SMT v. Kamlesh

5 - Smt. Sumitra W/o. Late Butan @ Rameshwar, Aged About 65 Years R/o Near Mission Hospital, Tahsil Ambikapur, District Surguja Chhattisgarh Butan @ Rameshwar S/o. Late Years, R/o. Kedarpur, Bhatthi Road, Ambikapur, Police Station And Tahsil Ambikapur, District Surguja Chhattisgarh (Since Died Through Legal Heirs) ... Respondents/ Defendants For Petitioners For Respondents : Shri Anurag Singh, Advocate. : Ms. Priyanka Mehta, Advocate. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

24.10.2024 1) The petitioners/ plaintiffs have filed this petition challenging the order passed by the learned Third Additional District Judge, Ambikapur, District Sarguja in Miscellaneous Civil Appeal No.28 of 2019 dated 22.6.2022 whereby applications moved under Order 22 Rule 4 of CPC, Order 22 Rule 9 of CPC and Section 5 of the Limitation Act were rejected. 2) The facts of the present case are that the plaintiffs filed a civil suit claiming therein reliefs for declaration of title, possession and mandatory injunction against the original defendant Butan @ Rameshwar in the year 1985. He died after filing of civil suit and his legal representatives, namely, Satyanarayan, Nanhu Mahto, Ramdhan Mahto and Budhni were brought on record. Satyanarayan also died on 4.5.2013 and an application under Order 22 Rule 3 was moved on 6.8.2013. Learned trial Court rejected the application under Order 22 Rule 3 of CPC on

20.11.2013. Thereafter, Miscellaneous Appeal No.12 of 2013 3 was filed under Order 43 Rule 1A of CPC. The original defendant, namely, Butan died on 12.2.2014. Notice was issued to the original defendant and after service of notice, the petitioners came to know that Butan died on 12.2.2014, therefore, the application under Order 22 Rule 4 of CPC was moved and the same was allowed by the learned Appellate Court. Miscellaneous Appeal No.12 of 2013 was dismissed vide order dated 13.3.2015. The civil suit filed by the late Kisun was dismissed for want of prosecution on 10.7.2015. An application under Order 9 Rule 9 of CPC was moved by Nanhu, one of the legal representatives of Kisun on 4.8.2015. The application under Order 9 Rule 9 of CPC was rejected on 4.10.2019 and against that order, the plaintiffs preferred a Miscellaneous Appeal No. 28 of 2019 and in that case, only the original defendant - Butan was arrayed as respondent. After service of notice, the plaintiffs came to know that Butan is no more and therefore, applications under Order 22 Rule 4 of CPC, Order 22 Rule 9 of CPC and Section 5 of the Limitation Act were moved before the learned Court below. The legal representatives of Butan filed a reply and stated that the plaintiffs had knowledge of the death of Butan prior to the filing of Miscellaneous Appeal. It is stated that Miscellaneous Appeal No.12 of 2013 was filed by the plaintiffs and in that appeal also, the application under Order 22 Rule 4 of CPC for the substitution of legal representatives of Butan was moved and the same was also allowed. It is also stated that in another suit, an application under Order 39 Rule 1 & 2 of CPC was moved which was rejected and thereafter, another 4 application under Order 39 Rule 2A of CPC was moved which was dismissed for want of prosecution and for restoration of that application, a Miscellaneous Civil Suit No.15 of 2016 was filed wherein it is pleaded by the plaintiffs that Butan is no more and in that miscellaneous civil suit, the legal representatives of Butan were impleaded as respondents. Learned Court below vide order dated 22.6.2022 rejected the applications moved by the petitioners under Order 22 Rule 4 of CPC, Order 22 Rule 9 of CPC and Section 5 of Limitation Act on the ground that the plaintiffs had not approached the Court with clean hands and bonafide intent. It was further held that the provisions of Order 22 Rule 4 of CPC would not apply as the original defendant had not died during the pendency of the miscellaneous appeal and the miscellaneous appeal was filed against a dead person. 3) Learned counsel for the petitioners/plaintiffs would submit that the learned Court below has rejected the applications for substitution of legal representatives and setting aside the abatement on technical grounds. He would further submit that in one of the proceedings, an application moved under Order 22 Rule 4 of CPC in Miscellaneous Civil Appeal No. 12 of 2013 for bringing legal representatives of Butan was allowed. He would also submit that miscellaneous civil appeal had arisen from the same civil suit. He would further contend that in Miscellaneous Appeal No. 28 of 2019, notice was issued to the original defendant Butan and after service of notice it was informed that he is no more and immediately thereafter, applications were moved. He would also contend that the case has not been 5 decided on merits, therefore, the order passed by the learned Court below may be set aside. He has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of N. Jayaram Reddy and Another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, (1979) 3 SCC

