Calcutta High Court (Appellete Side)
Sri Aloke Kumar Satnaliwala & Anr vs Bharat Petroleum Corporation Limited & ... on 9 December, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
CO 1927 of 2012
With
CO 2125 of 2012
Sri Aloke Kumar Satnaliwala & Anr.
-vs.-
Bharat Petroleum Corporation Limited & Ors.
Bharat Petroleum Corporation Limited & Ors.
-Vs.-
Smt Lajjabati Dasi & Ors.
Mr. S. K. Mal;
Mr. B. Das;
Ms. S. Das
..... for the petitioners in CO No. 1927 of 2012
and opposite parties in CO No. 2125 of 2012.
Mr. Mrinal Kanti Das;
Mr. Subhabrata Das;
Mr. S. Guha
.....for the petitioners in CO No. 2125 of 2012
and opposite parties in CO No. 1927 of 2012.
Heard on : 04/04/2014, 11/04/2014
Judgement on : 09 /12 /2014
Subrata Talukdar, J.: Both the above noted revisional applications
being CO 1927 of 2012 with CO 2125 of 2005 are taken up for
analogous hearing.
Sri Mrinal Kanti Das, Ld. Senior Counsel appearing for the
petitioners in CO 2125 of 2012 submits that the order dated 19th
March, 2012 passed by the Ld. 8th Civil Court (Senior Division),
Alipore in Title Suit No. 44 of 1991 is under challenge in both the
revisional applications.
In CO 1927 of 2012, the opposite party (OP) Bharat Petroleum
Corporation Ltd. (for short BPCL) is the petitioner. BPCL is also the
plaintiff in Title Suit No. 44 of 1991 and the opposite party in CO 2125
of 2012.
Sri Das's clients are the petitioners in CO 2125 of 2012 and the
defendants in Title Suit No. 44 of 1991 as well as the opposite parties
in CO 1927 of 2012.
The brief facts of the case are as follows:-
a) That the plaintiff/BPCL filed TS 44 of 1991 for declaration,
injunction, recovery of possession and damages before the Ld. 8th
Asst. District Court at Alipore praying, inter alia as follows:-
"a) For declaration that the plaintiff is a monthly thika
tenant in respect of the suit property, land under the
Government of West Bengal or in the alternative for a
declaration that the plaintiff is a monthly tenant in
respect of the suit land under the defendant nos. 1 to
7, their successors-in-interest or assignees, i.e. the
defendant nos. 8 to 10.
b) for a declaration that the decree passed in Tittle Suit
No. 57 of 1957 of Ld. 3rd Court of Assistant District
Judge at Alipore is not binding upon the plaintiff and
for a further declaration that the defendants were not
entitled to dispossess the plaintiff from the suit
property in basis of the said decree passed in Title
Suit No. 57 of 1979 of 3rd Court of Assistant District
Judge at Alipore.
c) for a declaration for a decree for recovery of the suit
property.
d) for a declaration of a decree for damages of Rs. 50,
000/- as claimed in the Schedule "B" below>
e) for a decree for permanent injunction restraining the
defendants from changing the nature and character of
the suit property in any way.
f) for all costs of the suit.
g) for any other relief or reliefs the plaintiff is entitled
to in law and equity."
b) The defendants contested the said suit by filling written statement
denying that the plaintiff/BPCL has been in occupation of the suit
property as a monthly tenant or that the alleged suit property was
vested with the Government of West Bengal on promulgation of the
Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 or
that the plaintiff/BPCL has become a direct tenant under the
Government of West Bengal.
c) According to the defendants, one Provash Chandra Mitra was the
original owner of the suit property since 26th of May 1923. The said
Pravash Chandra Mitra leased out the suit property to the
erstwhile Burmah Shell Storage and Distribution Company with
effect from 1st September, 1930 with a renewal clause.
