High Court
Case Details
CRP 290/2008 BEFORE THE HON’BLE MR. JUSTICE S. TALAPATRA
Legal Reasoning
Heard Ms. P. Chakraborty, learned counsel appearing for the petitioners as well as Ms. A. Ajitsaria, learned counsel appearing on instruction of Ms. M. Hazarika , learned senior counsel for the respondent. This is a petition under Section 115 of the Code of Civil Procedure against the Order dated 05.04.2008 passed by the Civil Judge, Sr. Division No. 2, Cachar, Si lchar in Title Appeal No. 9 of 2004. Title Suit No. 75 of 1961 was filed for eviction of the legal heirs of Tilak Ram Goala from the tenancy as described in the plaint. However, the said suit later on re-numbered as Title Suit No. 18 of 1963. But the suit was dismissed and the reafter an appeal being Title Appeal No. 112 of 1963 was carried out against the said judgment and decree. The said title appeal was also dismissed on 1.9.1964 and as such, the right, title and possession of the legal heirs were confirmed b y the trial Court as well as by the appellate Court. Regarding the same property another title suit was instituted being Title Suit No. 12 of 1984, which was de creed on admission. Pursuant to the said decree dated 30.06.1984 an execution pr oceeding was set in to recover the land by dispossessing the legal heirs of Tila k Ram Goala. On the face of such execution proceeding the legal heirs of Tilak Ram Goala (his son Shib Narayan Goala and his wife Rachli goalaini) filed another title suit being Title Suit No. 186 of 1984 in the Court of Munsiff No. 2 at Silchar contending t hat the decree as passed in Title Suit No. 12 of 1984 was obtained by fraud and collusion. The said title suit was decreed on 12.12.2003. While Title Suit No. 1 86 of 1984 was pending both the immediate descendent legal heirs died leaving M oini Goala, wife of Shib Narayan Goala, as their only legal heir. Accordingly, M oini Goala was substituted as the sole plaintiff in the said title suit. The Tit le Suit No. 186 of 1984 was decreed on 12.12. 2003. Being aggrieved, the decree holder of Title Suit No. 12 of 1984 filed appeal be ing Title Appeal No. 9 of 2004 against the judgment and decree dated 12.12.2003 as passed in Title Suit No. 186 of 1984 before the Civil Judge, Senior Division, Silchar. During pendency of the appeal, the sole respondent in the appeal i.e. the plaintiff in the Title Suit No. 186 of 1984 namely, Moini Goala died on 31.0 8.2006. For substantial time, the said death was not reported to the Court. But on 11.09.2006 by filing proper notice under Order XXII, Rule 10A of the CPC the said death was reported and it was made part of the record. The appellant havin g knowledge of death of the sole respondent did not take any step to substitute the legal heirs as contemplated by Order XXII, Rule 4 of the CPC. Only on 16.06. 2007 a petition was filed seeking dismissal of the appeal as abated. The appella nt filed the written objection to the said petition, which was numbered as the P etition No. 318/6, but the Court did not pass any order on such petition. It was on 16.08.2007 the appellant/respondent in this petition filed application under Order XXII, Rule 4 read with order VI, Rule 17 of the CPC alongwith the petitio n seeking for condonation of delay in filing the petition for substitution of th e legal heirs of the said sole respondent. The deceased respondent executed a Will on 07.11.2004 bequeathing all her proper ties including the suit property in favour of Babul Goala, her brother and Mona Goala, son of her other brother who are the petitioners herein. Accordingly, the petitioners filed objection against the prayer for substitution so sought. The objection was registered as Petition No. 466/2. On the face of t he objection, it has been contended as under: (cid:28)1. That, the sole respondent of this appeal Moini Goala during her life time on 07.11.2004 executed her last will in respect of her movable and immovable proper ties and by said will dated 07.11.2004 bequeathed her all movable and immovable properties including the properties relating to this appeal in favour of the pet itioners. The appellant of this appeal in spite of knowing the fact that the sol e respondent Moini Goala died on 31.08.2006 failed to take any steps within the period of limitation in spite of information given by Advocate of Moini Goala o n 11.09.2006 U/O 22 R. 10A, CPC in writing before this Court. So this appeal has been abated in compliance with law enunciated in AIR 1983 SC 676. Moreover, one petition has been filed by Sri Ramu Goala and Sri Chanchal Goala illegally and baselessly U/O 22 R. 4 and U/O 6 R. 17, CPC falsely alleging one Meghu Goala as brother of the husband of