At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE D.G. KARNIK
For the Applicant: Yogendra Pendse, Advocate. For the Respondent: ------
1. Heard Mr. Pendse for the applicant. Mr. Rao for the respondent is absent when called.
2. This revision application is directed against the second order dated 3rd July 2006 (passed below Exhibit-32) in Regular Civil Suit No. 54 of 2004.
3. Mumbai Mazdoor Sabha (hereinafter referred to as ?MMS?) filed a suit against Datta @ Appa Shivram Samant (sole defendant) bearing Regular Civil Suit No. 54 of 2004 in the Court of Civil Judge, Senior Division, Thane, for a declaration that he had no right, title or interest in the suit premises which were tenanted premises taken on rent by MMS and for an injunction restraining the defendant from disturbing their possession. In the said suit, MMS made an application for amendment of the plaint. The amendment essentially were three in number. By the first amendment, MMS sought to correct the error in the name of the original defendant. By the second amendment, it sought to plead that in the event the Court came to the conclusion that the defendant was in possession of the suit premises, the decree for possession in favour of MMS be passed. By the third amendment, MMS proposed to add the name of Mafatlal Engineering Industries Ltd. (the revision applicant herein) as a party to the suit. By an order dated 28th October 2005, the application for amendment was allowed, but it appears that the amendment was not physically carried out in the plaint.
4. In the meanwhile, on 6th October 2005 the original defendant died. It appears that the order dated 28th October 2005 allowing amendment was passed in ignorance of the death of the original defendant. Be that as it may, though the application for amendment was allowed, the amendment was not actually carried out in the plaint. On 3rd July 2006, advocate for the original defendant filed a pursis at Exhibit-31 pointing out that the defendant had died on 6th December 2005. He also filed a copy of the death certificate to show that the defendant had died. Thereupon, by an order dated 3rd July 2006, the Court dismissed the suit as abated. It appears that in the afternoon of 3rd July 2006 the advocate for the plaintiff appeared in the matter and by filing an application at Exhibit-32 prayed for setting aside of the order passed earlier in the morning dismissing the suit as abated. It appears that he further prayed that the plaintiff may be allowed to amend the plaint as per the Court?s previous order dated 28th October 2005. The Court, without notice to the present revision applicant who was proposed to be added by the amendment, allowed the application and permitted the plaintiff to carry out the amendment. That order is challenged by the revision applicant (who has been added as defendant no.2 in the suit) by this revision application.
5. Learned counsel for the revision applicant firstly submitted that the suit having been dismissed as abated by an order dated 3rd July 2006, there was no lis pending before the Court and the Court had become functus officio. Without passing an order for setting aside the abatement, it could not have permitted the plaintiff to carry out the amendment. The plaintiff MMS was required to make an application for setting aside the amendment and notice thereof ought to have been issued to the revision applicant as the order was likely to affect its rights.
6. It is settled principle of law that if the heirs of a deceased defendant are not brought on record within the statutory period of 90 days from the date of death, the suit abates automatically and no order of the Court is necessary. The Court may pass a formal order noting abatement on the death but that is in law not necessary and the suit abates automatically on expiry of statutory period of limitation. Since the defendant died on 6th October 2005, the suit automatically abated on or about 4th January 2006 on completion of the period of 90 days of the death. The first order passed by the Court below Exhibit-1 (plaint) in the morning on 3rd July 2006 was only a formal order recording the fact that the suit had abated. The original plaintiff thereafter could have made an application for setting aside of the abatement within 60 days as provided under Article 121 of the Limitation Act. The period of limitation prescribed for making an application for setting aside of the abatement also expired on or about 3rd March 2006. Therefore, the Court could not have passed the order on 3rd July 2006 for setting aside the abatement without there being any application for condonation of delay. In any event, the Court could not have passed the order restoring the suit to file without notice to the present revision applicant who was proposed to be joined as a party under the order of amendment dated 28th October 2005 because the order certainly affects the revision applicant who claims to be in possession of the suit property.
7. At this stage, learned counsel for the revision applicant submits that the respondent MMS had filed a fresh suit, bearing Suit No. 640 of 2006 in the Court of Civil Judge, Junior Division, Thane, making therein a false statement that
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the present revision application has already been allowed. Since this Court is not concerned in this revision application to the dispute between the parties contained in Suit No. 640 of 2006, it can only be stated that it would be open to the revision applicant to bring to the notice of the trial Court the alleged misstatement whereupon the Court may pass appropriate order. 8. For these reasons, the revision application is allowed and the impugned order is set aside. However, in the facts and circumstances of the case, the parties shall bear their own costs.