====================================================== 1. Gango Rai. 2. Ramautar Rai. 3. Nagin Rai. 4. Ram Kumar Rai v. 1. Mahadev Yadav son of Late Krishna Chandra Yadav. 2
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8750 of 2013 In C.R. 960 of 2009 ====================================================== 1. Gango Rai. 2. Ramautar Rai. 3. Nagin Rai. 4. Ram Kumar Rai all sons of Late Niklal Rai residents of villge- Narayanpur, police Station-Kusheshwar Asthan, District-Darbhanga Plaintiff…..Appellants.... .... Petitioner/s Versus 1. Mahadev Yadav son of Late Krishna Chandra Yadav. 2. Smt. Amila Devi wife of Mahadev Yadav. 3. Mukeash Yadav. Minor son of Mahadev Yadav. 4. Rakesh Yadav Minor son of Mahadev Yadav. All residents of village- Jhajhara tola Baharva, police station-kusheshwar Asthan P.O. Jhajhara, District-Darbhanga …….Defendant 1st Set….O.P.... .... Respondent/s. 5. Ganesh Yadav son of Late Paltu Yadav. 6. Dev Narayan Yadav son of Late Vanshidhar Yadav. 7. Bino Yadav son of Late Bijal Yadav. Serials nos. 5 to 8 are residents of village-Jhajhara, Police Station-Kusheshwar Asthan, P.O. Jhajhara, District-Darbhanga ……..Defendants 2nd Set ….O.P. Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Jagdish Prasad Singh, Adv. Mr. Bimal Kumar, Adv. For the Respondent/s 1st Set : Mr. Ajay Kumar Singh, Adv Mr. Sitaram Yadav, Adv. For Respondents 2nd Set : Mr. Shashinath Jha, Adv. Mr. Ram Shankar Singh, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 9 19-11-2013 Heard learned counsel for the petitioners, learned counsel appearing for the respondents no. 1 to 4 and learned 2
Legal Reasoning
Patna High Court CWJC No.8750 of 2013 (9) dt.19-11-2013 2 / 9
Legal Reasoning
counsel for the respondents no. 5 to 8. The present application under Article 227 of the Constitution of India is directed against the order dated 24.04.2009 passed by the Sub-Judge – I, Benipur in Misc. Case No. 03 of 2008 arising out of Title Suit No. 03 of 2006 by which the petition filed by the petitioners for substitution of heirs of opposite party no. 6 has been rejected. The petitioners were plaintiff in Title Suit No. 03 of 2006 which was filed for declaration of title and confirmation of possession over Schedule - 1 land excluding Schedule 1 - Kha and also that the defendants 1st set have no right to interfere in peaceful possession of the plaintiffs over the same, declaring certain sale deeds in favour of defendant no. 1 to be null and void and non-binding of the plaintiffs and that they be restrained from interfering in the Schedule - 1 land and other ancillary reliefs. The suit was dismissed for default on 06.05.2008. Thereafter the original plaintiffs (petitioners) filed Misc. Case No. 03 of 2008 under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’) for setting aside the order of dismissal. In the said petition, the petitioners filed an application for substituting the opposite party no. 6, who had died on 15.04.2008. The plea was 3 Patna High Court CWJC No.8750 of 2013 (9) dt.19-11-2013 3 / 9 taken that the death of the said defendant was not known to the petitioners and thus the miscellaneous case was filed including the person who had died prior to filing of the case. The specific case of the petitioners was that since the original petitioner no. 1, who is the mother of the other petitioners, was an old lady and the other petitioners were living outside their native village for earning their livelihood, they could come to know about the death of the opposite party no. 6 only on 28.09.2008 when they had come to the village during the Durga puja festival and thus the application for substituting the heirs was filed on 29.09.2008. The petitioners filed an application for the substitution of the heirs of the deceased opposite party no. 6 along with a petition under Section 5 of the Limitation Act, 1963 for condoning the delay in filing of the petition for substitution. The respondents no. 1 to 4, that is, defendants 1st set filed their rejoinder opposing the said prayer. Learned counsel for the petitioners submits that the petition was filed without specifying any provision of law and thus the Court was required to consider the application in terms of the statutory provisions of law under the Code. He further submits that the Court has rejected the application of the petitioners on the ground that the petition filed by the petitioners was under Order XXII of the Code erroneously as it is not 4 Patna High Court CWJC No.8750 of 2013 (9) dt.19-11-2013 4 / 9 applicable in the situation as it is for the substitution of the person who had died during the proceeding, which was not the case here. The Court has also gone on the presumption that the petitioners should have filed an application to strike off the name of the deceased opposite party no. 6 in the miscellaneous case as no relief had been sought against him and he was a proforma defendant. Learned counsel submits that when the suit was dismissed, a miscellaneous case was filed for restoration under Order IX Rule 9 read with Section 151 of the Code and at that time they were not aware that the defendant no. 6 in the suit had died. Thus, under misconception he was also made opposite party no. 6 on the basis of his position in the suit. He submits that the same was bonafide mistake/error and the moment the petitioners became aware of the actual situation, a petition was filed for substituting the deceased opposite party no. 6 with his legal representatives/heirs. Learned counsel submits that the Court has also erroneously held that no petition was filed for setting aside the abatement. It is submitted that once the suit itself was dismissed for default, there cannot be any question of filing of any application for setting aside of the abatement unless the suit was first revived/restored. In the present case unless the miscellaneous case itself was allowed and the suit restored, there 5 Patna High Court CWJC No.8750 of 2013 (9) dt.19-11-2013 5 / 9 could not have been any occasion for filing of any application for setting aside the abatement and thus non filing of any petition for setting aside of abatement is