Calcutta High Court (Appellete Side)
Smt. Renuka Dhar & Ors vs Pravat Kumar Jana & Anr on 12 August, 2015
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.A.N 8794 of 2012
In
S.A. 228 of 1981
Smt. Renuka Dhar & Ors.
Vs.
Pravat Kumar Jana & Anr.
For the appellants/petitioners : Mr. Yasin Ali,
Mr. Dipankar Mondal,
Ms. Mamata Khatun.
For the Respondents : Mr. Bhaskar Ghosh,
Ms. Debarati Bose.
Heard on: - July 09, 2015, August 06 and 10, 2015.
Judgment on: - August 12, 2015.
Ashis Kumar Chakraborty, J.
In this application the present surviving appellants in the above second appeal, have prayed for setting aside of the abatement of appeal and for substitution of the legal representatives of the both the respondent nos. 1 and 2 who died on October 27, 2007 and in the year 1999 respectively. This application was filed on September 05, 2012, long after the appeal stood abated as against both the respondents and the prescribed time for an application for setting aside of abatement of the appeal as against both the respondents expired. Therefore, the appellants applicants have also prayed for condonation of delay in filing this application. The names of the legal representatives of the deceased respondent nos. 1 and 2 have been stated in paragraphs 11 and 13 of this application respectively.
Although, the appellants applicants filed this application with the aforementioned prayers but when this application was taken up of hearing on July 09, 2015 Mr. Md. Yasin Ali, learned counsel appearing for the appellants applicants submitted that due to inadvertence, in the application the applicants omitted to state that the respondent no. 2 since deceased, being the original defendant no. 2 in the suit before the trial Court had filed his written statement but, thereafter, he did not contest the suit and as such in terms of sub-Rule (4) of Rule 4 of Order XXII of the Code of Civil Procedure, hereinafter called as "the Code", the appellants are entitled to be exempted from substituting the legal representatives of the deceased respondent no. 2. For the purpose of incorporating the aforesaid facts, Mr. Ali prayed for leave to file a supplementary affidavit on behalf of the appellants applicants and such prayer was allowed. On August 06, 2015 when this application was taken up for hearing Mr. Ali appearing for the appellants applicants filed a supplementary affidavit disclosing that the decree passed by the trial Court dismissing the suit, against the respondent no. 1 was on contest and ex parte against the respondent no. 2 and that the decree passed by the first appellate Court dismissing the appeal against both the respondents was on contest. Relying upon the statements made in the said supplementary affidavit. Mr. Ali strenuously urged that when the deceased respondent no. 2 only filed his written statement before the trial Court and thereafter did not contest the suit before the trial Court, it is a fit case where this Court should exempt the appellants from substituting the legal representatives of the deceased respondent no. 2. According to Mr. Ali, under sub-rule (4) of Rule 4 of Order XXII the appellants applicants are entitled to be exempted from substituting the legal representatives of the deceased respondent no. 2 who died in the year 1999, no matter that the appeal has already abated as against the respondent no. 2 on the ground that his legal representatives were not substituted in the appeal within the statutory period of limitation. Mr. Ali cited the decision of the Full Bench of this Court in the case of Santosh Kumar vs. Nandalal Chakrapani reported in AIR 1963 Cal 289.
Without prejudice to the above contention, so far as the prayer for condonation of delay in filing this application for setting aside of the abatement of the appeal as against the deceased respondent nos. 1 and 2 is concerned, Mr. Ali submitted that the same has been duly explained in paragraph 17 of the application. The statements contained in paragraph 17 of the application which are set forth to explain the delay in filing this application will be discussed in the later part of this judgment.
