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M/s. Rashtriya Yuva Udhyog v/s Dheeraj Kanwa

    Civil Regular 1st Appeal No. 39 of 1998

    Decided On, 22 May 2000

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE ARUN MADAN

    For the Appellant: P.S. Sirohi, Advocate. For the Respondent: Pankaj Bhandari, Advocate.



Judgment Text

1. This first appeal is preferred against judgment and decree dated 19-11-97 passed by the Additional District Judge No. 2, Jaipur City, whereby plaintiff's suit for eviction was decreed.

2. The suit for eviction was filed on the grounds inter alia :- (1) default in payment of rent; (2) bona fide and reasonable need of the plaintiff to accommodate her son's family; and (3) nuisance and material alteration having been caused by the tenant (defendant) by installing machines in the rented premises without obtaining permission of the plaintiff. The rent of the suit premises (Rs. 650/- per month) was alleged to have been outstanding since 1-12-87.

3. In written statement, the tenant denied the aforesaid allegations of the plaintiff and contested the suit in respect of purported three grounds of eviction. After framing the issues the trial Court recorded the evidence led by both the parties and after hearing their learned Counsel the trial Court recorded its findings on all the issues in favour of the plaintiff and accordingly decreed the suit for eviction holding that the plaintiff is entitled to recover outstanding rent @ Rs. 650/- per month w.e.f. 1-12-87 till vacant possession of the suit premises is handed over to the landlord. Hence, this appeal. A show cause notice was issued to the plaintiff-respondent. After the service of the notice was complete, Shri A. K. Bhandari, learned Counsel has filed his appearance on behalf of the plaintiff-respondent.

4. The matter has come up for orders on applications :- (i) dated 27-8-98 filed by Shri A. K. Bhandari under Order 22, Rule 10-A, CPC; (ii) dated 13-11-98 under Order 22, Rule 1, CPC; and (iii) dated 11-1-99 under Order 22, Rule 10, CPC on behalf

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of the defendant. Another set of two applications dated 16-2-2000 were also filed by Shri A. K. Bhandari on behalf of the respondent seeking directions from this Court inter alia :- (i) direct the tenant-appellant to deposit arrears of rent outstanding since November, 1997 with interest @ 18% p.a. and future rent in Bank Account No. 67162/183 SBBJ, SMS Highway Branch, Jaipur, and (ii) to vacate the interim stay order dated 7-2-1998.

5. The controversy had arisen between the parties when sole plaintiff-respondent Dheeraj Kanwar had expired on 31-7-98 during pendency of this appeal but despite the intimation about her death having been furnished on 27-8-98 as required under Order 22, Rule 10-A, CPC by the learned Counsel for the respondent, her legal representatives named in application dated 27-8-98 have neither been brought on record by the appellant by filing application within 90 days as required under Order 22, Rule 4, CPC nor they have been made a party within the statutory period of 90 days prescribed under Article 120 of the Limitation Act.

6. During the course of hearing on aforesaid applications, Shri A. K. Bhandari, learned Counsel representing the respondent at the very outset raised preliminary objection that though an intimation as per Order 22, Rule 10-A, CPC was duly furnished about death of respondent which took place on 31-7-98, but the appellant despite having knowledge about her death as he was admittedly residing in the rented premises where the respondent had died, yet application for bringing her legal representatives on record was filed on 13-11-98 under Order 22, Rule 1, CPC much after expiry of limitation prescribed under Article 120 of the Limitation Act, notwithstanding the appeal having automatically abated upon expiry of 90 days from the death of respondent as envisaged under Order 22, Rule 4(3), CPC. Moreover, application for setting aside abatement of appeal has been filed by the appellant on 11-1-99 under Order 22, Rule 10, CPC, that too much after 60 days prescribed under Article 121 of the Limitation Act and without seeking condonation of delay under S. 5 of the Limitation Act, inasmuch as no sufficient cause has been assigned for setting aside the abatement in application under Order 22, Rule 10, CPC by the appellant.

7. Thus, main thrust of his arguments is that the appeal has automatically abated in the aforesaid circumstances immediately upon the expiry of 90 days of death of the respondent, within which her legal heirs were not brought on record nor made party to the proceedings by way of substitution. Shri Bhandari cited following decisions in support of his contention :-

(1) Parmanand v. Ramswaroop, 1981 WLN (UC) 258; (2) Chandu v. Hardayal, 1980 WLN (UC) 445; (3) Padmaram v. Surja, AIR 1961 Raj 72; (4) Sultan v. Board of Revenue, (1990) 1 Raj LR 463; (5) Hiralal v. Mohanlal, (1997) 1 Raj LW 377; and (6) Union of India v. Ram Charan, AIR 1964 SC 215.