During subsistence of the lease the said P.C. Mitra sold the
property to one Smt. Narayani Dasi. The said Narayani Dasi had
mortgaged the suit property in favour of one Bharat Insurance
Company on 25th March, 1937.
d) The said Bharat Insurance Company filed a mortgage suit against
Narayani Dasi being Title Suit No. 73 of 1939 and the suit was
decreed. The decree of mortgage was put into execution in Title
Execution Case No. 6 of 1940 and the present plaintiff, BPCL
purchased the suit property in auction. However, such purchase
was limited to the life interest of the said Narayani Dasi.
e) The judgment and decree in Title Suit No. 73 of 1939 was
challenged by the reversioners Lilabati Dasi (since deceased) and
Smt. Lajjyabati Dasi (being daughter of Narayani Dasi) by filing
Title Suit No. 8 of 1941 praying, inter alia for a declaration that the
judgment and decree in Title Suit No. 73 of 1939 is not binding
upon them as reversioners and the mortgage/decree holder is
entitled to only enjoy the property till the lifetime of the said
Narayani Dasi
f) After a contested hearing the suit was decreed in favour of the
reversioners by judgment dated 27th June, 1944. The Ld. Trial
Court was pleased to, inter alia, hold that the auction purchaser
acquired only the life interest of the said Narayani Dasi in the suit
property.
g) Being aggrieved by the judgment and decree passed in favour of the
reversioners, BPCL challenged such order in appeal before this
Hon'ble Court being Appeal No. 32 of 1945. This Hon'ble Court
was, however, pleased to uphold the judgment and decree of the
Ld. 2nd Court at Alipore.
h) BPCL claims to be a lessee in the suit property on the basis of a
lease agreement initially for 5 years with a renewable clause. It is
relevant to note that the erstwhile Bharat Insurance Company Ltd.
became Bharat Petroleum Corporation Ltd. after the Act of 1976
BPCL has alleged that the reversioners in the mortgage have
dispossessed the company from the suit property on the basis of a
decree obtained by the defendant Nos. 1-7 against the Life
Insurance Corporation of India in Title Suit No. 37 of 1979 passed
by the Ld. 3rd Asst. District Judge at Alipore.
i) During pendency of the proceedings the defendant No. 8 in Title
Suit No. 44 of 1991, one Sabitri Satnaliwala expired on 3rd
December, 2010. On 6th April, 2011 the report of the deceased was
filed and on 29th June, 2011 the names of the legal heirs of the
deceased defendant No. 8 was supplied to the plaintiff.
j) On 22nd September, 2011 the plaintiff/BPCL filed an application
under Order 22 Rule 4 of the CPC claiming that such application
for substitution has been filed within time from the date of
obtaining knowledge of the death of the legal heirs of the deceased
defendant No. 8.
k) On 19th March, 2012 the said application under Order 22 Rule 4
CPC was taken up for consideration by the Ld. Trial Court and,
after a contested hearing the Ld. Trial Court held that the suit has
abated qua the deceased defendant No. 8 and the petition for
substitution filed by the plaintiff on 22nd September, 2011 stood
rejected.
Aggrieved by the said order dated 19th March, 2012 Sri Mrinal
Kanti Das, Ld. Senior Counsel appearing for the petitioners in CO
2125 of 2012 and for some of the opposite parties in CO1927 of 2012
has argued as follows :-
i) That the surviving defendants provided the date of death of the
deceased defendant No. 8 along with the names of her legal heirs to
the plaintiff on 29th June, 2011. Thereafter, the application for
substitution was made by the plaintiff on 22nd September, 2011
stating that the said substitution application was within time, i. e.
within the date of knowledge of the names of the legal heirs of the
deceased defendant No. 8 and there was no unnecessary delay in
filing the said substitution application. It was, inter alia pleaded by
the plaintiff/BPCL that the time granted for filing a substitution
application is 90 days from the date of death of the deceased.
ii) Sri Das points out that the Ld. Trial Court specifically held that
the date of death of the defendant No. 8 was 3rd December, 2010
and the substitution application was filed on 22nd September,
2011 which was admittedly beyond the period of 90 days from
the date of such death. According to Sri Das, the starting point
of limitation would be 90 days from the date of death and not
from the date of knowledge of death.
In view of the application being filed beyond time abatement was
recorded qua the defendant No. 8. It is the further contention of Sri
Das that abatement ought to have been recorded not only against the
deceased defendant No. 8 but, the suit as a whole must be considered
to have abated since the prayers made in the plaint were composite
against all the defendants and no separate prayer and/or relief was
claimed against the defendant No. 8.
