Madhya Pradesh High Court
Hukumchand vs Biharilal (Deceased By Lrs.) And Ors. on 4 March, 1993
Equivalent citations: AIR1993MP145, 1994(0)MPLJ358, AIR 1993 MADHYA PRADESH 145, (1994) MPLJ 358
JUDGMENT S.K. Dubey, J.
1. The defendant aggrieved of the order dated 9-7-1992 passed in Civil Appeal No. 29/1991 by the District Judge, Vidisha, refusing to set aside the order of abatement of the appeal, has preferred this appeal under Order 43, Rule 1(k), Civil P.C., for short, the 'C.P.C.'
2. A preliminary objection has been raised by Shri K. B. Chaturvedi, learned counsel for the respondents/ plaintiffs that in view of Section 104, C.P.C. the order of refusing to set aside the abatement, passed in the appeal, cannot be construed to have been passed in exercise of the original jurisdiction; therefore, no appeal will lie under Order 43 Rule 1(k). Counsel pressed into service Sat Pal v. Budha Lalji, AIR 1968 Punj & Har 70; Babubhai Ratanchand v. Motilal, AIR 1974 Guj 152 and C. Kalahasti v. P.C.M. Chetti, AIR 1975 Mad 3.
3. On the other hand, Shri M. M. Kaushik, learned counsel for the appellant/ defendant, submitted that Order 43, Rule 1(k) has to be interpreted along with Order 22, Rule 11, C.P.C. and, accordingly, the word 'suit' under Order 43, Rule 1(k) has to be interpreted so as to include an appeal and, therefore, an appeal shall lie against the order passed under Order 22, Rule 9, C.P.C., refusing to set aside the abatement of the appeal. Reliance was placed on Ganpat Bapuji v. Shri Maruti Deosthan, AIR 1952 Nagpur 181; Mir Walid Ali v. Fagoo Mandal, AIR 1938 Pat 125 and Alphonso Nazareth v. Xavier Dias, AIR 1971 Mys 79. It was also submitted that an appeal is continuation of the suit; therefore, if an order is passed in an appeal refusing to set aside the abatement, an appeal will lie.
4. It is the appeal before the first appellate Court had abated for not taking steps for bringing the legal representatives in time. Though an application for setting aside the abatement and for substitution of the legal representatives was filed under Order 22, Rule9, C.P.C. read with Section 5 of the Limitation Act, it was dismissed as barred by time. In view of Rule 11 of Order 22, the other provisions of Order 22 have been made applicable. In Rule 11 of Order 22, the word 'plaintiff shall be held to include appellant, the word 'defendant' a respondent. and the word 'suit' an appeal. On account of this Rule, the provisions of Rr. 3 and 4 are applicable to appeals and Rule 9 enables a Court to set aside abatement of an appeal if it is satisfied that the appellant was prevented by sufficient cause from continuing the appeal. An order refusing to set aside abatement or of dismissal of a suit, is made applicable under Order 43, Rule 1(k). Order 43, Rule 1(k) has to be interpreted along with Rule 11 of Order 22, C.P.C., and, accordingly, the word 'suit' in Order 43, Rule 1(k) includes an appeal. So interpreted, an appeal shall lie under Order 43, Rule 1(k) against an order under Order 22, Rule 9, C.P.C. refusing to set aside the abatement of an appeal. That is the view of this Court in case of Ganpat Bapuji (AIR 1952 Nagpur 181) (supra), relying on the view taken by Patna High Court in Mir Wajid Ali's case (AIR 1938 Pat 125) (supra). The view of the Mysore High Court in Alphenso Nazareth's case(AIR 1971 Mys 79) (supra) is also in line.
