Calcutta High Court
Bimal Krishna Nath vs Sm. Minati Sen And Ors. on 26 April, 1993
Equivalent citations: (1993)2CALLT292A(HC), 97CWN941
JUDGMENT R. Bhattacharyya, J.
1. This Misc Appeal by the unsuccessful petitioner against an order No. 28 dated 29.5.85 in Misc Case No. 11/85 passed by the learned Additional Dist Judge, Alipore.
2. Briefly stated the facts giving rise to the Appeal are these :
The appellant-petitioner suffered a decree for eviction in Title Suit No. 49 of 1980 passed by the 3rd Court of Additional Munsiff, Alipore.
3. On being aggrieved a title appeal was preferred being Title Appeal No. 14 of 1984 which was fixed on the board for hearing on 20.11.1985. The appellant was although ready with his advocate for hearing but the hearing was stalled for the death of the respondent. The bench clerk booked him with the information about the death of the respondent and the hearing before substitution was, therefore, inevitably necessary.
4. After making due and reasonable inquiry, the record of the learned court below revealed that no copy of the death report was served either on the petitioner-appellant or his Advocate. It is significant that the death report was meticulously silent about the date of death of the respondent. The dent was brought to the notice of the bench clerk who informed them that appropriate orders would be passed.
5. The petitioner-appellant explored the private sources which furnished an information that the respondent died on 10.3.85, who was a resident of Landsdowne Road. In the meantime, for the efflux of time, the appeal abated for want of substitution as the petitioner-appellant was sufficiently prevented from filing an application for substitution as the knowledge of death of the respondent and his heirs was absent.
6. The claim was resisted by the opposite parties on the ground that the petitioner-appellant had adequate knowledge about the date of death of the respondent long before 21.11.85. The story of information of death by bench clerk and the procedure loudly spoken is a ruse, the object being to explore the avenues to avoid the rigour of substitution through the backdoor. The other ground sought to be availed of by the opposite parties is that an application for condonation of delay since did not see the light of the day, the appellant could not excavate the desired relief. The appellant was suffering from culpable negligence and the deliberate default committed by him in taking steps for substitution within the time was incurable in the line of law dwelling on the right of substitution.
7. The learned court below, after considering the factual premises of the case, dismissed the misc. case holding that the appeal abated with the expiry of 90 days from 30.3.85 as Article 121 of the schedule of the Limitation Act did not strengthen the claim of the petitioner-appellant when this misc. appeal for reversal of the order complained of dated 29.5.85.
8. The question for consideration is not surrounded by welter of facts as many of them are not disputed. It is an easy task to pick the way through the applications and the surrounding circumstances to arrive at an intelligent and coherent picture for the performance of deciding the point raised in the appeal.
9. Mr. Amal Ghosal, the learned Advocate, appearing for the petitioner-appellant has made a succinct argument that the death since inadvertently put in by the appellant in the application under Order 22 Rule 9 has been magnified by the opposite parties to draw food from it in order to cause a shipwreck to the case of the appellant who was throughout the diligent, as explained by the materials an record. The combined application in absence of a separate application Under Section 5 of the Limitation Act, 1963 for condonation of delay has stripped of the right of the appellant. To stimulate the argument, Mr. Ghosal has made a forceful submission that statutory obligation as encompassed by Order 22 Rule 10-A of the Code of Civil Procedure, 1976 was not given any due legal weight. The relief in the background of non-performance of statutory duties by the opposite parties cannot put the appellant out of court considered with the pregnant full of tangible materials.
10. The claim has been refuted by the opposite parties on the ground that the appellant is not protected for the negligence and carelessness of the appellant who tried to conceal his negligence where the court may decline to exercise power under Order 22, Rule 9(2) of the Code. The view, thus, taken by the learned court below is perfectly justified.
