Whether order of abatement can be altered at subsequent point of time?

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6294 of 1995

Decided On: 28.06.2001

Gulabben wd/o Chimanlal Maniar and Ors.
Vs.
Narendra Balchandra and Ors.

Hon’ble Judges/Coram: A.M. Khanwilkar, J.
Citation: 2001 Vol 103(4) BOM L R 540

1. This Writ Petition under Article 227 takes exception to the order dated 14.11.1995 passed by the Judge, Small Causes Court, Bombay in Int. Notice No. 1975 of 1995 in R.A.E. & R. Suit No. 4628 of 1972.

2. The petitioners have filed the above suit in the Court of Small Causes at Bombay praying for possession of the suit premises from the defendants or any other person(s) claiming through or under them. According to the petitioners one Pragji Vallabhadas Ukeda was the tenant in respect of the entire ground floor in the property owned by the petitioners known as “Chudawalla Bungalow” bearing Municipal Ward No. P – 6819 House No. 121 on Daftarl Road. Malad (East), Bombay-64. The said Pragji died on or about 3.9.1971 in the house of his sister defendant No. 1 Krishnabai Vithaldas. The petitioners claim that defendant No. 2 is the widow of Bhalchandra and defendants 3 and 4 are the sons of Bhalchandra who were in possession of the suit premises after the death of said Pragji. The plaint makes reference to other allegations with which we are not concerned in the present matter. The learned counsel for both the sides fairly state that the record before this Court does not indicate that the defendant No. 1 had filed written statement in the said suit. However written statement was filed on behalf of the defendant Nos. 2, 3 and 5 whereby they asserted that they were entitled to occupy the suit premises in their own rights as heirs of the original tenant-deceased Pragji. While this suit was pending it appears that defendant No. 1 died sometime in the year 1986 and this fact was brought to the notice of the Court consequent to which the Court passed order on 16,9.1992 which reads thus :-

“The defendant No. 1 reported dead in the year 1986. The learned advocate for the defendant produced the xerox copy of the Death Certificate. The L & R of the defendant No. 1 are not brought on record in time. Hence the suit stands abated against the defendant No. 1. The suit to proceed against the remaining defendants. Adjourned to 27.10.1992.”
3. It appears that thereafter the suit proceeded further. The proceedings recorded by the Trial Court on 30.8.1995 would be relevant and are being reproduced hereunder, The respondents have placed reliance on the said order which contention will be dealt with a little latter.

The plff. No. 2 Mr. Pankaj presented application for an adjournment on the ground that his Advocate was busy in other Court outside Bombay. He has staled plaintiffs are not going to examine any other witness. As per last endorsement in the notes of evidence dt. 14.8.95 this matter was adjourned for examination of the deft’s witness today. The Ld. Advocate for the defendant Nos. 3, 4 and 5 submitted that his clients do not want to examine any witness or lead any oral evidence on their behalf. Defendant Nos. 3 to 5 are the only contesting defendants. The defendant No. 1 died some time in the year 1986 and his heirs and legal representative were not brought On record. Therefore suit against defendant No. 1 was abated as per the order of the Court in the Rojnama dated 16.9.1992. The defendant No. 2 also expired during the pendency of the suit and deft. Nos. 3 and 4 are the heirs and legal representatives of the deceased defendant No, 2. The deft. Nos. 3 to 5 have decided not to lead any oral evidence therefore matter is kept for argument.”
4. After this order, the petitioners seem to have filed application, which is the subject matter of the present writ petition, being interim Notice No. 1975 of 1995. The said application makes reference to the order passed by the Court on 16.9.1992 and asserts that on the basis of record that has come before the Court it is obvious that defendant No. 1 has not left any heirs and legal representatives and there would be no question of abatement of the suit against her. In para 8 of the application the petitioners have specifically stated that the Court in the interest of justice be pleased to modify and vary the order dated 16.9.1992 and to hold that under order XXII rule 4A of the Code of Civil Procedure the suit can proceed without bringing on record any person representing the estate of the deceased defendant No. 1. The reliefs prayed for in the said application read thus :-

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“(a) this Honourable Court be pleased to modify and/or vary the order dated 16th September, 1992 and this Honourable Court may be pleased under Order XXII Rule 4A, C.P.C. to direct that the suit proceed in the absence of any person representing the estate of the deceased defendant No. 1;

(b) this Honourable Court may pass such further and other orders as may be just and convenient in the circumstances of the case.”