5. The Punjab and Gujarat High Courts have taken a different view, but it is not necessary for me to deal with those cases, as the Supreme Court in case of Madan Naik (dead) by L.Rs. v. Mst. Hansubala Devi, AIR 1983 SC 676, while laying down that an order passed in appeal under Order 22, Rule 9(2), C.P.C., refusing to set aside abatement, is specifically appealable under Order 43, Rule 1(k), has observed in paras 5 and 6 thus :
"5. Order 22, Rule 11 of the Civil P.C. read with Order 22, Rule 4 makes it obligatory to seek substitution of the heirs and legal representatives of deceased respondent if the right to sue survives. Such substitution has to be sought within the time prescribed by law of limitation. If no such substitution is sought, the appeal will abate. Sub-rule (2) of Rule 9, Order 22 enables the party who is under an obligation to seek substitution to apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit which would include an appeal, the Court shall set aside the abatement. Now where an application for setting aside an abatement is made, but the Court having not been satisfied that the party seeking setting aside of abatement was prevented by sufficient cause from continuing the appeal, the Court may decline to set aside the abatement. Then the net result would be that the appeal would stand disposed of as having abated. It may be mentioned that no specific order for abatement of a proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessary under Order 22, Rule 9, C.P.C., for setting aside the abatement.
6. When an appeal is disposed of having abated and thereafter an application is made for setting aside abatement of appeal, an order refusing to set aside abatement is appealable as an order under Order 40, Rule 1(k), C.P.C. There being a specific provision conferring a right of appeal, one can resort to the same."
6. As a result of the above discussion, the preliminary objection has no merit and is rejected.
7. Coming to the merits of the case, the order of refusing to set aside the abatement, cannot be sustained, as the first appellate Court while considering the evidence, raised an inference, which was not deducible. The appellant was residing in Vidisha, while the landlord who died during the pendency of the appeal, was residing in an interior village Dhaniakhedi. It is true that one of the sons of the landlord was the neighbour of the appellant and, on information about the death of the landlord, there was some deploration and weeping in his house, but that itself will not give any knowledge of the death of the landlord to appellant, as the appellant was not in visiting terms with the deceased's son because of litigation. There is no evidence that the appellant went to the house of deceased's son and asked about deploration, and on that, the landlord's son Laxmansingh and his family members informed that Laxman-singh's father was dead. On the other hand, in the reply a stand has been taken that a letter was sent to the appellant to attend Ganga-pujan on 13th day, but the receipt of the said letter having been specifically denied and sending of the same was not proved, to the tenant, the knowledge about the death of the landlord cannot be imputed by any stretch of imagination. Moreover, the deceased landlord/respondent was represented by a counsel, but as required under Order 22, Rule 10-A, the counsel for the respondent did not inform the Court about the fact of death, so that the Court could have given a notice of the death to the appellant. True, such an information does not give any extension of period of limitation, but, certainly, if this information could have been given in Court, that could have been a relevant fact in determining whether there was a sufficient cause or not. Under Section 5 of the Limitation Act to condone delay in applying for setting aside the abatement which operates from the time of the death.
8. The other important fact in this case is that the appellant is a poor illiterate labourer; therefore, in the circumstances, it would not be fair to presume on the evidence on record, that the appellant had the knowledge of the death of the respondent/landlord and that his legal representatives had to be brought on record within the prescribed time. In such circumstances the Supreme Court in case of Ram Sumiran v. D.D.C., AIR 1985 SC 606, has ruled that the ends of justice require that an application for bringing legal representatives of the deceased should be allowed.
9. While considering the expression 'sufficient cause' in Section 5 of the Limitation Act, the Supreme Court in case of Collector, Land Acquisition, Anantnag v. Katiji, AIR 1987 SC 1353, has laid down that a liberal approach has to be adopted so as to do substantial justice, instead of technical consideration, as cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay.
10. There is no finding that the appellant acted carelessly or negligently, or there was a gross misconduct on his part; therefore, in the opinion of this Court, in the circumstances of the case, the appellate Court has interpreted the expression 'sufficient cause' with a too technical approach resulting in injustice to the appellant. Therefore, the order cannot be maintained, has to be set aside and is hereby set aside.
11. Accordingly, the appeal is allowed; as a consequence of that, the application for setting aside the abatement is also allowed. The legal representatives of the deceased respondent/landlord are ordered to be brought on record. Let the matter go back to the first appellate Court, where the appellant shall amend the memo of appeal. The parties shall appear before the said Court on 14-4-1993, and for that no fresh notices shall be issued to the parties, as they have been noticed here through their counsel. Office shall see that the records of the courts below reach the first appellate Court on or before the date fixed. The first appellate Court is further directed to dispose of the appeal finally within a period of three months from the date of the appearance of the parties.
12. No costs.