In the High Court of Judicature at Madras
Dated: 18/01/2006
Coram
The Honourable Mr.Justice S.R.SINGHARAVELU
CRP.(PD) No. 2006 of 2004
And
C.M.P.No.19223 of 2004 and V.C.M.P.No.7589 of 2005
Velayutham S/o Somasundaram
22F, Rajambal Nagar,
Manjjakuppam,
Cuddalore. ... 17th Respondent/
proposed 17th defendant/
Revision Petitioner.
-Vs-
1.Venugopal, S/o Adhimoolam,
Koothapakkam,
Thirupapuliyur,
Cuddalore. ... Petitioner/Plaintiff/
1st Respondent.
2.The Collector,
South Arcot District
Cuddalore.
3.The Settlement Tahsildar,
Tanjore.
4.Pandian S/o Dhandapani Chettiar
5.Sankar, S/o Dhandapani Chettiar
6.Balachandra Chettiar
S/o Dhandapani Chettiar
7.Arumugham, S/o Ramaswamy Padayachi
8.Thirunavukarasu, S/o Palanipillai
9.Manickam, S/o Palanipillai
10.Sankaralingam, S/o Palanipillai
11.Shanmugham, S/o Palanipillai
12.Chandran @ Sankaran, S/o Subramanian.
13.Sasikumar, S/o Subramanian. ... Respondents 1 to 5,9,11 to 16/
Defendants 1 to 5,9,11 to 16/Respondents
Civil Revision Petition under Article 227 of the Constitution of India
against the order dated 10.01.2004 passed in I.A No.142 of 2002 in O.S.No.264
of 2001 on the file of the Principal Subordinate Judge, Cuddalore.
!For Petitioner : Mr.R.Sunilkumar for
M/s Usha Ramanan
^For Respondents : Mr.Dr.G.Krishnamurthi
for R1.
No appearance for R2 to 13.
:ORDER
This Civil Revision is preferred by the proposed 17th Defendant in the
suit who was impleaded as Legal Representative of the deceased 10 th Defendant
by name Somasundaram and who died on 10.10.1993.
2. The first Respondent/Plaintiff has filed O.P.No.17 of 1989 on the
file of the Sub-Court, Cuddalore, seeking to declare him as an informa pauper,
declaration of his title to nine items of suit properties situated in
Koothapakkam Village, Cuddalore Taluk and for recovery of possession on the
ground that the District Revenue Officials arrayed as first and second
Defendants were influenced by the Defendants 3 to 6, engulfing his property
unlawfully under the guise of patta proceedings and also in collusion with
defendants 7 and 9. In the Original Petition, it was further alleged that the
deceased 10th Defendant Somasundaram had also purchased one specific portion
of the suit property as per a sale deed dated 26.6.1980. Among 9 items,
subject matter of suit, the allegation against the deceased 10th Defendant
whose Legal Representative was arrayed as Revision Petitioner, is that one
specific portion of the subject matter of the suit was acquired by 10 th
Defendant under the guise of a sale deed dated 26.6.1980. Unfortunately, the
Original Petition has not been drafted in such a way to include a prayer to
set aside the said sale. However, delivery of possession was required in
respect of all suit items. Since that Original Petition regarding indigent
issue was dismissed on 18.9.1992, the first Respondent/Plaintiff preferred
appeal before this Court in C.M.A. No.1313 of 1993.
3. A poor man who could not pay Court Fees although he filed the
Original Petition before the Sub-Court, Cuddalore in the year 1989, was able
to succeed in treating him as informa pauper, only on 16.3.2001, by virtue of
the order of this Court in C.M.A.No.1313 of 1993. It is thereafter, the O.P.,
was converted into suit in O.S.No.264 of 200 1 on the file of Sub-Court,
Cuddalore, where the first Respondent/ the sole plaintiff filed an application
in February, 2002 in I.A.No.142 of 2002, to implead this Revision Petitioner
as Legal Representative of the deceased 10th Defendant Somasundaram, on the
ground that he had knowledge of death of the 10th Defendant only on 4.12.2001.
