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2012 Supreme(All) 2302
ALLAHABAD HIGH COURT
Sudhir Agarwal, J.
Kishalaya Banerjee and Others -Appellant
Versus
Kamla Devi Budhia Dharamshala Trust -Respondent
Writ A. No. 44960 of 2012
Decided On : 05-09-2012
The main legal point established in the judgment is the importance of adhering to the prescribed time limits for filing substitution applications and setting aside abatement, as well as the need for courts to exercise discretion in favor of parties seeking to set aside abatement.
Headnote:
Substitution - Small Cause Suit - Order 22 Rule 4, Order 22 Rule 9, Article 120 of Limitation Act, 1963 - The court discussed the provisions of Order 22 Rule 4 and Rule 9 of the Civil Procedure Code, as well as Article 120 of the Limitation Act, 1963, in the context of substitution and abatement of a Small Cause Suit. The court emphasized the importance of filing a substitution application within 90 days from the date of death and the subsequent 60-day period for setting aside abatement. The judgment highlighted the need for courts to consider the substance of the application and exercise discretion in favor of parties seeking to set aside abatement.
Fact of the Case:
The plaintiff filed a Small Cause Suit seeking ejectment of the defendant-tenant and recovery of arrears of rent. The defendant died, and the plaintiff filed applications for substitution of legal heirs. The courts below allowed the substitution and rejected the petitioners' application for abatement of the suit.
Finding of the Court:
The court found that the applications for substitution were filed within the prescribed time limits and that there was no occasion for abatement of the suit. It emphasized the need for courts to exercise discretion in favor of parties seeking to set aside abatement.
Issues: The issues involved the filing of applications for substitution and abatement of the Small Cause Suit following the death of the defendant-tenant.
Ratio Decidendi: The court emphasized the importance of filing a substitution application within 90 days from the date of death and the subsequent 60-day period for setting aside abatement. It highlighted the need for courts to consider the substance of the application and exercise discretion in favor of parties seeking to set aside abatement.
Final Decision: The court dismissed the writ petition, finding no reason or justification to interfere with the impugned orders.
1. The order under challenge is dated 21.01.2012 passed by Small Cause Court/Civil Judge (Senior Divison), Varanasi allowing substitution application in respect to defendant Sunil Kumar Banerjee who died on 09.10.2006 and revisional order dated 27.07.2012 passed by District Judge, Varanasi dismissing Revision No. 07 of 2012 against aforesaid order dated 21.01.2012.
2. Learned counsel for the petitioners submitted that the defendant died on 09.10.2006 while application for substitution was filed on 29.01.2007, i.e., beyond 90 days and without there being any application for condonation of delay, it was liable to be rejected but the courts below have committed patent error in allowing substitution and rejecting petitioners' application of abatement of S.C.C. Suit No. 16 of 2005. He has placed reliance on Apex Court's decisions in Ragho Singh Vs. Mohan Singh and others, 2000(91) R.D. 689 and Mahabir Singh Vs. Subhash and others, 2008(1) AWC 165 as well as this Court's decision in K.B. Agarwala Vs. Smt. Chandrawati and others, AIR 1976 All 15 and (Smt.) Mahendra Kaur Vs. Hafiz Khalil, 1987 RD 392 FB.
3. The basic submission of Sri A.K. Singh, Advocate for considering as to who are the legal heirs and representatives of deceased defendant the Trial Court had to permit the parties to adduce evidence whereafter the matter was clear about legal heirs/representatives. In these circumstances petitioners is that after the death of defendant, if no substitution is filed within 90 days, by operation of law the suit would abate and it does not require any formal order. Thereafter it can revive only if the abatement is set aside on an application filed by plaintiff explaining delay and not otherwise. It is in these context he has cited and relied on the authorities, referred above. He further submitted that both the courts below have not looked into this aspect of the matter correctly, therefore, the impugned orders are liable to be set aside.
4. Before coming to the submissions advanced by learned counsel for the petitioners, I am just giving, in brief, the relevant facts of this case for better understanding of issues involved in this matter.
5. The plaintiff-respondent, Smt. Kamla Devi Budhia Dharamshala Trust through its Managing Trustee filed Small Cause Suit No. 16 of 2005 seeking ejectment of defendant-tenant, namely, Sri Sunil Kumar Banerjee (now deceased) from the premises in dispute and recovery of arrears of rent/damages. Copy of plaint dated 19.04.2005 is on record as Annexure-3 to the writ petition.
6. A written statement was filed by defendant-tenant, Sri Sunil Kumar Banerjee on 18.05.2006. He died on 09.10.2006. The counsel who was representing the defendant-tenant, Sri Sunil Kumar Banerjee informed the court on 04.11.2006 about the death of his client as contemplated under Order 22 Rule 10-A of C.P.C. After coming to know of this fact, the plaintiff filed an application on 09.11.2006 requesting the Court that counsel of deceased-defendant be directed to give particulars of legal representatives/heirs, if any, of defendant-tenant. The said application was taken up by Trial Court on 21.12.2006 whereupon the court passed following order:
@ Hindi @
"Case called out. Heard on Application 137C. Defendant has died, therefore, the plaintiff himself shall get information regarding his heirs. 137C is disposed of accordingly. Put up the file on 29.01.2007." (English translation by the Court)
7. On 29.01.2007 the plaintiff-respondent filed application for amendment/substitution of one Pavitra Deo Banerjee. This was registered as Paper No. 38C. Sri Pavitra Deo Banerjee filed objection (Paper No. 55C) stating that Late Sunil Kumar Banerjee has left his wife Beena Banerjee, three sons namely, Anirudha Banerjee, Tapas Banerjee and Kisle Banerjee as also one daughter, namely, Keka Chatterjee as legal heirs and they should be impleaded. On this issue the Trial Court permitted the parties to adduce evidence and found that the person