8-9. Controverting the aforesaid contentions, Shri P. S. Sirohi, learned Counsel for the appellant contended that though the respondent has died as has been intimated by notice given by her counsel under Order 22, Rule 10-A, CPC on 27-8-98, but since it was an appeal against decree in a suit for eviction, it did not abate because of vested right of her legal heirs in the rented premises and, therefore, the appeal deserves to be continued after substitution of her legal representatives. Shri Sirohi further contended that there is no need to file application for condonation of the delay, if any, once the application for setting aside abatement of appeal has been filed. Shri Sirohi cited the decisions in (1) O. P. Kathpalia v. Lakhmir Singh, AIR 1984 SC 1744; (2) Indraman Karan v. Baliram Singh, AIR 1988 Pat 350; (3) Gadachandi v. Udi Barik, AIR 1981 Ori 126 and (4) Mohd. Yunus v. Rajendra Kumawat, (1995) 1 WLC 150 (Rajasthan).

10. I have heard the learned Counsel for the parties and considered their rival contentions as well as citations referred to by them. The ratio of decisions cited by Shri Sirohi, learned Counsel for the appellant are as under :-

11. In O. P. Kathpalia v. Lakhmir Singh, AIR 1984 SC 1744 (supra), original landlord transferred the demised property subsequent to the eviction suit and the transferees impleaded as parties thereto. The landlord died but the counsel of transferee intimated about his death after six years by letter dt. 2-3-84 within three weeks of which the tenant filed application for substitution. The Apex Court condoned the delay in seeking substitution in view of the fact that original landlord had lost interest in property after its transfer and the transferees were already impleaded as party and held that the statutory duty was cast upon the counsel of party under Order 22, Rule 10-A, CPC to intimate about the death, which he had intimated after lapse of six years which was not proper. But, in the instant case, the learned Counsel for the respondent had taken prompt steps in conveying the intimation to the appellant regarding the demise of respondent but yet the appellant did not take any steps for substitution of legal heirs of the deceased within the stipulated time. Hence, the decision in Lakhmir Singh's case (supra) does not help in advancing the case of the appellant.

12. In Indraman Karan v. Baliram Singh, AIR 1988 Pat 350 (supra), application for substitution of legal heirs was made after five months of the death of deceased but the delay was condoned since the applicant was resident of different village and though unaware of death of respondent. In Gadachandi v. Udi Barik, AIR 1981 Ori 126 (supra), after considering the application filed for substitution of legal heirs on 30-1-81, the Orissa High Court arrived at the conclusion that the plaintiff became aware of the death of defendant No. 1 on 3-12-80 when advocate for the defendant No. 1 filed a memo intimating about the death. The Court held that although no formal application under Sec. 5 of the Limitation Act was filed, yet the plaintiffs in their application for setting aside abatement stated that they had sufficient cause for condonation of delay.

13. In Mohd. Yunus v. Rajendra Kumawat, 1995 (1) WLC 150 (Raj) (supra), the contents of the application filed under Order 9, Rule 13, CPC showed that there was sufficient cause for not filing the application for substitution within time, therefore, this Court held that no separate application for condonation of delay was necessary. However, it was also held that the limitation for setting aside ex parte decree starts from the date of decree and not from the date of knowledge of decree.

14. As a result of above discussion, I am of the view that ratio of decisions cited by the learned Counsel for the appellant are not attracted to the facts of the present case as they do not render any assistance to the case of the appellant for setting aside abatement of this appeal.

15. Now, I advert to the present case. I have carefully perused two applications one filed on 13-11-98 under Order 22, Rule 1, CPC for substitution of legal heirs and another, on 11-1-99 under Order 22, Rule 10, CPC for setting aside abatement of this appeal filed by the appellant. Both these applications were admittedly filed by the appellant after expiry of the prescribed period under Sections 120 and 121 of the Limitation Act and under Order 22, Rule 4(3), CPC and Rule 9, CPC. Admittedly, no application for condonation of delay under Sec. 5 of the Limitation Act has been filed along with aforesaid two applications.

16. The r_m_f decisions cited by Shri Bhandari is discussed hereinbelow :-

17. In Parmanand v. Ramswaroop, 1981 WLN (UC) 258 (supra), application stating that deceased left behind no heir, was not accompanied by any affidavit and subsequently an affidavit showing heirs left behind by the deceased was filed but no reasons were stated in application for setting aside abatement, therefore, this Court held that no case for setting aside abatement was made out. In Chandu v. Hardayal, 1980 WLN (UC) 445 (supra), the fact of death was known when intimated by the counsel as pleaded in application under Sec. 5 of the Limitation Act and under Order 22, Rule 9, CPC. This Court held that this by itself cannot be a sufficient cause and it is not possible for the Court to deal with appeal in absence of legal representatives who cannot be brought on record after expiry of limitation. In Padmaram v. Surja, on the application to set aside the abatement of appeal from preliminary decree in a partition suit for non-impleading the legal representatives of one of the appellants who had died pending the appeal, this Court held that the appeal abated not only qua deceased but as a whole. In Sultan v. Board of Revenue, 1990 (1) Raj LR 463 (supra), the appellant Sultan died on 19-1-76 during pendency of second appeal before Board of Revenue and no application for bringing his legal representative on record was filed within 90 days but a son of deceased-appellant filed such application on 22-7-76 which was not decided by the Board but it decided the appeal on 21-6-77, inasmuch as no application for setting aside abatement was filed before Board at any stage, this Court held that failure to bring legal heirs of deceased-appellant on record within 90 days resulted in automatic abatement of second appeal and as such the judgment and decree passed by Board was a nullity. In Hiralal v. Mohanlal, 1997 (1) Raj LW 377 (supra), the plaintiff-respondent No. 1 Mohanlal (deceased) lived only a few kilometers away and one of the appellants took part in the funeral of the deceased and the application was moved after seven years to set aside the abatement order. In the aforesaid circumstances, this Court held that no sufficient cause was shown to condone the delay and that the appeal stood abated automatically without any judicial order as soon as a party died.