In support of his contentions Sri Das has relied upon the
decisions reported in AIR 1964 Supreme Court page 215 in the
matter of Union of India vs. Ram Charan (paras 8, 9 and 14); 1983
Volume 2 SCC Page 1932 in the matter of Swarup and Ors. Vs
Mulchand and Ors (Paras 12, 13 and 15); AIR 2007 Andhra
Pradesh page 325 in the matter of Gurjala Bharati and Anr. Vs
Mrs. Vindia Corporation and Ors ( paras 7 and 16); and 2004
Volume 7 SCC page 354, AIR 1973 Supreme Court (SC) 204; and
AIR 1926 Calcutta Page 893 .
Sri Das has submitted that the law laid down in AIR 1964
Supreme Court page 215 (supra) is binding on the point that
limitation for filing an application for substitution begins from the
date of death and not from the date of knowledge of the death. Sri
Das points to the fact that Order 22 Rule 9 CPC enjoins the applying
party to show sufficient cause for setting aside abatement by
condoning the delay. According to him, the expression 'sufficient
cause' has been correctly dealt with by the Hon'ble Apex Court in AIR
1964 Supreme Court page 215 (supra) and such findings still hold
good.
Sri Das further points out that Order 22 Rule 10A CPC which
has been incorporated by amending the CPC does not make any
perceptible change in the ratio of the judgment reported in AIR 1964
Supreme Court 215 inasmuch as the starting point of limitation
remains the date of death and not the date of knowledge of the death.
Sri Das further argues that for any application to be made for
substitution in order to save limitation, such application must be
made within 90 days from the date of death and, if such application is
made beyond 90 days it must be accompanied by a prayer for
condonation of delay showing sufficient cause. On the above score he
distinguishes the judgments relied upon by Sri Mal appearing for
BPCL.
Per Contra, Sri Mal appearing for the petitioner/BPCL in CO
1927 of 2012 and the O.P. in CO 2125 of 2012, submits that the date
of death of the defendant No. 8 is 3rd December, 2010 and the
intimation of death was received by BPCL on 6th April, 2011.
He further submits that the application for substitution under
Order 22 Rule 4 CPC was filed on 22nd September, 2011 with a joint
prayer for substitution and setting aside abatement. He points out
that irrespective of a specific prayer for setting aside abatement, such
prayer can be considered to be implicit with the substitution. Once
substitution is allowed, the abatement goes, he argues while drawing
the attention of this Court to the application filed under Order 22 Rule
4 CPC appearing at page 44 of CO 2125 of 2012.
Sri Mal relies upon AIR 1983 Supreme Court Page 1202 in
the matter of Gangadhar and another vs Sri Raj Kumar (paragraph
3). He also relies upon AIR 1997 Calcutta Page 386 in the matter of
Minati Sen alias Smt. D.P. Sen vs Kalipada Ganguli and Ors
(para 19); AIR 2003 Supreme Court page 4244 in the matter of
Mithailal Dalsangar Singh and others vs. Annabai Devram Kini
and others (para 8); 2012 Volume 3 Calcutta Law Journal page
431 in the matter of Sri Lalit Kumar Khettry vs Smt. Haimanti
Deb Roy & Ors. (paras 7, 8, 9 and 10); and AIR 1996 Supreme
Court page 1819 in the matter of Urban Improvement Trust,
Jodhpur vs.Gokul Narain and another. .
Sri Mal points out that no written objection was filed by the
defendants to the plaintiff's application under Order 22 Rule 4 CPC.
He submits that the decision relied upon by Sri Das in AIR 1964
Supreme Court page 215 has been considered in AIR 1983
Supreme Court page 1202 (supra) and in AIR 1997 Calcutta page
386 (supra). He asserts that the relevant period to be computed for
filing has been held to be the date of knowledge of the death of the
deceased defendant No. 8 and the application filed by his client for
substitution was therefore, well within the period of limitation
prescribed.
According to him the challenge in CO 1927 of 2012 is to the
order impugned dated 19th March, 2012 by which the Ld. Trial Court
was pleased to hold that the application for substitution was not filed
within time and, therefore, the suit shall be considered to have abated
against the deceased defendant No. 8. He prays for setting aside the
said order impugned.