respondent Moini Goala. Husband of the respondent Moin i Goala had no brother or sister of his own but at the instance of appellant sai d petitioners filed a false time barred petition falsely alleging Ramu Goala and Chanchal Goala of Kalain T.E as legal heirs of deceased respondent Moini Goala. Rather, as per last will executed by respondent Moini Goala on 07.11.2004 the a pplicants are the legal representative of the movable and immovable properties o f deceased respondent Moini Goala legally entitled to represent the estate of th e deceased respondent Moini Goala, so the false petition filed by Ramu Goala and Chanchal Goala and the false vexatious objection filed by appellant on 16.08.20 07 may kindly be rejected by holding that the appeal has already been abated on 30.11.2006. (cid:29) The Court of the Civil Judge No. 2, Cachar, Silchar being appellate Cour t decided the issue without any enquiry as contemplated under Order XXII, Rule 5 of the CPC by the impugned order dated 05.04.2008 holding inter alia that: (cid:28)Appellant side by submitting objection argued before the court that they have n o knowledge about the death of sole respondent. On 11.09.06 the respondent has n ot properly informed the court about the death of the sole respondent. They furt her submitted that as the respondent side not properly informed the court about the death of the respondent Moini Goala so nowhere in the record it is reflected more particularly, on the order dated 11.09.06. After hearing the both sides an d perusing the case record it can be safely be presumed that the appellant side has no knowledge about the death of sole respondent Moini Gaola before receiving the copy of the Petition No. 164/3 on 18.06.07 (cid:29) Accordingly, the said objection being Petition No. 164/3 as filed by the petitioners was rejected. However, the petition as filed by the appellant being Petition No. 319 under Order XXII, Rule 4 read with Order VI, Rule 17 and Sect ion 151 of the CPC and another Petition No. 320/9 were allowed. The appellate co urt decided that the names of person who were substituted on the basis of the pe tition filed by the appellant are the legal representative of the sole deceased respondent. Thus, the objection as raised by the petitioners was discarded by th e impugned order dated 05.04.2008. On the other hand, Ms. A. Ajitsaria, learned counsel appearing for the r espondent submitted that unless contrary is evident by the Court, the impugned o rder cannot be faulted with. On considering the rival contentions as projected by the counsel for the parties, this Court is of the opinion that the appellate court while passing th e impugned order has failed to adopt the procedure as laid in Rule 5, Order XXII , CPC and caused serious injustice abruptly arriving at the impugned decision. T here cannot be difference of opinions that provisions of Order XXII, Rule 5 of t he CPC negotiates such dispute. Rule 5 of Order XXII provides as follows: (cid:28)5. Determination of question as to legal reprehensive.- Where a question arises as to whether any person is or is not the legal representative of a deceased pl aintiff or a deceased defendant, such question shall be determined by the Court: [Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the qu estion and to return the records together with evidence, if any, recorded at suc h trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.] (cid:29) The disputes centre around as to whether the LRs so substituted are the legal heirs of the deceased or not. As such the appellate Court ought to have re mitted the matter to the trial Court for taking a decision on the disputed quest ion following the procedure as contemplated under Rule 5, Order XXII of the CPC. In the premises as noted, the impugned order is interfered with and set aside. The dispute as raised by the petitioners herein on the legal representat ives of the deceased-respondent in the referred appeal is, therefore, required t o be remitted to the trial Court for decision. The appellate court records be se nt to the trial Court for determining the controversy relating to the legal repr esentatives of the deceased- respondent forthwith. The trial Court is directed t o decide the reference with expedition, however, on affording reasonable opportu nities to the parties to file statements and lead their evidence. The parties will appear before the trial Court on 25.02.2013 and would t ake necessary steps. The appellate Court is directed to send down the records by the date so fixed by this Court. With this observations and direction, this petition stands allowed to th e extent as indicated above. Send down the LCRs forthwith.