578. 4) On the other hand, learned counsel for the respondents would oppose the submissions made by counsel for the petitioners. She would submit that despite knowledge of the death of Butan, the original defendant, the plaintiffs failed to move an application for substitution of his legal representatives. She would further submit that in another suit it is admitted by the plaintiffs that in the year 2016, Butan was no more and his legal representatives were impleaded in Miscellaneous Civil Suit No.15 of 2016 and thus, it cannot be said that the plaintiffs had no knowledge of the death of Butan. She would further contend that Miscellaneous Appeal No. 28 of 2019 was filed against a dead person despite knowledge of the death of Butan, therefore, the learned Court below rightly rejected the applications moved by the plaintiffs/ petitioners. 5) I have heard learned counsel for the parties and perused the documents present on the record. 6) The Hon’ble Supreme Court in the matter of N. Jayaram Reddy (supra) in paragraph 39 held as under:- “39. The following conclusions emerge from these decisions: (1) If all legal representatives are not impleaded after diligent search and some are brought on record and if the Court is satisfied that the estate is adequately represented 6 meaning thereby that the interests of the deceased party are properly represented before the Court, an action would not abate. (2) If the legal representative is on record in a different capacity, the failure to describe him also in his other capacity as legal representative of the deceased party would not abate the proceeding. (3) If an appeal and cross-objections in the appeal arising from a decree are before the appellate court and the respondent dies, substitution of his legal representatives in the cross-objections being part of the same record, would enure for the benefit of the appeal and the failure of the appellant to implead the legal representatives of the deceased respondent would not have the effect of abating the appeal but not vice versa. (4) A substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order would enure for the subsequent stages of the suit on the footing that appeal is a continuation of a suit and introduction of a party at one stage of a suit would enure for all subsequent stages of the suit. (5) In cross-appeals arising from the same decree where parties to a suit adopt rival positions, on the death of a party if his legal representatives are impleaded in one appeal it will not enure for the benefit of cross-appeal and the same would abate.” 7) In the present case, the original plaintiffs filed a civil suit seeking relief of declaration of title, possession and mandatory injunction against the sole defendant, namely, Butan. It is also not in dispute that the parties are residing in the same locality. During the pendency of the civil suit, Kisun died and his legal representatives were brought on record. One of the legal representatives, namely, Satyanarayan also died on 4.5.2013 but the application for substitution of his legal representatives could not be brought within limitation, therefore, the application moved under Order 22 Rule 3 of CPC was rejected by the learned trial Court and that order was challenged by filing Miscellaneous Appeal No. 12 of 2013 and in that proceeding, 7 legal representatives of original defendant Butan, who died on

12.2.2014, were brought on record. Ultimately, Miscellaneous Appeal No. 12 of 2013 was dismissed on 13.3.2015. The suit filed by the plaintiffs was dismissed for want of prosecution on

10.7.2015. One of the legal representatives of Kisun, namely, Nanhu Mahto moved an application under Order 9 Rule 9 of CPC on 4.8.2015 and that application was rejected by the learned trial Court on 4.10.2019. Against that order, Miscellaneous Appeal No. 28 of 2019 was preferred before the learned Court below impleading Butan @ Rameshwar as the sole respondent. Notice was issued to the sole respondent. As per the service report, it was informed that Butan is no more. The petitioners moved applications under Order 22 Rule 4 of CPC, Order 22 Rule 9 of CPC and Section 5 of the Limitation Act assigning reason that they had no knowledge of the death of Butan. The learned trial Court rejected the application holding that despite knowledge of the death of Butan, the application for substitution of legal representatives could not be moved within limitation. It was also held that the miscellaneous appeal was filed against a dead person. 8) In the matter of N. Jayaram Reddy (supra), the Hon’ble Supreme Court has held that if an application filed for substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order has been allowed, it would ensure that the subsequent stages of the suit on the footing that appeal is a continuation of a suit. In the present case also the application moved by the plaintiffs under 8 Order 22 Rule 4 of CPC was allowed by the learned District Court in Miscellaneous Appeal No.12 of 2013 though ultimately that Miscellaneous Appeal was dismissed but the legal representatives of Butan @ Rameshwar were brought on record. Due to a mistake, the plaintiffs/ petitioners filed a miscellaneous appeal impleading Butan @ Rameshwar as respondent and after service of notice, they moved an application under Order 22 Rule 4 of CPC for substitution of legal representatives and for setting aside the abatement along with an application for condonation of delay. It cannot be held that the act of the plaintiffs/ petitioners was deliberate. In another proceeding, the legal representatives of defendant Butan were impleaded as defendants. The lis should be decided on the merits instead of technicalities. 9) Taking into consideration the facts considered above and the law laid down by the Hon’ble Supreme Court and further considering the fact that the legal representatives of the original defendant were substituted by the plaintiffs in another proceeding of miscellaneous appeal, therefore, the order passed by the Learned Third Additional District Judge, Ambikapur is not sustainable in the eyes of law. The order dated 22.6.2022 passed by the learned Third Additional District Judge, Ambikapur, District Surguja, in Miscellaneous Appeal No. 28 of 2019 is hereby set aside. The applications moved under Order 22 Rule 4 of CPC, Order 22 Rule 9 of CPC and the application under Section 5 of the Limitation Act are hereby allowed. Miscellaneous Appeal is restored to its original number and the 9 parties are directed to appear before the Court below on

20.11.2024. 10) With the aforesaid observation(s), the petition is allowed subject to payment of the cost of Rs.10,000/- payable to the defendants/ respondents. 11) No order as to cost(s). (Rakesh Mohan Pandey) Judge Nimmi Sd/-