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IN THE HIGH COURT OF ALLAHABAD
D.K. Seth, J.
S.K. Masood Alias Zafar and Others – Appellants
Versus
Wahid Ahmad Ansari and Another – Respondents
Civil Revision No. 194 of 1995
Decided On : 14-05-1997
ORDER XV, RULE 5, CODE OF CIVIL PROCEDURE - STRIKING OF DEFENCE ON FAILURE TO DEPOSIT ADMITTED RENT - APPLICABILITY AND SCOPE - INTERPRETATION - REVISION APPLICATION - DISMISSAL OF APPLICATION FOR SUBSTITUTION - SUBSTITUTION OF HEIRS - LIMITATION - ARTICLE 137 OF THE LIMITATION ACT - APPLICABILITY - MAIN LEGAL POINT - INTERPRETATION OF ORDER XV, RULE 5 OF THE CODE OF CIVIL PROCEDURE AND ITS APPLICABILITY IN EVICTION SUITS - REVISION APPLICATION - DISMISSAL OF APPLICATION FOR SUBSTITUTION - SUBSTITUTION OF HEIRS - LIMITATION - ARTICLE 137 OF THE LIMITATION ACT - APPLICABILITY
Fact of the Case:
The opposite party No. 2 filed an application for dismissal of the revisional application on account of the death of opposite party No. 1. The Defendant applicants filed an application for substitution seeking to substitute the heirs of the deceased Plaintiff opposite party No. 1. The Defendant applicants contended that since one of the heirs of the deceased namely the opposite party No. 2 is already on record and represents the joint interest of the heirs, therefore there is no scope of abatement of the proceedings. The opposite party No. 2 contended that the application for substitution filed on 4.4.1997 cannot be entertained since the same has been filed after expiry of 90' days without any application u/s 5 of Indian Limitation Act for condonation of delay.
Finding of the Court:
The court held that the application for substitution filed on 4.4.1997 is allowed and the heirs mentioned in the said application be brought on record and the cause title be corrected accordingly. The application dated 12.12.1996 filed by the opposite party No. 2 is dismissed. The opposite party No. 2 may be appointed as guardian for opposite party No. 1/11 Rahman Ahmad (minor). The court further held that the impugned order striking out the defence is upheld, but the striking of defence would not disentitle the Defendant-applicants to adduce evidence with regard to determination of quantum or period or right or interest or arrears or liability to pay inter se Defendants-applicants. The Defendant-applicant No. 1 may also adduce evidence to prove that he having not been a tenant is not liable to pay rent which is the liability of Defendant-applicants No. 2 and 3 exclusively.
Issues: 1. Whether the application for substitution filed after 90 days without an application for condonation of delay under Section 5 of the Indian Limitation Act is maintainable? 2. Whether the heirs of a deceased Plaintiff can be substituted in a revision application under Article 137 of the Limitation Act? 3. Whether the striking out of defence under Order XV, Rule 5 of the Code of Civil Procedure is justified in the present case?
Ratio Decidendi: 1. The court held that the application for substitution filed after 90 days without an application for condonation of delay under Section 5 of the Indian Limitation Act is maintainable since one of the heirs of the deceased Plaintiff is already on record and represents the joint interest of the heirs, and there is no scope of abatement of the proceedings. 2. The court held that the heirs of a deceased Plaintiff can be substituted in a revision application under Article 137 of the Limitation Act, as the limitation period for substitution in a revision application is governed by Article 137 and not by Article 120. 3. The court held that the striking out of defence under Order XV, Rule 5 of the Code of Civil Procedure is justified in the present case as the Defendant-applicants failed to comply with the provisions of the rule and did not make a representation within the time prescribed under Sub-rule (2) to avoid the striking out of defence.
Final Decision: The court allowed the application for substitution and dismissed the application for dismissal of the revisional application. The court also upheld the impugned order striking out the defence, but allowed the Defendant-applicants to adduce evidence with regard to determination of quantum or period or right or interest or arrears or liability to pay inter se Defendants-applicants.
D.K. Seth, J.
The opposite party No. 2 on 12.12.1996 filed an application for dismissal of the revisional application on account of death of opposite party No. 1. The opposite party No. 1 died on 6th November, 1996, which is not disputed by the Defendant applicants. The Defendant applicants on the other hand filed an application for substitution on 4.4.1997 seeking to substitute the heirs of the deceased Plaintiff opposite party No. 1. Two applications namely application dated 12.12.1996 for dismissal of the revisional application and the application dated 4.4.1997 for substitution were taken up for hearing.
2. Sri M. S. Haq, learned Counsel appearing on behalf of opposite party No. 2 contended that the application for substitution filed on 4.4.1997 cannot be entertained since the same has been filed after expiry of 90' days without any application u/s 5 of Indian Limitation Act for condonation of delay. Sri M.C. Tewari, learned Counsel for the Defendant-applicants contends that since one of the heir of the deceased namely the opposite party No. 2 is already on record and represents the joint interest of the heirs, therefore there is no scope of abatement of the proceedings. In support he relies on the decision in the case of Mahabir Prasad Vs. Jage Ram and Others, (1971) 1 SCC 265, Secondly, he contends that limitation of 90' days for substitution would not apply in a revision before the High Court. In view of decision in the case of Chandradeo Pandey and Others Vs. Sukhdeo Rai and Others, AIR 1972 All 504, the limitation would be governed under Article 137 of the Schedule to the Limitation Act, which is three years and, therefore, no application u/s 5 of Indian Limitation Act, would be necessary.
3. Admittedly, the suit is a suit for eviction of the Defendant-applicants who are three in number. The said three Defendant-applicants were alleged to be the tenant under the Plaintiff opposite parties. No case of splitting of tenancy or splitting up of interest of the landlord have been pleaded. Both the interest in the property have been pleaded to be joint while tenancy has also not been pleaded to be separate. The heirs sought to be substituted are also interested jointly in the property. All the heirs jointly inherited the interest of the deceased and, therefore, there is no splitting up of interest of any of the heirs in respect to the suit property. Such joint interest is also existing in the opposite party No. 2 who is one of the heirs of the deceased. Amongst the heirs, one is also minor for whom, the mother namely opposite party No. 2 had prayed for appointment of herself as guardian of the minors.
4. In the case of Mahabir Prasad (supra) it is held, the fact that the person jointly interested in the decree has been made a party-Respondent and on his death his heirs have not been brought on the record, does not per se divest the appellate court of his jurisdiction to pass decree in appeal under Order XLI, Rule 4 of the Code of Civil Procedure. The jurisdiction of the appellate court under Order XLI, Rule 4 of the Code is open when the other persons who are parties to the proceeding before the subordinate court and against whom a decree proceeded on a ground which was common to the Appellant and to those other persons are either not impleaded as parties to the appeal or has been impleaded as Respondents. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be scribed by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate.
5. In the facts and circumstances of the present case the ratio decided in the case of Mahabir Prasad (supra) is attracted in full force. Inasm
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