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1979 Supreme(Cal) 12
High Court Of Calcutta
A. K. SEN, B. C. Chakrabarti
JOLAKHA KHATOON - Appellant
Versus
SUSHIL K.MONDAL - Respondent
Civil Rule No. 1990 of 1978
Decided On : 01/16/1979
HIMANSHU KUMAR BASU, PROSANTA BANDOPADHYAY
An order recording abatement does not necessarily and in all cases lead to a final decision equivalent to a decree. A distinction should be made between cases in which abatement is due to the failure to bring the legal representatives on record within the period of limitation or due to the court holding that the petitioner is not the legal representative and cases in which the court recording abatement decides that the right to sue does not survive and in consequence the proceeding abates.
Headnote:
CIVIL PROCEDURE CODE - ORDER 22 RULE 9 - ABATEMENT OF APPEAL - SETTING ASIDE - SUFFICIENT CAUSE - DELAY IN FILING APPLICATION - CONDONATION - LIMITATION ACT (36 OF 1963), SECTION 5.
Fact of the Case:
The appellants filed an appeal against the dismissal of a suit for arrears of rent. During the pendency of the appeal, the principal respondent died. The appellants filed an application for substitution of the heirs of the deceased respondent within the period of limitation. However, a supplementary application was filed after the period of limitation to substitute additional heirs who were not known to the appellants at the time of filing the initial application. The learned District Judge allowed the prayer for substitution on the basis that the initial application had been filed in time. However, the learned Additional District Judge recorded abatement of the appeal as a whole on the ground that the application for substituting all the heirs was not filed within the period of limitation. The appellants then filed an application for setting aside abatement after obtaining a certified copy of the order recording abatement.
Finding of the Court:
The court held that the learned Additional District Judge had jurisdiction to entertain the application under Order 22 Rule 9 of the Civil Procedure Code, despite the earlier order recording abatement, as the order was not final and conclusive. The court further held that the appellants had made out sufficient cause for not filing the application under Order 22 Rule 9 of the Code within 60 days from the date of abatement, as they had acted diligently in ascertaining the names of the heirs and had filed the application promptly after obtaining a copy of the order recording abatement.
Issues: 1. Whether the learned Additional District Judge had jurisdiction to entertain the application under Order 22 Rule 9 of the Civil Procedure Code, despite the earlier order recording abatement? 2. Whether the appellants had made out sufficient cause for not filing the application under Order 22 Rule 9 of the Code within 60 days from the date of abatement?
Ratio Decidendi: 1. An order recording abatement does not necessarily and in all cases lead to a final decision equivalent to a decree. A distinction should be made between cases in which abatement is due to the failure to bring the legal representatives on record within the period of limitation or due to the court holding that the petitioner is not the legal representative and cases in which the court recording abatement decides that the right to sue does not survive and in consequence the proceeding abates. 2. In cases where abatement is due to the failure to bring the legal representatives on record within the period of limitation, an application for setting aside the abatement under Rule 9 of Order 22 of the Code may still be maintainable if sufficient cause is shown for not making the application for substitution in time resulting in abatement.
Final Decision: The court discharged the Rule and held that the appellants had made out sufficient cause for the delay in making the application under Order 22 Rule 9 of the Code.
( 1 ) THIS Rule was issued on an application under section 115 of the Civil Procedure Code and is directed against an order dated May 18, 1978, passed by the learned Additional District Judge, 6th Court, Alipore, in Money Appeal No. 64 of 1975 allowing an application under Order 22 Rule 9 of the Code of Civil Procedure. The substituted heirs of the principal respondent are the petitioners before us.
( 2 ) THE two brothers Sushil and Sunil, the opposite party Nos. 1 and 2 instituted Money Suit No. 2 of 1973 against one Md. Khalil and another claiming arrears of rent from February 1970 to January 1973 from Md. Khalil, the lessee. The suit was dismissed on March 31, 1975, and the said two brothers preferred an appeal being Money Appeal No. 64 of 1975, as aforesaid.
( 3 ) DURING the pendency of the said appeal, the principal respondent Md. Khalil died on June 22, 1975. On September 12, 1975, that is, within the period of limitation the appellants filed an application for substituting Sk. Gulzar (one of the petitioners before us), the father of the deceased and a son by the name of Md. Rashid in place and instead of the deceased principal respondent Md. Khalil. The appellants filed a supplementary application on November 10, 1975, for substituting 7 heirs of the deceased Md. Khalil including the said Sk. Gulzar on an allegation that they have further come to learn that Md. Khalil at his death left behind some more heirs and legal representatives in his wife, two other sons and two daughters. In this application, the petitioners claimed that the son who was sought to be substituted earlier by the name of Md. Rashid should be described in the alias name of Abdul Wadood. The learned District Judge treating the two applications to be one allowed the prayer for substitution on the basis that such an application had been filed in time by an order dated November 13, 1975. The appeal was then transferred to the 7th Court of the learned Additional District Judge.
( 4 ) NOTICE of the appeal then being served on the substituted heirs, Sk. Gulzar filed an application on July 20, 1976, for recording abatement of the appeal since the application for substituting the heir other than himself was filed on November 10, 1975, that is, at a time beyond the period of limitation. This application of Sk. Gulzar was contested by the appellants and the learned Additional District Judge by an order dated March 26, 1977, recorded abatement of the appeal as a whole. He recorded such abatement only on the ground that the application for substituting all the heirs of the deceased Md. Khalil was not filed within the period of limitation. In doing so, he overruled the claim of the appellants that since at least one of the heirs was brought on record within the period of limitation there would be no abatement. The learned Judge took the view that one of such heirs cannot represent the estate of the deceased. In recording abatement the learned Judge, however, specifically observed: ?it may or may not be that there was sufficient cause why no application was made in time for mentioning the names of the aforesaid 5 persons also as legal representatives of the deceased Md. Khalil or that the appellants after diligent and bonafide ascertained only the names of Sk. Gulzar and Md. Rashid as legal representatives of the deceased Md. Khalil but such questions may be decided if and when an application is made for an order to set aside the abatement. ?
( 5 ) IN the light of the order so made on April 23, 1977, the appellants filed an application for substituting the seven heirs of the deceased principal respondent Md. Khalil after setting aside abatement. In this application it was clearly averred that Md. Khalil died at his native place in Bihar and they could to the best of their ability ascertain the names of the two of the heirs when they filed the first application for substitution dated September 12, 1975. It was further averred that the
