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1913 Supreme(SC) 11
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW OF DUNFERMLINE, LORD MOULTON, SIR JOHN EDGE, AND MR. AMEER ALI.
RAJA DEBI BAKHSH SINGH - Appellant
Versus
HABIB SHAH - Respondents
On Appeal from the Judicial Commissioner of Oudh.
Decided On : April 16, 29, 1913.
Solicitors for appellant: T. L. Wilson & Co.
Rules regarding dismissal for non-appearance are inapplicable to a deceased plaintiff as they are punitive. The court possesses inherent power under Section 151 of the CPC to rectify such mistakes, allowing the legal representative to be substituted under Order XXII, r. 3 within the six-month limitation period.
Headnote:(A) Code of Civil Procedure, 1908 - Order IX, r. 8 and r. 9, Order XXII, r. 1 and r. 3, Section 151 - Limitation Act, 1908 - Schedule I, Art. 163 and Art. 176 - Land Revenue Act, 1901 - Section 34(5) - Death of plaintiff - Suit dismissed for non-appearance - Substitution of legal representative - Inherent power of Court - Rules regarding non-appearance of a suitor are inapplicable when the suitor is dead, as the principle of forfeiture of rights for procedural default is a punishment, and the dead cannot be punished - Where a suit is dismissed in ignorance of the plaintiff's death, the court has the inherent power under Section 151 to rectify the mistake to prevent abuse of the process of the court.
(B) Limitation - Period for application for substitution of legal representative under Order XXII, r. 3 is six months as per Art. 176 of Schedule I of the Limitation Act, and not thirty days as prescribed for restoration of a suit dismissed under Order IX, r. 9 under Art. 163.
Facts of the case:
A suit for recovery of rent arrears was filed. The plaintiff died before the hearing date. On the date of the hearing, the suit was dismissed for non-appearance of the plaintiff, as the court was unaware of the death. The legal representative subsequently applied to be substituted as the plaintiff and for the dismissal order to be set aside. The lower court initially granted the application, but this was reversed by a higher court on the grounds of non-compliance with land revenue laws and the expiration of the thirty-day limitation period for restoring dismissed suits.
Findings of Court:
The court found that the rules dealing with the non-appearance of a suitor cannot be applied to a deceased person. The application for substitution was made within the six-month limitation period. The court also held that the inherent power under Section 151 of the Code of Civil Procedure is available to rectify such inadvertent mistakes to ensure justice.
Issues: Whether the rules for dismissal due to non-appearance apply to a deceased plaintiff; whether the limitation period for substitution is thirty days or six months; and whether the court possesses inherent jurisdiction to set aside a dismissal order made in ignorance of the plaintiff's death.
Ratio Decidendi: The court ruled that procedural default rules are punitive and cannot be applied to a dead person. Consequently, a suit dismissed for non-appearance after the plaintiff's death is a mistake that the court must rectify. The correct procedure is substitution of the legal representative under Order XXII, r. 3, subject to a six-month limitation period.
Result: Appeal allowed, the order of the Deputy Commissioner restored.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- substitution of parties
- dismissal for non-appearance
- inherent powers of court
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limitation
- substitution of legal representatives
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civil procedure
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land revenue law
- succession reports
Judgement
Appeal from a judgment and decree of the Court of the Judicial Commissioner of Oudh (December 7, 1911) affirming in review a judgment and order of that Court (February 20, 1912) reversing an order of the Deputy Commissioner of Bahraich (September 11, 1911).
Raja Muneshar Bakhsh Singh, father of the appellant, instituted a suit against the respondent for recovery of arrears of rent under a lease and filed his plaint on May 3, 1911, in the Court of the Deputy Commissioner of Bahraich. The respondent filed his written statement on May 31, 1911.
On June 21, 1911, Raja Muneshar Bakhsh Singh died.
The suit was fixed for hearing on July 4, 1911, and on that day, the plaintiff not appearing, the suit was dismissed.
On August 3, 1911, the appellant applied that- the order dismissing the suit might be set aside and that he might be substituted for his father as plaintiff.
Law Rep. 40 Ind. App. 151 ( 1912- 1913) Raja Debi Bakhsh Singh V. Habib Shah 64
On August 3, 1911, the agent of the appellant left this application with the general superintendent of the Court of the Deputy Commissioner, stating that he was waiting in Court from 2 p.m. to 4.30 p.m. to present the application, but that he was unable to do so, as the Deputy Commissioner had not taken applications on that date. The Deputy Commissioner on August 4, 1911, ordered " he was in my Court and might have filed it then. It may be accepted." The application purported to be made under the Code of Civil Procedure, 1908, Order xxii., r. 3, and Order ix., r. 9.
At the hearing of the application on September 11, 1911, the respondent contended that no report of succession had been made under the provisions of the Land Revenue Act (III. of 1901, U. P.), s. 34 (5.), also that the application could not be taken as being made before August 4, 1911, and that it was therefore time-barred by the Limitation Act, 1908, Sched. I., art. 163. The appellant contended that the period of limitation was six months under Sched. I., art. 176, of that Act. The Deputy Commissioner granted the application; he stated that the report of the succession required by the Land Revenue Act had been made, and he held that the application had been accepted on August 3, 1911, under his order. He added " I cannot allow any technicality to obscure the fact that the case was not heard only because of the calamity which prevented it being put up."
On the respondents application to the Court of the Judicial Commissioner this order was reversed. That Court considered that Act III. of 1901, s. 34 (5.), had not been complied with, no report being in the record; also that the application under Order ix., r. 9, had to be made within thirty days of the dismissal, and that it was not effectively made on August 3, 1911, and was therefore out of time.
The appellant applied to the Court of the Judicial Commissioner to review this decision on the ground that the dismissal of the suit under Order ix., r. 8, was ultra vires, and that the inherent jurisdiction of the Deputy Commissioner to set aside his dismissal of the case was preserved by the Code of Civil Procedure, 1908, s. 151, and that no effect had been given to Order xxii., r. 3.
On February 20, 1912, the Court of the Judicial Commissioner delivered judgment by which they rejected these contentions, affirmed their decision of December 5, 1911, and dismissed the application.
De Gruyther, K.C., and Kyffin, for the appellant. Where a sole plaintiff dies before trial, Order ix., r. 8, does not apply. The suit was dismissed in ignorance of the fact that the plaintiff was dead, and the Deputy Commissioner had inherent jurisdiction to set aside the order dismissing it. That inherent jurisdiction is preserved by the Code of Civil Procedure, 1908, s. 151 By Order xxii., r. 1, it is provided that the death of the plaintiff shall not cause the suit to abate if the right to sue survives, and the appellant, as the legal representative, properly applied under r. 3 of that order to b