True, it is that there was no petition to set aside the abatement filed by the
plaintiff in the trial Court. But considering the fact that similar
application in I.A.No.543 of 2002 was allowed on 4.6.2003 in getting impleaded
the Defendants 18 to 21 as Legal Representatives of the deceased 6th Defendant
and also by considering the fact that the said application to implead the
Legal Representative of 10th Defendant was within 90 days from the date of
knowledge of death, the Trial Court had entertained that application and
allowed the same, which is the order agitated here.
4. True, it is that Article 120 of the Limitation Act provides that
the time for preferring application to implead the Legal Representatives of
deceased/defendant is 90 days from the actual date of death and not from the
date of information of such death to the plaintiff. In this case, the 10th
Defendant Somasundaram died on 10.10.1993. Since no steps have been taken to
implead the Legal Representatives of the deceased within 90 days from the
actual date of death, as contemplated under Article 120 of the Limitation Act,
the suit against the 10 th Defendant gets abated automatically.
5. According to the learned counsel for the Revision Petitioner,
without filing an application to set aside the abatement caused against the
10th Defendant, and without even filing an application for condoning the delay
in filing the application to implead the Legal Representative of the 10th
Defendant, the impugned order passed by the trial Court is erroneous.
6. In this connection, reliance was placed by the Revision Petitioner
in a case law reported in Union of India v. Ram Charan (AIR 1964 SC 215),
which referred to an earlier decision of a Full Bench of Punjab High Court, in
Firm Dittu Ram Eyedan v. Om Press Co. Ltd., (AIR 19 60 Punj 335). In the
above cited Ram Charan’s case (supra), there was a money decree passed against
the Union of India on 6.1.1955 at the instance of plaintiff Ram Charan, who
died on 21.7.1957. In the appeal preferred by Union of India before the High
Court of Punjab, an application to implead the Legal Representatives of the
deceased Ram Charan was filed on 18.3.1958 with an affidavit to the effect
that they had knowledge of the death of Ram Charan only on 3.2.1958. Among
the two legal heirs proposed in the application filed by the Union of India,
one was the widow and the other was the adopted son of deceased Ram Charan.
The widow contended that she alone was the Legal Representative of the
deceased Ram Charan, based upon a Will in her favour. Therefore, she wanted
to take up the question of abatement as a preliminary point. The appeal filed
by the Union of India was dismissed as abated. A Special Leave Petition was
preferred by the Union of India, before the Supreme Court, where it was held
that as the defendant not even mentioned the fact of abatement in the
affidavit filed in support of the application to implead the Legal
Representatives of the deceased, the same cannot be entertained.
7. The above said decision of the High Court of Punjab, which was
confirmed by the Supreme Court in (AIR 1964 SC 215)(supra), relied on the Full
Bench of Pubjab High Court, reported in Firm Dittu Ram Eyedan v. Om Press Co.
Ltd., (AIR 1960 Punj 335), which held that ignorance of the death was not a
sufficient cause for setting aside the abatement, when an application to bring
the Legal Representatives of the deceased on the record, was made after the
expiry of the period of limitation, as the law imposed an obligation on the
person applying for bringing the Legal Representatives of the deceased on the
record and he had, therefore, to show absence of want of care.
8. As against which before the Supreme Court the appellant/ defendant
viz., the Union of India in the case of Ram Charan raised the point that the
High Court itself has got inherent power to implead the legal representatives
of the deceased to do full justice to the party. It was held that there was
no force in that contention and that the Court is not to invoke its inherent
powers under Section 151 C.P.C., for the purpose of impleading the legal
representatives of the deceased respondent, if the suit had abated on account
of the appellant in not taking appropriate steps within time to bring the
legal representatives of the deceased party on the record, and when its
application for setting aside the abatement is not allowed on account of its
failure to satisfy the Court that there was sufficient cause for not filing
the application for impleading the legal representatives of the deceased in
time and for not applying for the setting aside of the abatement within time.
