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2019 Supreme(Jhk) 1020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Kalam Uddin Khan & Anr. - Appellants
Versus
Noorasha Bibi (deleted vide order dated 07.07.2008) & Ors. - Respondent
M.A. No. 19 of 2005
Decided On : 22-01-2019
For the Appellants : Mr. Rajiv Ranjan Tiwary, Adv.
For the Respondent: Mr. Ayush Aditya, Adv.
Headnote:
Civil Procedure Code, 1908 - Rule 4 - Order XXII - Argument - Partition suit has share in property - This appeal has been filed against order dated passed in Title Appeal - By learned Additional District Judge Fast Track Court - whereby on one hand the appellants’ petition for substitution of legal heirs of respondent - One of substituted heirs of original respondent - Setting aside abatement if any has been dismissed and on other hand learned court below has held that appeal stands abated in its entirety – Held provisions of Order Rule CPC provide that in case the deceased defendant did not contest suit and did not file counter - Affidavit substitution may not be warranted - In instant case High Court repelled submission regarding application of Order Rule CPC on ground that said provision requires the presentation of an application before Court before it pronounces its judgment for seeking such relief and once such an application is allowed in that case it can only be taken against said defendant notwithstanding death of such defendant and such a decree shall have same force and effect as if it was pronounced before death had taken place - This view stands fortified by judgments of this Court in Thus it has rightly been by High Court that provisions of Order Rule CPC were not attracted in facts of this case - Similar view has been taken in passed by Supreme court reported in and others and to submit that in order to avail benefits of provisions of Order Rule an order has to be obtained from Court exempting plaintiff from bringing on record legal representatives of such person -In instant case as no such order was obtained from the Court exempting the plaintiff from bringing on record legal representatives of such person and accordingly no benefit of could have been granted to appellants before lower appellate court and accordingly the argument of the counsel for appellants that appellants ought to have been granted benefit of Order by lower appellate court is hereby rejected - Appeal dismissed
ORDER :
Heard Mr. Rajiv Ranjan Tiwary, counsel appearing for the appellants.
2. Heard Mr. Ayush Aditya, counsel appearing for the respondent nos. 2, 3, 4 & 39.
3. This appeal has been filed against the order dated 27.01.2005 passed in Title Appeal No. 15 of 2003 by the learned Additional District Judge, Fast Track Court-II, Garhwa, whereby, on one hand, the appellants’ petition for substitution of the legal heirs of respondent nos. 21(Abbas Khan), 5(Asgar Khan) and one of the substituted heirs of original respondent no. 8 (Nasim Khan) and setting aside abatement, if any, has been dismissed and on the other hand, the learned court below has held that the appeal stands abated in its entirety.
ARGUMENTS OF THE APPELLANTS
4. Counsel for the appellants submits as under:-
a. The matter arises out of Partition Suit No. 24 of 1977 which was dismissed on 23.04.1983.
b. A petition was filed on 31.03.2003 before the lower appellate court for substitution of the respondent nos. 21(Abbas Khan), 5(Asgar Khan) and one of the substituted heirs of original respondent no. 8 (Nasim Khan) by stating that they had died on 15.01.2003, 27.01.2003 and 18.02.2003 respectively. A rejoinder was filed to the petition for substitution indicating that the respondent no. 21 had expired in the year 1992, respondent no. 5 in the year 1999 and one of the legal heirs of original respondent no. 8, Nasim Khan, in the year 1995. Thereafter, the appellants before the lower appellate court filed an application for condonation of delay in filing the substitution petition and for setting-aside abatement, which was ultimately dismissed by the impugned order.
c. Counsel for the appellants submits that so far as the dismissal of the substitution petition is concerned, he has no grievance at this stage because the dates which were mentioned in the petition for substitution were wholly incorrect. However, during the course of argument, he submits that the learned lower appellate court has erred in law by holding that the entire appeal has abated.
d. While further arguing, counsel for the appellants submits that the said persons, whose petition for substitution was filed, never appeared in the partition suit and they never filed any written statement. Accordingly, he refers to Order XXII Rule 4(4) of Code of Civil Procedure, 1908, and submits that as per this provision, whenever the court thinks fit, it may exempt the plaintiff from necessity of substituting the legal representatives of any defendant who has failed to file written statement or who, having filed it, has failed to appear and contest the suit at the hearing and the judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have same force and effect as if it has been pronounced before the death took place. The counsel for the appellants submit that in view of this specific provision, non-substitution of the deceased persons before the lower appellate court was not fatal to the litigation and the court still should have proceeded for taking up the appeal on merits.
e. He further submits that so far as the partition suit is concerned, every party in the partition suit has a share in the property and accordingly, merely because some of the parties to the suit had expired, the same does not disentitle the plaintiffs to have their share of the property declared and accordingly, the lower court could not have held that the entire appeal stood abated.
f. By referring to the impugned order, the counsel submits that these aspects of the matter have not been taken into consideration and accordingly, the impugned order is perverse and is fit to be set-aside.
ARGUMENTS OF THE RESPONDENTS
5. Counsel for the respondents, on the other hand, submits as under:-
I. The instant appeal itself has abated in view of the fact that in spite of death of respondent no. 43, no petition for substitution has been filed and the appeal has abated so far as respondent no. 43 is concerned. He
