1983 Supreme(MP) 846

IN THE HIGH COURT OF MADHYA PRADESH
K.N. Shukla, J.
Ghisa – Applicant
Versus
Uda – Non-applicant
C.R. No. 883 of 1972 (I)
Decided On : 07-01-1983

Headnote:(1) Limitation Act, 1963 – S. 5 – delay not justified – prayer for condonation cannot be allowed.

       (2) Limitation Act, 1963 – S. 14 – abnormal delay caused by filling second suit – such second suit not maintainable – delay cannot be condoned.

       (3) Civil Procedure Code, 1908 – O.22, R. 3 and 9 – suit dismissed as abated – same Court cannot hold that suit was not dismissed.

       (4) Civil Procedure Code, 1908 – O 22, R. 9 (2) – application under filed after undue delay – delay not justified – application dismissed.

        Short Note

       1. A few relevant facts may be stated: One Nandibai brought a suit (C. S. No. 9 – A of 1969) for possession against the defendant Ghisa, who is the applicant in this revision petition. Nandibai died during the pendency of the suit. Non – applicant Uda filed an application, purporting to be under Order 22, rule 3 CPC on 12 – 4 – 1966 for being substituted in place of the deceased plaintiff. In the application he had pleaded that he had succeeded to the property of the plaintiff Nandibai by virtue of a will. Non – applicant Uda had simultaneously applied before the District Judge for obtaining a probate of the will. The trial Court stayed the proceedings in the suit. Non – applicant Uda's application for probate was dismissed by the District Judge. Thereafter defendant Ghisa applied that the suit be dismissed as abated. The trial Court dismissed the suit by order dated 6 – 2 – 1971 as abated. This order was passed in the presence of the non – applicant Uda.

       2. In the meantime Uda had appealed against the order of the District Judge before the High Court in the probate matter and the High Court by its order, dated 26 – 2 – 1973 allowed the appeal and granted probate to Uda. Uda, however, did not take any further action in the original suit, which was dismissed abated. Instead after more than three years i.e. on 10 – 11 – 1976 he filed a fresh suit on the same cause of action. An objection was raised that the suit on the same cause of action was not maintainable in view of the bar contained under Order 22 rule 9 C.P.C. The object was dismissed by the trial Court, but in revision the High Court by its order dated 2 – 2 – 1981 held that the suit was barred in view of the embargo under order 22, rule 9 C. P. C.

       3. On 10 – 3 – 1981 non – applicant Uda filed a fresh application in the original suit No. 9 – A of 1963, purporting to be under Order 22 rule 9 (2) C.P.C. and S. 14 of the Limitation Act read with Article 137 of the said Act. In this application he prayed that the order dated 16 – 2 – 1971 had not disposed of his application for substitution under Order 22, rule 3 C.P.C. but had merely observed that the suit had abated because probate was not obtained by Uda nor any stay order bad been secured by him from the High Court. The application was,' therefore pending for decision. During this period the non – applicant bonafide instituted another suit under a wrong advice of counsel. In fact no probate was necessary for bringing his name on record in place of the deceased plaintiff and any case after grant of probate, non – applicant was entitled to apply for setting aside the abatement and reviving his application for substitution. This, however, he did not do due to wrong advice tendered to him by his counsel. In these circumstances non – applicant prayed that the order dismissing the suit as abated may by reviewed and set aside and non – applicant Uda's name be substituted in place of the deceased plaintiff. It Was also prayed that the delay in making this application may be condoned on the aforesaid ground. This application was opposed by the defendant Ghisa.

       4. The Court below, however, held that the application filed by Uda, the proposed legal representative, under Order 22, rule 3 C. P. C., was not disposed of and the same was still pending even though the Court earlier had ordered on 16 – 2 – 1971 that the suit had abated. He therefore, directed that Civil Suit No 9 – A of 1969 should be restored to file and application under Order 22, rule 3 C.P.C. dated 12 – 4 – 1968 should be taken up for consideration.

       Held : After hearing the learned counsel I am satisfied that this order is totally erroneous and contrary to law and procedure. The earlier order dated 16 – 2 – 1971 Cleary mentioned that the suit was dismissed as abated. Whether the order was right or wrong is not the question to be considered at this stage. In any case it was not open to the same Court to hold that the order did not amount to dismissal due to abatement. The order was final and till it was set aside by an appellate or a revisional Court, it was operative between the parties. It was not disputed that no application was filed for setting aside that abatement within – the period of limitation. In fact the period of limitation had expired 60 days after the order dated 16 – 2 – 1971 was passed. Non – applicant Uda might have' with some justification filed an application for setting aside the abatement after he secured "the probate through the High Court on 26 – 2 – 1973, praying for condonation of delay on the ground that he was entitled to be substituted on the basis of the probate obtained by him, in appeal, but he did not do so. He sat quiet for more than three years after 26 – 2 – 1973 and filed a suit for possession on 10 – 11 – 1976. There was no justification for this delay and this delay could not be condoned under section 5 of the Limitation Act. The period during which he prosecuted the second suit was also not condonable because manifestly such a suit was not maintainable. Thus, the application for setting aside the abatement was barred by limitation and there was no sufficient cause for condoning such an abnormal delay.

       5. To get over this problem the Court below held that actually the suit had not abated and the application for substitution under Order 22, rule 3 C.P.C. still subsisted for consideration. This observation had no basis and in any case it was contrary to the specific finding of this Court in Civil Revision i.e. 506 of 1978, dated 2 – 2 – 1981, between the same parties. In the said order this Court in para 11 observed "if by this argument the learned counsel suggests that the application for substitution made in the earlier suit was still pending as it remained undecided, he is clearly in error".

       6. Thus, I find that the Court below had no jurisdiction to restore the suit to file and to proceed to consider the application dated 12 – 4 – 68 under Order 22 rule 3 for substitution of non – applicant in place of deceased plaintiff Nandibai. The order is set aside and consequently the non – applicant's application purporting to be under Order 22, rule 9(2) C.P.C. stands dismissed. Revision allowed.