18. The Union of India v. Ram Charan, AIR 1964 SC 215 (supra), the Apex Court held as under (Para 7) :-

"This Court is not to invoke its inherent powers under S. 151, C.P.C. for the purposes of impleading the legal representatives of a deceased-respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time."

19. The relevant provisions relating to abatement as a consequence of the death of a party or one of the parties to a suit or appeal during the pendency thereof are contained in Order 22, CPC.

20. Order 22, CPC provides a complete Code in dealing with the questions arising out of the death of one of the parties to an appeal. These rules are mandatory in character judging by their very language and the effect of the failure to comply with the requirements thereof is laid down in Order 22 itself. Rules 3 and 4 of Order 22, CPC lay down that where there are more than one plaintiff and one defendant, and one of them dies, the right of suit does not survive in favour of or against the remaining plaintiffs or defendants by themselves, as the case may be, then an application has to be made within the time allowed by law to bring on record the legal representatives of the deceased party and they must be made parties to the suit.

21. Sub-rule (2) of Rule 3 and sub-rule (3) of Rule 4 of Order 22, CPC further provide that where within the time limited by law such application is not made under sub-rule (1) of either of the above-referred rules respectively as the case may be, the suit shall abate so far as the deceased-plaintiff or defendant is concerned. However, it is well-settled that under the present Code no separate or specific order as to the abatement is necessary and once failure with regard to compliance of the provisions of Order 22, Rule 3 or 4, has been made out, the suit abates automatically against the deceased party forthwith. The aforesaid rules have been made applicable to appeals as well as by virtue of Rule 11, which provides that, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent and the word, 'suit' an appeal.

22. Article 120 of the Indian Limitation Act, 1963 postulates 90 days as period of limitation to submit application for substitution from the date of death of the plaintiff, appellant, defendant or respondent as the case may be, while Article 121 of the aforesaid Act prescribes 60 days as period of limitation to move for setting aside the abatement of the suit or appeal from the date of abatement.

23. Thus, viewed from the legal position carved out of the relevant aforesaid rules, there is no doubt as to the principle of law that as soon as period of limitation of 90 days as postulated in Article 120 of the Limitation Act expires from the date of death of one of the parties to the suit or appeal, as the case may be, if no substitution of legal heir or representative of the deceased party is brought about by filing an application in this regard, then under the Code, abatement takes place automatically without any judicial order.

24. In the instant case, the plaintiff-respondent died on 31-7-1998 intimation thereof was furnished by her counsel as per Order 22, Rule 10-A, CPC on 27-8-98. Thus, 90 days as prescribed under Article 120 of the Limitation Act expired on 31-10-98 from the date of death of Dheeraj Kumar (plaintiff) but yet till 31-10-98 no application for substitution of her legal heirs was moved in this first appeal by the appellant, hence the appeal automatically stood abated on 31-10-98 immediately upon expiry of 90 days of her death.

25. Moreover, the appellant had also failed to file application for setting aside abatement within 60 days from the date i.e. 31-10-98 when the appeal having abated. If the appellant was serious enough in prosecuting appeal he should have moved application to set aside abatement as required under Order 22, Rule 4(5) on or before 30-12-98. But, he failed to do so. Only an application has been filed on 11-1-99 under Order 22, Rule 10, CPC, i.e. much after 60 days of abatement. However, such application is not maintainable under Order 22, Rule 10, CPC for setting aside abatement. Neither, application for setting aside abatement nor application for condonation of delay in moving either for substitution of legal heirs of the deceased or for setting aside abatement has been submitted by the appellant. In the application purported to have been filed under Order 22, Rule 10, CPC praying therein for continuance of the appeal, the appellant failed to explain sufficient cause and state as to what were the compelling reasons for which the delay should be condoned. In my opinion, this is a case of gross negligence and I am far from satisfied that it discloses sufficient reason within the meaning of Order 22, Rule 9(2), CPC. The result must inevitably be that the appeal stood abated on 31-10-98 when the statutory period of 90 days to bring in legal representatives of deceased-respondent on record has expired without their being so brought, and that abatement does not deserve to be set aside.

26. As a result of above discussion, the appeal does not survive having abated and stands dismissed automatically. Consequently, interim stay order dated 7-2-98 stands vacated and applications of the appellant are dismissed.
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