5. In other words, the petitioners approached the Trial Court with specific plea that defendant No. 1 has not left any heir and legal representatives. As mentioned earlier, there is nothing on record to indicate that defendant No. 1 had filed written statement in the said suit. The above said application was however resisted by contesting respondents. The Court below after examining the rival contentions was pleased to reject the application preferred by the petitioners. The Court was mainly influenced by the fact that the petitioners being plaintiffs did not take necessary steps to find out who were the heirs and legal representatives of the deceased defendant No. 1 right from 16.9.1992. therefore, the suit abated as against deceased defendant No. 1. The Court below also observed that there is nothing before the Court that there are no heirs and legal representatives left behind by deceased defendant No. 1 after her death. The Court has also taken into account the fact that the defendants 2 to 5 claimed to be heirs and legal representatives of original deceased tenant. In the circumstances petitioners’ application dated 4.10.1995 has been rejected by the impugned order dated 14.1 1.1995.

6. Learned Counsel for the petitioners submits that the Trial Court has proceeded on erroneous premise that there is nothing on record to indicate that defendant No. 1 has left behind any heirs and legal representatives. On the other hand he contends that specific assertion was made by the petitioners in para 8 of the application that the defendant No. 1 has not left any heir and legal representatives and that this assertion has gone uncontroverted. Relying on the purport of rule 4A of order XXII, the learned Counsel contends that, the issue being procedural one, Court ought to have taken liberal attitude in the matter and entertained the subject application. Learned Counsel further contends that the application clearly sets out the grounds available under rule 4A of order XXII. In the circumstances it is contended that the Court below has clearly glossed over the relevant aspect of the matter and rejected the application by taking into account factors which were not germane for deciding the application. On the other hand learned Counsel for the respondents has supported the order passed by the Court below and adopted the reasons indicated in the impugned order in support of his submission.

7. On considering rival submissions and going through the record it does appear that the defendant No. 1 died somewhere in 1986 and this fact became known to the plaintiffs sometime in 1989, but no application for substitution or for bringing on record heirs and legal representatives of deceased defendant No. 1 was filed. In these circumstances the Trial Court by order dated 16.9.1992 held that the suit stood abated as against defendant No. 1. It is not in dispute that the suit proceeded thereafter and evidence was also recorded. No doubt the petitioners did not take steps for getting the order passed by Trial Court dated 16.9.1992 set aside though participated in the said suit. However, after evidence was let in it transpired that, the defendant No. 1 had left no heirs and legal representatives and in that situation the plaintiffs moved the present application on 4.10.1995. Counsel for the respondents was justified in contending that the petitioner slept over the matter for over three years, but this contention clearly overlooks that the present application came to be filed by the petitioners in changed circumstances after the evidence was let in that deceased defendant No. 1 did not leave behind any heirs or legal representatives. Surely, therefore, nothing precluded the petitioners to invoke the provisions of the Code of Civil Procedure as amended. It is relevant to note thai substantive amendments have been introduced to C.P.C., by the Amending Act of 1976. By the same Amending Act, besides introducing rule 4A, even Sub-rule (4) to Rule 4 has been inserted. It cannot be gain said that, after amendment of 1976, the onus of bringing heirs and legal representatives of deceased defendant No. 1 on record was only on the plaintiffs. However, even the defendants are obliged to take necessary steps. In the present case there is nothing on record that the contesting defendants took any steps more particularly when defendants 2 to 5 assert that they were the heirs of the original tenant deceased Pragji. In that sense, the defendants 2 to 5 have not discharged the burden cast upon them by the amended provisions of the Code of Civil Procedure.

