1983 Supreme(MP) 733

IN THE HIGH COURT OF MADHYA PRADESH
S.S. Sharma, J.
Kaushalyabai - Petitioner
Vs.
Aisha Bi - Respondent
S.A. No. 275 of 1975 (J)
Decided On : 24-01-1983

Headnote:(1)Civil Procedure Code, 1908 – O.22, R.9 – abatement – setting aside of fact of death known from very beginning – no sufficient ground alleged – abatement not set aside.

       (2) Civil Procedure Code, 1908 – O.22, R.10 – A – applicability of – fact of death known to both parties – provision under is of no assistance.

       (3) Civil Procedure Code, 1908 – O.1, R.10(2) – appeal abated – addition of parties cannot be ordered.

        Short Note

       On 17 – 1 – 1981 an application under order 22 rules 4 and 9 of the Code of Civil Procedure (hereinafter – referred to as the Code) was submitted on behalf of the appellants stating that plaintiff – respondent No.1 Smt. Aisha Bi expired on 26 – 3 – 1978. The prayer was for setting aside the abatement and for bringing the legal representatives of Aisha Bi on record. An application for condonation of delay was also submitted. On behalf of the proposed legal representatives the prayers for setting aside of the abatement and condonation of delay were opposed. In view of the dispute the matter was sent vide order dated 31 – 3 – 1982 for an enquiry and report. The Court below on the evidence as was adduced by the parties submitted his report holding that "the appellants knew that Smt. Aisha Bi had died on 26 – 3 – 1978, that day itself, or soon after wards and not on 14 – 1 – 1981."

       2. Held: Appellant No.1 Kaushalyabai is the wife of appellant No.3 Premnarayan who is a Patwari. In the enquiry Premnaryan and Rajaram were examined on behalf of the appellants while Abdulsubhan, a tailor, who was living in the neighbourhood of the parties has been examined on behalf of the proposed legal representatives.

       3. Admittedly the house of the parties are adjoining to each other. On Premnarayan's own showing from 27 – 5 – 1974 to 16 – 4 – 1980 he was posted as Patwari in Dhana and used to come to Sagar for official work. During that period his son and daughters were receiving education at Sagar. The daughters used to live in the adjoining house. I have gone through the evidence and am fully satisfied that the finding of the Court below is fully justified.

       4. Learned counsel for the appellants contended that the counsel for the deceased Aisha Bi did not inform about the death of his party as required by Order 22 rule 10 – A of the Code. This is of no assistance to the appellants as in instant case they themselves knew about the death of Aisha Bi.

       5. The submission that there would be recurring cause of action is wholly misconceived. It was then urged by the learned counsel for the appellants that the legal representatives of respondent Aisha Bi should be brought on record under Order 1 rule 10(2) of the Code. He in this connection placed reliance on an order dated 26 – 2 – 1980 passed in Mancheta v. Smt. Sunder Bai and Ors. (Civil – Revision No. 137 of 1980) and the decision in Mahomedally Tyebally and others v. Safiabai and others (AIR 1940 PC 215). In Mancheta Bai's case (supra) the suit was for petition of joint Hindu family property and apart from deceased Remprased there were other defendants also. It was held that if the property was joint Hindu family property the widow and daughter also shall have a share. The question of abatement was neither raised nor decided. In those circumstances it was held that the widow and daughter, if not necessary, are proper parties. The objection of limitation was left open.

       6. The facts of the aforesaid Privy Council case are also inapplicable to the instant case. In the appeal bas abated, the question of adding parties under Order 1 rule 10(2) of the Code does not arise.

       7. No cause for setting aside of the abatement or condonation of delay having been made out, the abatement cannot be set aside. Accordingly, the applications in that behalf stand rejected. The application under Order 1 rule 10(2) of the Code is also dismissed. AIR 1940 PC 215 distinguished. Appeal dismissal as having abated.