However, Mr. Bhaskar Ghosh, learned senior counsel appearing for the legal representatives of the deceased respondent no. 1 submitted that in their application the appellants-applicants have admitted that the respondent no. 1 died on October 27, 2007, the appeal as against the respondent no. 1 stood abated on January 26, 2008 and no application was filed, within the prescribed period of sixty days from the date of the abatement of the appeal as against the respondent no. 1, for setting aside of the abatement of the said appeal against the respondent no. 1 and for substitution of his legal representatives in the appeal. He pointed out that in paragraph 12 of the application, the appellants have admitted that the delay in filing this application for setting aside of the abatement of the appeal as against the deceased respondent no. 1 is four years and seven months. He further submitted that admittedly the respondent no. 2 had died in the year 1999 and in paragraph 14 of this application, the applicants have admitted that there is a delay of about thirteen years in filing this application for setting aside the abatement of the appeal as against the deceased respondent no. 2. According to Mr. Ghosh, the statements made in paragraph 17 of the application do not contain any explanation in the eye of law for condoning the delay in filing this application for setting aside of the abatement of the appeal against both the deceased respondents. With regard to the contention of Mr. Ali that since respondent no. 2, since deceased did not contest the suit before the trial Court, this Court should exercise discretion under sub-rule (4) of Rule 4 of Order XXII exempting the applicants from substituting the legal representatives of the respondent no. 2, Mr. Ghosh submitted that once the appeal stood abated as against the respondent no. 2, the provisions of sub-Rule (4) of Rule 4 of Order XXII cannot be applied in this case. In support of such contention, Mr. Ghosh relied on the decision of the Division Bench of this Court in the case of Nani Gopal Mukherji vs. Panchanan Mukherji and Anr. reported in 59 CWN 394 as also a single Bench decision of this Court in the case of Annapurna Debi vs. Sm. Harsundari Dassi reported in AIR 1975 Cal 12.
In reply, Mr. Ali submitted that the decisions of the Division Bench and the learned Single Judge of this Court cited by Mr. Ghosh reported in 59 CWN 394 and AIR 1975 Cal 12 were on the basis of sub-rule (3) and sub-rule (4) of Rule 4 of Order XXII of the Code as were applicable in Calcutta, before 1976 are no more applicable in view of the insertion of sub-rule (4) of Rule 4 of Order XXII in the main code by way of amendment Act of 1976. In support of such contention, Mr. Ali cited the decision of the Division Bench of this Court in the case of In Re: Nisit Mohan Chatterjee reported in 1997 CWN 636 and another decision of a learned Single Judge of this Court in the case of Sk. Ladla vs. Asamuddin Ansari reported in ILR (1999) 1 Cal 97.
Since Mr. Ali contended that in the instant case, the deceased respondent no. 2 did not contest the suit before the trial Court, the appellants are entitled to claim exemption under sub-rule (4) of Rule 4 of Order XXII from substituting the legal representatives of the deceased respondent no. 2, I am of the opinion that such contention of Mr. Ali should be decided first.
In the application, the applicants have stated that the respondent no. 2 died in the year 1999 and his legal representatives were not substituted in the appeal within the prescribed period of 90 days and consequently, the appeals stood abated as against the respondent no. 2; no application was filed within the prescribed period for setting aside of the abatement of the said appeal as against the respondent no. 2. In terms of Rule 11 of Order XXII of the Code, all the provisions contained in the said order are also applicable in appeals under Order XLI of the Code and consequently in terms of Order XLII of the Code, the provisions of Order XXII are also applicable in this second appeal. Order XXII Rule 11 CPC provides that in the application of Order XXII to appeals, as far as may be the words "plaintiff", "defendant" and "suit" shall respectively include an appellant, a respondent and an appeal. Therefore, even in a first or second appeal, the appellate court can exercise discretion under sub-rule (4) of Rule 4 of Order XXII of the Code to exempt the appellant from the necessity of substituting the legal representatives of any defendant respondent who did not file a written statement before the trial Court or who, having filed it, has failed to appear and contest the suit before the trial Court and judgment may, in such case, be pronounced against the said deceased respondent which shall have the same force and effect as if it has been pronounced before the death took place. No doubt from the records of this case, it is evident that the trial Court had dismissed the suit, as against the deceased respondent no. 1 on contest and as against the deceased respondent no. 2 ex parte. However, the decree of the first appellate Court records that three appeals arising out of three separate decrees passed by the trial Court, in three separate suits on common question of law and fact were rejected against all the respondents, including the respondent no. 2, since deceased on contest. From the said common decree of the first appellate Court, the appellants have filed three separate appeals including the instant second appeal and Mr. Ali admitted that the notice of above second appeal was also served upon the respondent no. 2 during his lifetime. Thus, although the trial Court decree of dismissal of the suit was ex parte as against the respondent no. 2, since deceased but the first appellate Court dismissed the three appeals on contest with cost against all the respondents including respondent no. 2, since deceased.
