filing the substitution application was on record and was apparently not seen while passing the impugned order. Nonetheless, it is admitted that there was no separate application filed for setting aside abatement.
9. Section 104 read with Order 43 Rule 1 of the Code in fact does not provide for any appeal being filed against rejection of an application under Order XXII Rule 3. Learned counsel for appellants has placed reliance on the judgment passed by this Court in Mst. Fakhrun (supra) with the submission that the application for substitution can be treated as an application for setting aside abatement.
10. As is evident from the aforesaid decision in Mst. Fakhrun (supra), a learned Single Judge of this Court has held that an application for substitution of heirs of deceased appellant or respondent is also to be treated as an application for setting aside abatement and an order rejecting the said application amounts to an order refusing to set aside abatement.
11. However, from a perusal of paragraph 11 of said judgment, it is apparent that the same was held in terms of the question of limitation required with regard to filing of applications for substitution, condonation of delay and setting aside abatement. After examining the provisions of Articles 120 and 121 of the Limitation Act, it was held that an application for substitution with a prayer to set aside abatement may be made within a period of 150 days from the date of death of the plaintiff, defendant, appellant or the respondent as the case may be.
12. From aforesaid paragraph of the said judgment, it is apparent that the learned Single Judge has held that such a single application for substitution of legal heirs of the deceased can be treated to be an application if it is made within a period of 150 days from the date of death and the judgment itself indicates that even then in the application for substitution, a composite prayer to set aside abatement is also required. It is, thus, clear that prayer for setting aside abatement is required to be made whether by means of a separate application or even in the application filed for substitution. In the present case, from a perusal of the application filed by appellants, it is evident that no prayer whatsoever has been made for setting aside of abatement. As such, the aforesaid judgment does not help the case of appellants.
13. Learned counsel for appellants has also submitted that even under Order 43 Rule 1(k), it has been stated that the appeal would be maintainable from an order under rule 9 of order XXII refusing to set aside the abatement or dismissal of a suit. It has, thus, been submitted that the effect of the impugned order rejecting the substitution application is that the suit/appeal itself has been dismissed as indicated in the impugned order itself and, therefore, it is submitted that the appeal would be maintainable.
14. With regard to the said submission, it is apparent that the words 'or dismissal of a suit' cannot be seen in isolation and have to be ejusdem generis to the provisions indicated prior thereto. Any other interpretation of the said wordings would amount to doing violence to the provisions of the Code. It is clear from a reading of Order 43, Rule 1 (k) that the wordings 'or dismissal of a suit' have to be read in conjunction with the first part of the provisions which provides for appeal to be maintainable against an order made under rule 9 of order XXII refusing to set aside the abatement. Accepting the submission of learned counsel for appellants would have strange consequences in case the wordings 'or dismissal of a suit' are to be treated as a separate portion without any relation to the preceding wordings. If such a submission is accepted, it would amount to an appeal being maintainable under Order 43, Rule 1 (k) even in case a suit is dismissed on merits. In that case, therefore, the provisions of Section 96 of the Code or even Section 100 of the Code would be redundant. Such an interpretation cannot be provided in the present case.
15. In the present case, it is also apparent that without any specific prayer for setting aside abatement either in the substitution application or even by means of a separate application, such a relief cannot be read into the application. As such, it is clear that the application would remain an application under Order XXII Rule 3 of the Code and would not take on the garb of an application for setting aside abatement under Order XXII Rule 9 of the Code. Keeping this perspective in mind, it would thus be apparent that in the present case, only an application for substitution under Order XXII Rule 3 has been rejected and the scope of such an application cannot be expanded to consider it as an application under Order XXII Rule 9.
16. Hon'ble the Supreme Court in Mangluram Dewangan(supra) has clearly held that no appeal is provided against an Order under Order XXII Rule 3 and 5 of the Code either under Section 104 or Order 43 Rule 1 of the Code. In paragraph 10 (f) & (g) of the report, it has been held as follows:-
"10. A combined reading of the several provisions of Order 22 of the Code makes the following position clear:
(a) .....
(b) .....
(c) .....
(d) .....
(e) .....
(f) Where a suit abates or where the suit is dismissed, any person claiming to be the legal representative of the deceased plaintiff may apply for setting aside the abatement or dismissal of the suit under Order 22 Rule 9(2) of the Code. If sufficient cause is shown, the court will set aside the abatement or dismissal. If however such application is dismissed, the order dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code.
(g) A person claiming to be the legal representative cannot make an application under Rule 9(2) of Order 22 for setting aside the abatement or dismissal, if he had already applied under Order 22 Rule 3 for being brought on record within time and his application had been dismissed after an enquiry under Rule 5 of Order 22, on the ground that he is not the legal representative."
17. Upon applicability of the aforesaid judgment in the present facts and circumstances, it is clear that once the suit has abated or is dismissed, any person such as the appellants claiming to be a legal representative of the deceased would be required to apply for setting aside the abatement or dismissal of the suit under Order XXII Rule 9 (2) of the Code. However, if such an application is dismissed, the order dismissing such an application would be open to challenge in an appeal under Order 43, Rule 1(k) of the Code.
18. From aforesaid, it is clear that once the suit has abated or it is dismissed or in the present case the appeal, it was open to the person claiming to be legal representative of the deceased to apply for setting aside of abatement or dismissal of the suit in terms of Order XXII Rule 9(2) of the Code. However, in the present case, there was no application either for setting aside of abatement or dismissal of the suit as required to be filed under Order XXII Rule 9(2) of the Code. In such circumstances, it is evident that since there was no application for setting aside abatement or dismissal of the suit as contemplated in paragraph 10(f) of the aforesaid judgment, the connotation and purport of the application A-59 remain as an application for substitution under Order XXII Rule 3 of the Code and by no stretch of imagination can it be held to be an application for setting aside of abatement.
19. In view of aforesaid, it is evident that the respondent has rightly objected to the maintainability of the appeal since it is not maintainable from an order rejecting an application under Order XXII Rule 3 of the Code.
20. Consequently, the appeal fails and is dismissed. The parties to bear their own costs.
21. At this juncture, learned counsel for appellants submits that the appeal is pending consideration since year 2012 and even if now an application for setting aside of abatement is filed before the lower appellate court, it would have great difficulty with regard to condonation of delay. Regarding the same, it is apparent from the record that an application for condonation of delay in filing the substitution application is already on record which has been overlooked while passing the impugned order. As such, the same can be considered and orders be passed thereupon due to which pendency of the present appeal should not come into the way although orders pertaining to same would be required to be passed by the court concerned who may also take into account the provisions of Section 14 of the Limitation Act. However, no such specific direction can be issued in the present appeal since it has been dismissed on the issue of non-maintainability.
Order Date :- 17.8.2021 kvg/-