By way of reply Sri Das submits that no written objection is
required to be filed by the defendants to the application for
substitution in view of the fact that law recognises abatement to be
automatic. He further submits that this Court cannot examine
whether the procedural amendments brought in by Order 22 Rule 10A
CPC can override the substantive provisions under Order 22 Rule 4
CPC read with Article 120 of the Limitation Act.
Sri Das points out that the challenge in CO 2125 of 2012 is to
the order impugned dated 19th March, 2012 to the extent that the Ld.
Trial Court ought to have dismissed the application under Order 22
Rule 4 CPC by holding that the entire suit has abated.
Heard the parties. Considered the materials on record.
This Court finds that Article 120 of the Limitation Act, 1963 is
clear on the point that the limitation for filing an application for
substitution under Order 22 Rule 4 CPC runs from the date of death
and such limitation is 90 days. In Malu & Ors. vs. Soran & Ors.
reported in AIR 1993 Punjab & Haryana 81, the High Court was
pleased to hold that limitation in the case of impleadment of legal
representatives would be governed by Article 120 of the Limitation Act
and not Article 137. Therefore, such application must be filed within
90 days from the date of death. The High court was pleased to rely
upon paragraph 7 of AIR 1992 SC 492 in the matter of Mahant
Niranjan Dass vs. Shiromani Gurudwara Prabandhak
Committee, Amritsar. Paragraph 7 reads as follows:-
"7. Resultantly, we hold that application to bring on
record the legal representatives of the deceased
plaintiff, whether filed by the legal representatives or
by others, will be governed by the provisions of
Article 120 of the Act and not by the residuary Article
137. The limitation to bring on record the legal
representatives of the deceased plaintiff or appellant
will run from the date of death and the period of
limitation is ninety days from that date."
The above principle has been enunciated by the Hon'ble Apex
Court as pointed out by Shri Das, Ld. Counsel in AIR 1964 SC 215.
Admittedly, the defendant no.8 died on 3rd December, 2010 and the
application for substitution was filed by the plaintiff on 22nd
September, 2011. The plaintiff claims to have obtained knowledge of
the death of the defendant no.8 sometime around June, 2011 and
therefore asserts in its application under Order 22 Rule 4 CPC that
such application is within the limitation prescribed.
In the opinion of this Court even if the plaintiff claims to have
obtained knowledge of the death of the defendant no.8 sometime
around June, 2011 and filed the application for substitution in
September, 2011, the limitation had begun to run from the date of
death as provided by Article 120 of the Limitation Act. In such
circumstances the plaintiff was under a legal duty to explain the
reasons for the delay in filing the substitution application. However,
this Court notices from a copy of such application under Order 22
Rule 4 CPC as annexed to both the COs that no explanation is given
by the plaintiff for seeking the substitution long after expiry of the
period of 90 days and the plaintiff was under the minimum legal
obligation to furnish a satisfactory explanation for the same. In the
absence of such explanation which are admittedly not to be found
from the four corners of the application under Order 22 Rule 4 CPC
this Court cannot be in agreement with the argument advanced by
Shri Mal that mere claim to knowledge can be construed to be
sufficient contrary to the specific mandate of Article 120 of the
Limitation Act.
In AIR 1983 SC 1202 in the matter of Gangadhar and
another vs. Shri Raj Kumar relied upon by Shri Mal, the Hon'ble
Apex Court was pleased to, inter alia, observe at Paragraphs 5 and 6
as follows:-
"5. So to the factual matrix. Deemed respondent died
on April 19, 1980. Appellants' application for substitution was moved on July 15, 1981.
Unquestionably it was beyond the prescribed period of limitation and the appeal had abated. what All the intervening circumstances that may help in determining the question whether appellants were prevented by a sufficient cause in moving the application within the period limitation.
6.We are of the opinion that the earliest knowledge about the death of the deceased-respondent can be attributed to the appellants on July 1, 1981 when Raj. Kumar applied for substitution. Promptly within two weeks the application for substitution was made by the appellants. Therefore, it is satisfactorily established that the appellants were prevented by a sufficient cause in making the application for substitution within the prescribed period of limitation and the delay deserves to be condoned."