9. For the next contention raised by the Union of India before the
Supreme Court in the above said Ram Charan’s case, that the expression
“sufficient cause” should be liberally considered in order to advance the
cause of justice, it was held that the provisions of the Code are with a view
to advance cause of justice. Of course, the Court, in considering whether the
appellant has established sufficient cause for his not continuing the suit in
time or for not applying for the setting aside of the abatement within time,
need not be over-strict in expecting such proof of the suggested cause as it
would accept for holding certain fact established, both because the question
does not relate to the merits of the dispute between the parties and because
if the abatement is set aside, the merits of the dispute can be determined
while, if the abatement is not set aside, the appellant is deprived of his
proving his claim on account of his culpable negligence or lack of vigilance.
This, however, does not mean that the Court should readily accept whatever the
appellant alleges to explain away his default. It has to scrutinize it and
would be fully justified in considering the merits of the evidence led to
establish the cause for the appellant’s default in applying within time for
the impleading of the legal representatives of the deceased or for setting
aside the abatement.
10. Even in the case reported in AIR 1960 Punjab 335 (FB) (supra)
which was relied on in the above said Ram Charan’s case, the following was
observed:-
“The above is a representative, though not an exhaustive review of the case
law expressing somewhat divergent views. On the one side through the wide
gamut of judicial decisions three currents are noticeable. There is the
extreme view which is to the effect that through lapse of time a valuable
right is secured and it should not be extended in the absence of strong
grounds and the burden lies heavily upon the person seeking indulgence, of
showing sufficient cause justifying delay in bringing the legal
representatives on the record within the period prescribed. On the other
extreme is the view expressed in decisions of Patna, Madras and Nagpur High
Courts that after notice has been served on the respondent, appellant’s duty
comes to an end and he is not bound to inquire as to whether respondent is
dead or alive. Neither of these views appears to be justified.
Law casts a duty upon the plaintiff or the appellant, as the case may
be, to bring the legal representatives of the deceased on the record, lest a
decree should be obtained against a dead person which is of no legal effect.
The duty cannot be deemed to be discharged once notice is served on the
respondent. A suit or appeal abates automatically after the expiration of
ninety days of the death of the deceased defendant or respondent.
Under common law a right of action is said to “abate” on the death of
a defendant, it does not simply mean its suspension or discontinuance, it
means an extinguishment of the very right of action itself. The right of
prosecuting the suit is effectually wiped out as if it had never existed.
When a suit abates, it ceases, terminates or comes to an end prematurely. In
the common law sense, therefore, when a suit abates it is absolutely dead but
in equity a suit when abated was merely in a state of suspended animation and
might be revived.
… If the applicant satisfies the Court that there was no want of
diligence on his part, that he acted in good faith and not in a negligent
manner, his inaction may not be visited with grave consequences. In other
words, it is for him to allege and prove not only that he remained ignorant of
the death of the deceased and thus could not bring his legal representatives
on the record, but further to show that his ignorance could not be attributed
to absence of negligence or want of sufficient vigilance.”
11. In the above cited case in order to avoid remand it was
considered whether there was sufficient evidence or circumstances indicating
sufficient cause for condoning the delay. By taking note of the conditions
resulting from the partition of the country were exceptional, as very large
sections of population on both sides of the frontier were forced to migrate
under unusual and unprecedented circumstances and it was humanly impossible
for the plaintiffs in that case to keep trace of the defendants who had no
settled abode, and were scattered all over the country without there being any
clue or information of their whereabouts. Therefore considering that the
plaintiffs’ conduct in that case could not be blameworthy or negligent
abatement was set aside. The Sub-Judge, was directed to proceed with the case
after bringing the legal representatives of the deceased parties on the
record.
12. As the law laid down in AILR l960 (FB) Punjab 35 got confirmed by
the Supreme Court in Ram Charan’s case (supra), the earlier verdict in
Secretary of State v. Vinjamuri Kistnamacharyalu (AIR 1938 Madras 218)(DB)
and in Ramalingam v. Koteswara Roa (AIR 1949 Madras 624)that the fact that
the applicant seeking to set aside the abatement was not aware of the death of
the party whose legal representatives have to be brought on record,
constituted a sufficient cause, for condoning the delay, in seeking to set
aside the abatement is no more good law. This is the effect of the verdict of
the Supreme Court in Ram Charan’s case, and that Supreme Court’s verdict only
countenanced the Full Bench judgment of the Punjab High Court in (AIR 1960
Punj 335), wherein it was held that “a party who has obliged to apply for
impleading legal representatives of the deceased opponent to allege and prove,
not only that he remained ignorant of the death of the deceased, but also that
his ignorance could not be attributed to absence of negligence or one of
sufficient vigilance on his part.”
