2007 Supreme(Bom) 1703

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.A. Britto, J.
ANTHONY D'SA s/o VALENTINO ANTONIO D'SA - Petitioner.
vs.
DARIA LING D'SAE DIAS w/o CASMIRO DIAS and others - Respondents.
Civil Rev. Appln: No.4 of 2007
Decided on: 13-12-2007.

Headnote:Specific Relief Act, 1963 - Sections 34, 36 and 37-Code of Civil Procedure, 1908, Order XXII, Rules 3 and 9-Limitation Act, 1963, Article 120-Suit filed for declaration for title and injunction for demolition of structure on suit property-Ex parte order against them-Held that if a suit or appeal abates a very valuable right accrues to the other party-Taken on record-Declaratory suit-Between joint heirs of property with declaration that sale-deed same defendants were not binding on plaintiff-Defendants 3 to 13 were declared as ex parte on 15.1.1992 and 19.4.1997-Plaintiff died on 7.3.2006 and defendants being LR sought their names to be transposed as co-plaintiffs-They also sought recall of ex parte orders against them-Trial Court dismissed said two applications and held that application filed on 28.3.2006 for transposition was not maintainable as heirs of sole plaintiff were already on record and they were being proceeded ex parte order and application to set aside ex parte order against them was already rejected and consequently defendants 14 and 15’s application dated 6.7.2006 was allowed.-The plaintiff was the mother/mother-in-law of defendants No. 3 to 13. The plaintiff had filed the suit for declaration that the plaintiff along with defendants No. 3 to 13 be declared to be the owners of the suit property and that they were not bound by the sale-deeds dated 10.11.1983 and 23.2.1987. The plaintiff had also sought mandatory injunction for the demolition of a structure constructed by defendant No. 1. The defendants No. 3 to 11 were ordered to proceed ex parte on 15.11.1992 and defendants No. 12 and 13 were ordered to proceed ex parte on 19.4.1997.

       The plaintiff died on 2.11.2004 and on 7.3.2006, the Court was informed about the death of the plaintiff.

       On 28.3.2006, an application was filed on behalf of defendant No. 5 stating that defendants No. 3 to 13 were the only legal representatives of the deceased plaintiff and therefore they be transposed as plaintiffs No. 1(a) to 1(k).

       In the appeal filed, the ADJ observed that the defendants No. 3 to 13 were not residing in India and they might have not kept track of the suit and might have forgotten its existence and the plaintiff also had died in the United Kingdom and the plaintiff’s Advocate did not know about the same. The ADJ therefore held that there were sufficient reasons to condone the delay and saw no reason as to why they should not continue as the legal representatives of the plaintiff and therefore proceeded to set aside the order of the trial Court dismissing the suit as abated.

       The counsel on behalf of the petitioner/defendant No. 1 contends that Order XXII, Rule 3, CPC required that any application to bring the legal representatives of deceased plaintiff was necessary to be made within the time provided by law and such an application not having been made, the suit had abated and therefore it was not open to the ADJ to transpose the said defendants in place of the deceased plaintiff.

       On the other hand, Shri Sardessai, the counsel on behalf of defendant Nos. 3 to 13 contends that the said defendants were already on record and all that was necessary was to file a formal application to transpose them in place of the deceased plaintiff since they were already on record, in another capacity as defendants. Both the counsel have placed reliance on various decisions to which I will refer to little later.

       There is no dispute that the case at hand is a case of death of the sole plaintiff and is governed by Rule 3, Order XXII, CPC and, which provides that upon the death of sole plaintiff and if the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased-plaintiff to be made a party and shall proceed with the suit. That is in brief what sub-rule (1) of Rule 3 of Order XXII, CPC provides. Sub-rule (2) further provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff. A reference to Rule 9 will also not be out of context, and, which provides that where a suit abates or is dismissed under this order, no fresh suit shall be brought on the some cause of action. Sub-rule (2) of Rule 9 further provides that the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. Sub-rule (3) further provides that the provisions of Section 5 of the Indian Limitation Act, 1877, shall apply to applications under sub-rule (2). We would not be concerned with the explanation below sub-rules (3) and (9) of Order XXII, CPC.