The opening words used in sub-section (4) of Section 4 of Order XXII of the Code are "The Court whenever it thinks fit may exempt ........." Therefore, a bare reading of the said provision makes it abundantly clear that power of the Court to exempt the appellant from substituting the legal representative(s) of a deceased respondent is a discretionary power and in a given case, the Court can refuse to exercise such discretion. As already found, although the decree of dismissal of the suit by the trial Court was ex parte as against the respondent no. 2, since deceased but the lower appellate court passed the decree of dismissal against all the respondents, including the deceased respondent no. 2 on contest. In this second appeal the service of notice of appeal on the respondent no. 2 was not dispensed with and the notice of appeal was duly served upon respondent no. 2 during his life time. Thus, a right had accrued to the respondent no. 2 during his life time to contest the second appeal on a pure question of law. Thus, after the death of the respondent no. 2, his legal representatives, if they were substituted within the prescribed period of limitation, also had the right to contest the second appeal on questions of law. Therefore, in these facts, I am unable convince myself to exercise the discretion under sub-rule (4) of Rule 4 of Order XXII of the Code as prayed for by the appellants- applicants. None of the decisions cited by Mr. Ghosh in the case of Nani Gopal Mukherji (supra) and Annapurna Devi (supra) nor the decisions cited by Mr. Ali in the case of Nisit Mohan Chatterjee (supra) and Sk. Ladla, where the Courts were concerned with the applicability of sub-Rule (4) of Rule 4 of Order XXII before the trial Court has any application in the facts of this case. So far as the decision cited by Mr. Ali of the Full Bench of this Court in the case of Santosh Kumar Mondal (supra), the same is an authority with regard to effect of the death of one of the appellants in pending appeal and as such the said decision has no application in this case.
In this application filed on September 05, 2012, a prayer has been made for condoning the delay in filing the application for setting aside of the abatement of the appeal as against both the deceased respondent nos. 1 and 2. In paragraph 16 of the application the appellants applicants have admitted that the delay in filing this application for setting aside of the abatement of the appeal as against the deceased respondent no. 1 is for four years and seven months and the delay in the case of the respondent no. 2 is for thirteen years. This application has been verified by an affidavit affirmed by the appellant no. 5, Brajo Durlav Dhar. The explanation set forth by the applicants in paragraph 17 this application is that it was Bholanath Dhar, since deceased one of the appellants in all the three appeals arising out of the common judgment and decree passed by the learned first appellant Court, in three eviction suits, used to look after all the three second appeals including this appeal. After the death of Bholanath Dhar, it was Jagat Durlav Dhar, the deceased appellant no. 4, who used to look after all the affairs of the three appeals including the instant appeal. The said Jagat Durlab Dhar died in September 24, 2002 and thereafter it was the original appellant no. 6 Deb Durlav Dhar, used to look after the affairs of the instant appeal. However, due to his illness the said Deb Durlav Dhar did not do anything to look after the proceedings in the appeal or to take any step for substitution of the legal heirs of the respondent nos. 1 and 2. Thus, the entire responsibility for the fault has been put on Deb Durlav Dhar, since deceased, that due to illness he did not take any step for substitution of the legal heirs of the deceased respondents.
Mr. Ghosh, learned senior counsel appearing for legal representatives of the deceased respondent no. 1 strenuously contended that it is the settled principle of law that the delay in filing an application for setting aside of the abatement of the appeal can be condoned provided the applicants disclose "sufficient cause" within the meaning of Section 5 of the Limitation Act, that is, if the applicants are able to substantiate that there were sufficient reasons which prevented them from filing these applications and there is no act of negligence or lack of diligence, on the part of the appellants applicants but since the appellants applicants have failed to establish such "sufficient cause" this application should be dismissed.
I have heard and considered the submission of both Mr. Ali and Mr. Ghosh, learned counsel appearing for the respective parties in this application.
Rule 4 of Order XXII prescribes the procedure in case of death of a respondent. Sub-rule (1) of Rule 4 provides that where a respondent dies and the right to sue does not survive against the surviving respondents alone or where the sole respondent dies and the right to sue survives, the court on an application made in that behalf, shall cause the legal representative of the deceased respondent to be made a party to the appeal and shall proceed with appeal. Sub-rule (3) provides that where no application is made to cause the legal representative of the deceased respondent to be made party, the appeal shall abate as against the deceased respondent.
Under Article 120 of the Limitation Act, 1963, the period of limitation to have the legal representative of a deceased respondent made a party to 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 applicant satisfies the court that he had sufficient cause for not making the application within such period.
Sub-rule (5) of Rule 4 of Order XXII 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 applies 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, on the ground that he had by reason of such ignorance, sufficient cause for not making the application within the period specified in 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.