13. Now coming to the facts of the case even during the pendency of
C.M.A.No.1313 of 1993 before this Court, the endeavour to serve notice on 10th
Respondent (Somasundaram) failed only on the view expressed by the process
wing of the Court that the said Somasundaram died. Even then there was lack
of diligence on the part of this 1st Respondent/sole Plaintiff to take further
steps in impleading L.Rs. In the C.M.A. Itself which was pending in this
High Court. Thus, there was an opportunity for him to know the death of the
10th defendant even during the C.M.A. Proceedings. No diligence was shown by
the first Respondent/the sole plaintiff either to implead the legal
representatives or even later on to file an application to set aside the
abatement and to file an application under Section 5 of the Limitation Act for
condoning the delay in filing an application to set aside the abatement.
Therefore, the first respondent/plaintiff cannot maintain the suit against the
deceased 10th defendant as the suit already got abated.
14. However, the first respondent/plaintiff is a poor man who filed
the pauper O.P., as early as in the year 1989 and was declared pauper by this
Court in 2001 and was able to get his O.P., converted into suit only in the
year 2001. His grievance also was that with the influence of Revenue
Officials, his lands were taken away by influential defendants. So far as the
specific portion of land in the subject matter of suit taken away by the
deceased 10th defendant, even though his suit against the 10th defendant got
abated, in all fairness and in the interest of justice, he shall have to be
permitted to proceed against the remaining defendants regarding the other
properties. Negation of such rights on the face of its allegation of
oppression with influence upon individuals in power, and that too, after 14
long years of fight to get him declared even as indigent, may cause
miscarriage of justice.
15. This situation is fortified in a case law reported in State of
Punjab v. Nathuram (AIR 1962 SC 89). In that case it was held that ‘ when
there was no abatement of the appeal against the co-respondent of the deceased
respondent, there can be no question of abatement of appeal against them,
regarding which the following observation was made:-
“The question whether a court can deal with such matters or not, will depend
on the facts of each case and therefore no exhaustive statement can be made
about the circumstances when this is possible or is not possible. It may,
however, be stated that ordinarily the considerations which weigh with the
Court in deciding upon this question are whether the appeal between the
appellants and the respondents other than the deceased can be said to be
properly constituted or can be said to have all the necessary parties for the
decision of the controversy before the Court. The test to determine this has
been described in diverse forms. Courts will not proceed with an appeal (a)
when the success of the appeal may lead to the court’s coming to a decision
which will be in conflict with the decision between the appellant and the
deceased respondent and therefore which would lead to the court’s passing a
decree which will be contradictory to the decree which had become final with
respect to the same subject-matter between the appellant and the deceased
respondent; (b) when the appellant could not have brought the action for the
necessary reliefs against those respondents alone who are still before the
court and 8 when the decree against the surviving respondents, if the appeal
succeeds, will be ineffective, that is to say, it could not be successfully
executed.”
16. Even though the facts of the case did not allow the suit to be
continued against the co-defendants the principle was very much laid down, as
above, which was later on referred in Punjab State v. Kabul Singh and others
(AIR 1968 Punjab and Haryana 340).
17. Thus, this Civil Revision Petition is allowed in so far as the
deceased 10th defendant Somasundaram and his legal representative, the
Revision petitioner is concerned. In other respects the suit may continue
against other co-defendants. The order dated 10.01.2004 passed in I.A No.142
of 2002 in O.S.No.264 of 2001 on the file of the Principal Subordinate Judge,
Cuddalore is set aside. No costs. Consequently, C.M.P.No.19223 of 2004 and
V.C.M.P.No.7589 of 2005 are closed. The trial Judge is directed to dispose
the case before the end of 2006, without requiring any further time, which may
only be considered in extraordinary circumstances.
Index:Yes
Internet:Yes
gr.
To
The Principal Subordinate Judge, Cuddalore.