       Legal representatives of deceased plaintiff could have moved an application to seek the abatement set aside and that had to be done in the next 60 days and if not within further period by explaining the delay in filing such application. If the suit had abated after 90 days of the death of the plaintiff on 2.11.2004, there was no question, in my opinion, of filing any application for transposition of the said defendants No. 3 to 13 in place of the deceased plaintiff. The matter of transposition of health by Order I, Rule 10, CPC which is a general remedy. The specific remedy is provided by Order XXII, Rule 3, CPC, and, once a specific remedy is provided then only that remedy could have been followed. Defendant Nos. 3 to 13 were already proceeding ex parte by virtue of orders dated 15.1.1997 and 19.4.1997. The said defendants filed an application for the first time on 14.3.2006, to transpose them in place of, deceased plaintiff and after realizing that they were already being proceeded ex parte they filed another application dated 6.7.2006 for recalling the order proceeding ex parte against them. The said defendants did not even file any application for condoning the delay and only made a casual statement that in case there was delay, the same be condoned. No doubt sufficient cause in condoning delay has always been construed liberally but certainly casual approach cannot be countenanced. At the cost of repetition it may be stated that after the suit had abated there was no question of defendants No. 3 to 13 being transposed in the name of the deceased plaintiff. Likewise, there was also no question of setting aside any ex parte order. The only remedy provided for bringing the legal representatives of deceased plaintiff was by way of an application to set aside the said abatement in terms of sub-rule (2) of Rule 9, Order XXII, CPC and in case there was delay in making such an application, by filing an application in terms of sub-rule (3) read with Section 5 of the Limitation Act, 1963. The defendants No. 3 to 13 chose not to avail of the said remedy provided to them. No application for transposition could have been entertained after the suit had abated. Procedural laws are as valid as any other law and are not meant to be brushed aside by the Court. The provision fixing a particular time for making an application for bringing legal representatives on record with the consequence of the suit or appeal abating if no application is made within time, have been enacted for expeditious disposal of cases in the interest of proper administration of justice. It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned.

       In above view of the matter, this revision petition deserves to succeed and the order dated 1.2.2007 of the ADJ deserves to be set side and the order of the trial Court dated 22.8.2006 hereby is restored.

       Constitution of India - Article 226-Civil Procedure Code, 1908, Order XXII, Rule 3-Civil revision petition against judgment of ADJ putting legal representative on record of defendants-Plaintiff being mother-in-law of defendant Nos. 3 to 13-Held in declaration suit being owners of suit property-Demolition of structure made by defendant No. 1 also favoured plain- tiff- Ex-parte order passed in favour of defendants No. 3 to 13 filing of application by defendant No. 5-Declaration of defendant Nos. 3 to 13 as being legal representatives and be transposed as plaintiff Nos. 1(a) to (k)-Suit be abated said by defendant Nos. 14 and 15- Application by attorney of defendant No. 5 to set aside ex parte order against defendant Nos. 3 to 13-Dismissal by trial both application being heir of plaintiff already on record-Defendant Nos. 3 to 13 were non-residents of India and death of plaintiff in U.K. resulted in ex-parte order- No knowledge to plaintiff’s Advocate- Delay condoned-Transposition of defendants in place of deceased plaintiff beyond time limit-Defendant Nos. 3 to 13 were already on record-Case is ruled by Order XXII, Rule 3 due to death of deceased plaintiff-Right to sue survives- Abatement of suit, not allowed to file fresh suit under sub-rule (1) of Rule 9-Cross- appeal does not abate held by Apex Court-Specific remedy available under Order XXII, Rule 3-Recall of ex-parte order against them-In abatement of suit a valuable right accrues to other party and be not ignored-Revision petition allowed.