Although the term "sufficient cause" has to receive liberal construction, the explanation has to be reasonable and plausible and the party should show that besides acting bona fide it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient, to see whether it could have been avoided by the party by exercise of due care and attention. This view is fortified by the decision of the Supreme Court in the case of Balwant Singh vs. Jagdish Singh reported in (2010) 8 SCC 685.
In the said case Balwant Singh (supra), the Supreme Court held that the explanation for condoning the delay in filing an application for setting the abatement of appeal against a deceased respondent has to be reasonable or plausible, so as to persuade the Court to believe that the explanation offered is not only true, but is worthy of exercising jurisdiction discretion in favour of the applicant but in the instant case it.
In the instant case the appellants-applicants, the deponents of this application and the deceased appellant no. 6 Deb Durlav had the knowledge of the death of the respondent nos. 1 and 2, but a case has sought to be made out that due to illness of Deb Durlav Dhar he took no step for substitution of their legal representatives in the appeal. This statement made in this application about the illness of Deb Durlav Dhar, since deceased, or his incapability to look after the proceeding of this appeal is belied by the fact that the appellant no. 6, Deb Durlav Dhar during his life time filed an application being CAN No. 6914 of 2001 for substitution of the legal heirs of the original appellant no. 3 who died on 16th April, 2000. The said application being CAN No. 6914 of 2001 was verified by an affidavit affirmed by Deb Durlav Dhar, since deceased on August 1, 2001. The respondent no. 2 died in the year 1999 and the respondent no. 1 died on October 07, 2007. Deb Durlav died on October 07, 2010. The documents disclosed in the application reflects some illness of Deb Durlav Dhar, since deceased between the years 1998 and 2000. No document has been disclosed to substantiate any illness of Deb Durlav Dhar, since deceased, after the year 2000. Thus, I find it difficult to accept the case of the applicants that the delay in filing this application for setting aside of the abatement of the appeal as against the deceased respondents can be attributed to Deb Durlav Dhar since deceased. It is further alleged that upon the death of the appellant no. 6, Deb Durlav Dhar no one of the remaining appellants of the pending appeals was entrusted to look after the appeals, including the present appeal. In the application it is not the case of the applicants that either the deceased Deb Durlav Dhar or the appellant no. 5, being the deponent of this application, were not aware of the death of the respondents on October 07, 2007 and in the year 1999. It is also alleged by the applicants that in or about March, 2012 Jayati Dey, the daughter of the deceased appellant no. 4 came to know that the respondents were trying to develop the suit premises by entering into an agreement with some developers and thereafter she tried to contact the surviving appellants of the pending appeals and necessary steps were taken for preparation and filing of this application. From the statements made in this application it is evident that the said Jayati Dey was well aware of the factum of the pendency of the above appeal. Further, when the respondent no. 2 had already died in the year 1999 and the respondent no. 1 had died on October 27, 2007, all within the knowledge of the appellant no. 5 deponent, there is no scope to accept the case of the appellants applicants that in March, 2012 Jayati Dey came to know that the respondents were trying to develop the suit property. The only other explanation put forth in this application is that the applicants were not aware of the requirement of law that steps were required to be taken for the substitution of the legal representatives of the said deceased appellants within the period of limitation and they had to file even the application for setting aside of the abatement of the appeal in so far as the said two deceased appellants within the period of limitation. In the instant case, the conduct of the appellants applicants are nothing short of negligent and the explanations put forth for condonation of delay as already discussed are not plausible. It is not the case of the appellants applicants that they are uneducated people. The appellants applicants are not rustic people residing far away from a city of Kolkata. It is not their case that they did not know the Advocate conducting the litigation on their behalf of that they were misled by their Advocate. It was the sheer negligence of the deceased appellants and the present applicants not to inform their Advocate of the death of both respondents. Thus, the explanation put forwards by the appellants applicants that they were not aware of the legal requirement of substitution of the legal representatives of both the deceased respondents within the prescribed time does not appear to be plausible or bona fide.
For all the foregoing reasons, I find no merit in this application. Accordingly C.A.N. 8794 of 2012 stands rejected. Consequently it is also recorded that the entire appeal being S.A. 228 of 1981 against the respondent nos. 1 and 2 have abated. Consequently, the appeal being S.A. 228 of 1981 stands dismissed.
Considering the circumstances of the case, there will be no order as to costs.
Urgent certified Photostat copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
[Ashis Kumar Chakraborty, J.]