11. In developing the point, Mr. Ghosal has submitted that Order 22 Rule 10-A was found its way in the amended Code, with the object of advancing the administration of justice and the technical procedural lapse should not make any encroachment on it. The object of the said rule is that it was the solemn duty of the pleader to communicate to Court the death of a party. It is undoubtedly true that the legislative intent of Rule 10-A of the Code was inserted to cast an obligation on the pleader of the parties to communicate to the Court the death of the party represented by him. To sustain the claim Mr. Ghosal has taken me through the order-sheet of the learned court below. It unfolds, on perusal, as submitted by Mr. Ghosal that it is notorious from the order-sheet of the learned court below that the order No. 18 dated 13.8.85 that 29.3.85 was fixed for hearing the appeal. The order passed on 13.8.85 unquestionably reveals or proves the presence of the appellant on the said date when the death of the respondent was not reported to the court who died on 30.3.85. Therefore, it stands out that more than 120 days have elapsed. Even on 23.9.85, the actual date of death was not disclosed.
12. In the premise, the order Nos. 18, 19 & 20, if read in isolation or in conjunction with each other, it is manifest that the appellant was not suffering from negligence far less culpable negligence as his attendance in the court was not made under the pretence of his knowledge about the date of death of the respondent. Rather it is conspicuous that appeal was allowed to be abated not by the conduct of the appellant but by the person who put in the death report through the learned Advocate for the deceased respondent without disclosing the date of death. Therefore, the appellant had the earlier knowledge of death does not stand out from the order delivered.
13. Mr. Ghosal has laboriously contended that the date of knowledge as spoken of by the petitioner on 20.11.85 could be safely attributed to in advertence but not mala fide when considered with the order passed by the learned court before. Incidentally, it has been canvassed by him that it is not expected of a party to go through the order-sheet and the diaries of the court about the locomation of the suit or the appeal, as the case may be, in absence of assistance of the learned Advocate engaged for the parties. The death of knowledge as imputed and canvassed by the learned Advocate for the opposite parties does not bear any force for the assembly of materials on record. The authorship of the information about the date of death of the respondent put in had spelt out a disastrous consequence as it is difficult to hold for the date disclosed in the combined petition for relief.
14. Mr. Ghosal, the learned Advocate appearing for the petitioner-appellant has relied in the case of Gadaichandi Thakurani and Anr v. U. D. Barik and Ors., where the learned Judge considered the case of the petitioners under Order 22 Rule 4(5). The fact of the case was that the defendant passed away on 1.9.80 which was intimated to court on 3.12.1980 and on 30.1.81 i.e. on the date of hearing of memo, the plaintiff filed an application for substitution of the legal representative of the deceased, which also contained prayer for setting aside the abatement of the suit, however, inadvertently, the plaintiff stated in that application that he came to know about the death of the deceased on 1.9.1980. The application, however, stood rejected by the learned lower court as it was time barred and not accompanied by an application Under Section 5 of the Limitation Act. The learned Judge held that the learned court could not have refused to consider the question of condonation of delay merely on the ground of absence of formal application. It is glaring from the judgment under reference that a separate application Under Section 5 did not see the light of the day. But the court condoned the delay.
14a. The learned Advocate for the respondent countered the ruling on the ground that the facts of the case at hand do not verge on the facts and circumstances and law of the decision under reference. I am unable to persuade myself to agree to the contention made by Mr. T. K. Sengupta, the learned Advocate, appearing for the opposite parties.
15. The next case relied on by Mr. Ghosal is Kunhikayyumma and Anr. v. Union of India and Ors., . The Court while examining the scope of Order 22 Rules 4 and 9(2) of the Code of Civil Procedure, 1908 observed that provisions of Order 22 which are only procedural ought not to be subjected to narrow construction and hyper technical contentions having the effect of deflecting the court of justice. If, from facts and circumstances of the case sufficient cause for the delay in seeking substitution of the legal representatives of the deceased parties was obvious the court would be justified in granting the relief ignoring the fact that the affidavit neither mentioned the cause nor prayed for setting aside the abatement. The prayer should be treated as being implicit in the application for impleading the legal representatives. It should also be borne in the mind for the observations made by his lordship that the rules of procedure are only hand maids of justice.