In AIR 1992 SC 492 in the matter of Mahant Niranjan Dass vs. Shiromani Gurudwara Prabandhak Committee, Amritsar the Hon'ble Apex Court was pleased to hold the view that the language of Article 120 of the Limitation Act being clear and the application being presented beyond the period of 90 days, the delay needed to be satisfactorily explained. To the mind of this Court there was a requirement on the part of the present petitioner/plaintiff, even assuming for arguments sake the effect of the provision under Order 22 Rule 10A CPC as noticed in AIR 1983 SC 1202 (supra) that the cause for filing the application arose on the date of knowledge, to explain the delay. In 2008 (8) SCC 321 in the matter of Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhargavi Amma (Dead) by LRS and Others the Hon'ble Apex Court explained the law on the subject as follows:-
"4.3. Under Article 120 of the Limitation Act, 1963, the period of limitation to have the legal representative of a deceased respondent made a party of an appeal under the Code of Civil Procedure is 90 days from the date of death of the respondent. Article 121 provides that for an application under the Code of Civil Procedure for an order to set aside abatement, the period of limitation is 60 days from the date of abatement. Section 5 of the Limitation Act provides that any application may be admitted after the prescribed period if the application satisfies the court that he had sufficient cause for not making the application within such period."
"4.4. Sub-rule (5) of Rule 4 of Order 22 now gives a clear indication as to what will be sufficient cause. It provides that where the appellant was ignorant of the death of a respondent, and for that reason could not make an application for the substitution of the legal representative of the deceased respondent under Rule 4 within the time specified in the Limitation Act. 1963, and in consequence, the appeal has abated, and the appellant applied after the expiry of the period specified in the Limitation Act for setting aside the abatement and also for the admission of that application under Section 5 of the Limitation Act, the Court shall, in considering the application under Section 5 of the Limitation Act, have due regard to the fact of such ignorance, if proved."
"4.5. Rule 10-A or Order 22 provides that 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."
However, from a bare reading of the application for substitution filed by the plaintiff it transpires that such application has been filed devoid of necessary pleadings on the misconceived assumption that there is no requirement to explain the filing beyond the limitation prescribed by advancing sufficient cause and thereby the specific mandate of the statutory prescription has been circumvented.
On such score this Court does not find fault with the order impugned dated 19th March, 2012 and therefore the same warrants no interference.
Now, referring to the contention advanced by Shri Das in CO 2125 of 2012 that the Ld. Trial Court ought to have held that upon the death of the defendant no.8 the suit must be held to have abated as a whole, this Court notices from the averments in the plaint of Title Suit no. 44 of 1991 that the said defendant no.8 along with the defendant nos. 9 & 10 claim themselves to be the assignees-in- interest of the defendant nos. 1 to 7. It further transpires from the plaint that an execution case was filed in respect of the suit property by the defendant nos. 1 to 7 for executing an ex parte decree in an eviction suit.
This Court further notices that at paragraph 16 of the plaint, the present petitioner/plaintiff has, inter alia, pleaded that it is a bonafide tenant in respect of the property-in-suit and is entitled to declaration that it is a thika tenant under the Government of West Bengal or, in the alternative under defendant nos. 1 to 7 and/or their assignees-in-interest. The plaintiff has also sought a declaration that the ex parte decree in Title Suit no. 57 of 1979 as passed by the Ld. 3rd Sub-Judge at Alipore is not binding upon it and the petitioner/plaintiff has been illegally ousted from the suit property.
In view of the averments made in the plaint as noticed above to the mind of this Court on the death of the defendant no. 8, being one of the assignees-in-interest of the defendant nos. 1 to 7, it cannot stand to reason that the rights and interest of the other defendants, including the co-assignees-in-interest, being the defendant nos. 9 & 10, have merged with that of the deceased defendant no.8 and on her death the suit has abated as a whole.
This Court additionally notices that the plaintiff has claimed a declaration to be a monthly tenant under the defendant nos. 1 to 7 or, in the alternative, their assignees, the defendant nos. 8 to 10. The claim of the plaintiff in the suit, in the opinion of this Court, can survive qua the remaining defendants post the death of the defendant no. 8. On such score this Court also does not find any reason to interfere with the order impugned dated 19th March, 2012 and hence no relief can be granted in both the COS 1927 of 2012 and in CO 2125 of 2012.
Both CO 1927 of 2012 and CO 2125 of 2012 are thus dismissed.
There will be, however, no order as to costs.
Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)