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High Court Of Allahabad
A.K. Banerji, J.
Virendra Kumar Singhal
Vs.
Murari Lal Singhal
Civil Revision No 568 of 1992
Decided on: 1st February, 1993
SUBSTITUTION OF PARTIES - ORDER 22 RULE 4 CPC - DELAY IN FILING APPLICATION - CONDONATION OF DELAY - SUIT FOR PARTITION - NECESSARY PARTIES - ABATEMENT OF SUIT - LIMITATION ACT, SECTION 5 - ORDER 22 RULE 9 CPC - EXPLANATION FOR DELAY - SUBSTANTIAL JUSTICE - TECHNICAL CONSIDERATIONS - JURISDICTION OF COURT TO DETERMINE SUFFICIENT CAUSE - REVISION - INTERFERENCE BY HIGH COURT.
Fact of the Case:
Plaintiff filed a suit for partition of properties, declaration, and rendition of accounts. During the pendency of the suit, one of the defendants died. The plaintiff filed an application under Order 22 Rule 4 CPC for substitution of the deceased defendant's heirs and consequential amendment in the plaint. The application was filed beyond 150 days from the date of the defendant's death. The defendant-applicant objected to the substitution application and filed an application for setting aside the abatement of the suit.
Finding of the Court:
The court held that the plaintiff had given sufficient reasons for the delay in filing the substitution application. The court also held that the widow and daughters of the deceased defendant were necessary parties to the suit and that the suit would not abate if they were brought on record. The court further held that the trial court had jurisdiction to determine whether there was sufficient cause for the delay and that the High Court could not interfere with that finding of fact.
Issues: 1. Whether the delay in filing the substitution application could be condoned? 2. Whether the widow and daughters of the deceased defendant were necessary parties to the suit? 3. Whether the suit would abate if the widow and daughters of the deceased defendant were not brought on record? 4. Whether the trial court had jurisdiction to determine whether there was sufficient cause for the delay? 5. Whether the High Court could interfere with the trial court's finding of fact?
Ratio Decidendi: 1. The court held that the delay in filing the substitution application could be condoned because the plaintiff had given sufficient reasons for the delay. 2. The court held that the widow and daughters of the deceased defendant were necessary parties to the suit because they were heirs and legal representatives of the deceased defendant. 3. The court held that the suit would not abate if the widow and daughters of the deceased defendant were brought on record because the estate of the deceased defendant would be represented. 4. The court held that the trial court had jurisdiction to determine whether there was sufficient cause for the delay because this was a question of fact. 5. The court held that the High Court could not interfere with the trial court's finding of fact because the trial court had jurisdiction to determine whether there was sufficient cause for the delay.
Final Decision: The court dismissed the revision petition and held that the trial court's order allowing the substitution application was valid.
A.K. Banerji, J.
1. This revision has been filed by one of the defendants against the judgment and order dated 8-10-1992 passed by the XIII Additional District Judge, Agra allowing a substitution application filed by the plaintiff-opposite party and permitting consequential amendment in the plaint.
2. Briefly stated the facts so far as relevant for the purposes of the present revision are that the plaintiff Murari Lal Singhal has filed a suit for partition of the properties in Suit, a declaration and for rendition of accounts together with other consequential reliefs The suit was filed against Babu Lal Singhal and others who are inters coming from their common ancestor Bihari Lal Modi. Bengali Mal Singhal, who was arrayed as defendant no. 2 in the Suit, died on 4-8-1989 during the pendency of the Suit. The sons of the deceased defendant were already on record of the Suit. On 15-1-1990 the defendant-applicant filed an application before the trial court stating that the defendant no. 2 had died on 4-8-1989 but no application for substituting his heirs was filed and, therefore, the Suit deserved to be abated against him After this application was filed the plaintiff on 29-1-1990 filed an application purporting to be under Order 22 Rule 4 CPC for substitution duly supported by affidavit In this application and affidavit it was stated by the plaintiff that the sons of the deceased defendant no. 2 were already on record as defendants no, 8 to 13 and apart from the sons the widow of the deceased and two daughters were also the heirs and legal representatives who should be substituted as defendants no 2/1 to 2/3 in the Suit. It was further stated that the courts were dosed due to lawyers' strike from 28-7-1989 to 10-12-1989 and after the strike the case was luted for the first time on 29-1-1990 on which date this application was filed. The reason for the delay in filing the application was given that the plaintiff was unable to ascertain the addresses of the proposed heirs no. 2/2 and 2/3 earlier than 27-1-1990 and it was prayed that the delay if any, which was for the said reason, may be condoned. It was also prayed that the application be allowed and the consequential amendment may be allowed to be incorporated in the plaint. This application was initially allowed by the trial court on 1-4-1991. Thereafter the defendants filed an application for setting aside the order dated 1-4-1991 stating that the said order was an exparte order and an opportunity may be given to the defendants to contest the substitution application filed by the plaintiff. After the parties had exchanged counter and rejoinder affidavits, the matter was ultimately heard by the trial court which, as already stated above, by order dated 8-10-1992 allowed the substitution application and by implication rejected the applications filed by the defendants for recalling the earlier order and rejecting the substitution application. Aggrieved by the said order the defendant-applicant, Virendra Kumar Singhal has filed the present revision before this Court. I have heard Shri Santosh Kumar, learned counsel appearing for the defendant-applicant and Shri Sushil Harkauli, appearing for the plaintiff-opposite party, who had filed a caveat in this revision. With the consent of learned counsel for the parties I am disposing of the revision finally at the admission stage itself.
3. The first submission of the learned counsel for the applicant is that the defendant no. 2 died on 4-8-1989 and the application for substitution was filed on 29-1-1990 after more than 150 days, the Suit has therefore, abated automatically against the defendant no. 2. Alongwith the substitution application which was filed by the plaintiff-opposite party much beyond 150 days no separate application under section 5 of the Limitation Act for condoning the delay and no application under Order 22 Rule 9 CPC for setting aside the abatement had been made and, therefore, neither the abatement could be set asi
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