16. Mr. Sengupta, the learned Advocate for the opposite parties has relied on the case of Esam Sk and Ors. v. Sattar Mallick and Ors., . The facts of the case are : the court came to the conclusion in the ruling under reference that the petitioners had knowledge of the death of the respondent. They did not attend the Court as the petitioner No. 1 who was looking after the case for the parties was under the impression that the heirs of the deceased respondent would apply themselves for substitution as they did in their own suit. The orders passed by the learned Additional Dist. Judge on the dates aforementioned made it evident that the absence of knowledge of the appellant about the death of the respondent was patent. A date inadvertently put in without anything more cannot snatch the right of the appellant. Therefore, the rulings cited by Mr. Sengupta for the O.P. is of no assistance.
17. The next case cited by Mr. Sengupta for the O.P. is Union of India v. Ramcharan, . The decision of the Supreme Court in the above case on which reliance was placed by Mr. Sengupta for the O.P. is not as absolute as may be thought of as first sight. No doubt, the insistence for there being sufficient cause for setting aside the abatement had been highlighted in that decision. However, a close reading of paragraph 8 of the judgment the Supreme Court observed as follows :
"There is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be overstrict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the Court should be readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellants default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement."
18. This view has been consistently followed in Lal Singh v. Gurnam Singh and Ors., . It does not appear from judgment under reference that a separate application Under Section 5 of the Limitation Act, 1963, was filed for condonation of delay. Upon scrupulously reading the ruling under reference it could be legitimately said that the scope of Order 22 Rule 10-A never fell for decision of any of the Courts as Order 22 Rule 10-A sprang up from the Code of 1976.
19. The case of Ganghadhar and Anr. v. Sri Rajkumar, , may provide some light to adjudge the issue.
20. The procedural law of Order 22 Rule 10-A of the amended Code is not an empty formality, the pre-eminent object of which is to expedite the administration of justice than defeated by intrusion of technical procedural lapse. This very innovating provisions has been introduced in the case of Ganghadhar (Supra), the Supreme Court observed :
"Rule 10-A which has been added in Order XXII of Civil P.C. by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the court about it and the court thereafter shall issue notice to the other party. In the case of an appeal, the word "suit" has to be read as "appeal". This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. This duty cast upon the Advocate appearing for the party who comes to know about the death of the party to intimate to the court about the death of the party represented by the counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client."
21. Even the case of Ajai Verma v. Ram Vharosealal and Ors., does not threw any light as there was an interval of more than one year between the date of death and the date of filing the application for abatement.
22. Therefore, the contention of Mr. Ghosal very well succeeds in the backgrounds of the factual and legal premises of the case.
23. Mr. Sengupta for the O.P. could not convince me that Rule 10-A of Order 22 is merely directory and not obligatory. Nor he could convince me that separate application Under Section 5 should show its head to harvest relief when the time for setting aside the abatement ran out. There is no material on record that the applicant had earlier knowledge of the date of death of the respondent.
24. The view taken in the case by the learned court below unquestionably shows that the learned court below was in grave error in refusing to set aside the abatement on the ground of absence of an application Under Section 5 of the Limitation Act, 1963 and the knowledge of the appellant about the date of death of the respondent long before the petition preferred under Order 22 Rule 9 read with section 5 of the Limitation Act, 1963.
25. The facts and circumstances inevitably show the diligence of the appellant who was sufficiently prevented by a cause sufficient in making the application for substitution within the prescribed period of limitation and the delay unhasitatingly deserves to be condoned.
26. Accordingly, the appeal succeeds and is allowed. The delay in making substitution of the heirs of the deceased respondent is condoned. The abatement of the appeal as held by the learned court below is hereby set aside. The matter is remitted to the learned court below to dispose of the appeal on merits in accordance with law and the same should be disposed of within three months from the date of the receipt of the record by the learned trial court after notice to the parties.
However, considering the circumstances, I do not pass any order as to cost.
Let the record go down to the court below forthwith.