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8. Be that as it may, we are concerned with the scope and ambit of rule 4A of order XXII. Rule 4A, as applicable to the present case, postulates that: if, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment and order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit. On plain language of this provision it would appear that any party to the suit could have taken recourse to this Rule, nay was duty-bound to do so. While doing so, it was enough for the plaintiffs to assert that deceased defendant No. 1 had not left behind any heir or legal representative to represent his estate so as to invoke this rule. The application filed by the petitioners does make this assertion. Moreover the evidence let in during trial would also fortify this position, as contended by the petitioners. But the Court below has erroneously recorded that there is nothing before the Court that no heir and legal representative were left by defendant No. 1 after her death. This finding is therefore rightly criticized by the learned counsel for the petitioners being an error apparent on the face of the record. I find substance in the said submission. In other words, the Court below has applied wrong test while deciding the application in question. Once this finding is reversed, as a necessary corollary, it would follow that the Trial Court will have to re-examine the matter in the context of scope of rule 4A coupled with procedural requirement under Sub-rule (2) of Rule 4A. While doing so, the Court below shall also bear in mind the effect of Sub-rule (4) of rule 4 which postulates that the Court whenever it thinks fit may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such a case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as before the death took place. It is not in dispute that the deceased defendant No. 1 had not filed written statement in the suit, therefore, in terms of Rule 4(4) the plaintiffs were additionally entitled to claim that they could be exempted from the necessity of substituting the legal representatives, in which case the order of abatement of suit as against such defendant was unwarranted and impertinent.

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9. In the circumstances the only appropriate order that could be passed is to remit the matter to the Trial Court to re-examine the application in the context of requirements of Sub-rule (4) of rule 4 as well as rule 4A of order XXII of the Code of Civil Procedure.

10. The argument advanced on behalf of the respondents that the petitioners-plaintiffs had failed to move for setting aside the order passed on 16.9.1992 is of no avail. In my view, the application in question, as is evident from the assertion made therein was taken out only after evidence was let in before the Trial Court and which would go to show that the deceased defendant No. 1 has not left behind any heir or legal representative. In the changed situation the said application was filed by the plaintiffs and therefore it would be wholly in appropriate to non-suit the plaintiffs on the ground that no steps have been taken for setting aside the order dated 16.9.1992. In my view, the observations made by the Trial Court in its order dated 30.8.1995 will have to be understood in the context of fact situation which has come on record. Needless to mention that the order of abatement is not so sacrosanct or inviolable that the same cannot be altered at a subsequent point of time inspite of sufficient cause being shown by the plaintiffs or any other party to the suit. If the party to the suit is able to satisfy the Court that the requirements of Rule 4A or Rule 4(4) are attracted in a given case then the Court may in its inherent powers pass appropriate orders including an order of setting aside abatement on such ground. If the aforesaid rules permit prosecution of the suit in absence of legal representatives of the deceased party, and yet the judgment passed would bind the estate of such deceased party, then surely it would be preposterous to contend that suit against such a person would abate in law. Both these situations would be antithesis to each other. In my view it would defeat the legislative intent behind the Amendment Act of 1976.

11. Understood thus, the Court below ought to examine the subject application in wider perspective. In such a situation, to do substantial justice to the parties the Court ought to exercise inherent powers under section 151 of the Code of Civil Procedure and pass appropriate orders. Incase defendants 2 to 5 are justified in contending and there is material on record to support the contention that they were the heirs of deceased Pragji and could represent the estate of the defendant No. 1 the Court could suitably modify the abatement order and permit the defendants 2 to 5 to represent the estate of defendant No. 1. All questions are left open to be decided by the Trial Court. The Court may re-examine the application in the wake of observations made hereinbefore and decide the same in accordance with law.

12. Accordingly the impugned order is set aside and the matter is remanded back to the Trial Court for re-examination of the subject application in accordance with law.

13. It is rightly pointed out by the learned counsel appearing for both sides that the matter pertains to the year 1972. I hope and trust that the Court below would keep this in mind while deciding the application in question and preferably expedite the hearing of the application as well as the suit.

14. Petition disposed of accordingly. No order as to costs.

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