neither relevant nor can be held against the petitioners. Learned counsel in support of his contention relies upon a decision of the Hon’ble Supreme Court in the case of Karuppaswamy v. C. Ramamurthy reported in AIR 1993 S.C. 2324 as well as a decision of the Himachal Pradesh High Court in the case of Mahabir Prasad v. Des Raj reported in AIR 1981 H.P. 58. Learned counsel appearing for the respondents no. 5 to 8 supports the petitioners and submits that the Court should have also kept in mind the provision under Section 153 of the Code and should have allowed the names of the legal representatives of the deceased opposite party no. 6 to be impleaded by amending the cause title of the miscellaneous case. He relies upon a decision of the Himachal Pradesh High Court in the case of State v. Dhuru Ram reported in AIR 1981 H.P. 34 for such proposition. Learned counsel appearing for the respondents no. 1 to 4 opposes the writ application and submits that the petitioners are trying to enlarge the scope of the application inasmuch as they had not argued before the Court below for consideration of 6 Patna High Court CWJC No.8750 of 2013 (9) dt.19-11-2013 6 / 9 their case under Section 153 of the Code. It is submitted that under Article 227 of the Constitution of India, the scope for interference is extremely limited and should be exercised to consider whether the order was vitiated due to want of jurisdiction or the trial Court had exceeded its jurisdiction or the order passed by it has resulted in failure of justice. For such proposition, he relies upon a decision of the Hon’ble Supreme Court in the case of Kokkanda B. Poondacha v. K.D. Ganapathi reported in AIR 2011 S.C. 1353, the relevant being at paragraphs 8, 9 and 10. Upon considering the rival contentions, this Court finds that the order impugned cannot be sustained. Firstly, coming to the jurisdiction of this Court under Article 227 of the Constitution, in terms of the order of the Hon’ble the Supreme Court itself in the case of Kokkanda B. Poondacha (supra), it is clear that the exercise of supervisory jurisdiction can be in the case where the error is manifest and apparent on the face of the proceeding such as when it is based on clear ignorance or utter disregard of the provisions of law and also when grave injustice or gross failure of justice has occasioned thereby. In the present case, the Court has not appreciated the statutory provisions as well as the scheme of the Code so as to 7 Patna High Court CWJC No.8750 of 2013 (9) dt.19-11-2013 7 / 9 consider the matter in its proper perspective. In view of the same, this Court finds that in the present case, interference can be made in the impugned order both on the ground that the Court had acted in ignorance of law and also that it has resulted in failure of justice. Further, coming on merits, the Court has erroneously presumed that the petition filed by the petitioners was under Order XXII of the Code when clearly neither such provision was mentioned in the petition nor was argued on behalf of learned counsel for the petitioners. The observation of the Court that no petition was filed for setting aside the abatement is equally erroneous for the simple reason that the same could have been filed only when a suit had stood abated and not when the suit had been dismissed for default. The question of abatement would come once the suit stood restored and then the Court could have considered whether it was fit to proceed or had stood abated. Even on the question of abatement, the same could have at best been with regard to only the person who had died and was not substituted and not with regard to the entire suit. However, the question is not germane in the present case. As far as the Court holding that a petition should have been filed to strike off the name of the opposite party no. 6 is concerned, the same was beyond the jurisdiction as it is for the party to decide whom to 8 Patna High Court CWJC No.8750 of 2013 (9) dt.19-11-2013 8 / 9 implead and whom not to implead and the Court cannot suggest as to what a party should do or not do. Even with regard to the observation that no relief was claimed against the said deceased person and thus he was a proforma defendant, the same cannot be held in such a casual manner as it is either for the party itself to come and pray before the Court for deleting him from the list of defendants or such finding can be recorded only after the parties have had an opportunity to address the Court on such point. The Court itself in such a proceeding cannot give a finding that the said deceased - defendant was only a proforma defendant. The Court has also erroneously held that no case can be filed against this deceased person. This finding is not correct in view of Section 153 of the Code which clearly provides for a situation where under a bonafide mistake, something may have been done by a party which can be corrected with the permission of the Court by way of amendment. Thus, the objection raised by the learned counsel for the respondents no. 1 to 4 with regard to the scope of interference under Article 227 of the Constitution in the present proceeding as well as the petitioners not having specifically raised the plea of their application being considered under Section 153 of the Code, is not sustainable. The decisions relied upon by leaned counsel for the petitioners as well as the 9 Patna High Court CWJC No.8750 of 2013 (9) dt.19-11-2013 9 / 9 learned counsel for the respondents no. 5 to 8 also supports the case of the petitioners.
Decision
For the reasons aforesaid, the order dated 24.04.2009 passed by the Sub Judge - I, Benipur in Misc. Case No. 03 of 2008 arising out of Title Suit No. 03 of 2006 is set aside. The application filed for substitution of the opposite party no. 6 (defendant no. 6) in the original suit, stands allowed. The application, accordingly, stands disposed off. The Miscellaneous Case No. 03 of 2008 shall now proceed in accordance with law. In view of the application being finally disposed off today, no separate order is required to be passed on I.A. No. 5977 of 2009. Prakash/- (Ahsanuddin Amanullah, J)