CHAMPA BAI Vs. BHOLARAM

JUDGEMENT

(1.) The appellant/plaintiff has challenged the order passed by the learned Additional District Judge, Link Court Kurud, District Dhamtari in Civil Appeal No. 89A of 2016 dtd. 13/11/2018 whereby the application moved by the plaintiff under Order 22 Rule 9 (2) of CPC along with an application under Sec. 5 of the Limitation Act was rejected and the suit stood abated for defendant No.3 namely Rajbantin Bai.

(2.) The facts of the present case are that a civil suit was filed by the plaintiff for declaration of title and permanent injunction with regard to suit property mentioned in Schedule-A and Schedule-B, which was dismissed by the learned trial Court vide judgment dtd. 18/9/2015. During the pendency of the suit, defendant No.3 namely Rajbantin expired on 13/9/2015 when the matter was closed for judgment by the learned trial Court however the judgment was not passed. A regular civil appeal was preferred by the plaintiff before the learned Additional District Judge, Kurud and the summons was issued to the defendants/respondents. After going through the service report, the plaintiff came to know that defendant No.3 Rajbantin Bai had expired prior to judgment on 13/9/2015 therefore he moved an application under Order 22 Rule 4 of CPC for bringing her legal representatives on record on 14/10/2016. The application was rejected by the Court below vide order dtd. 15/5/2017 on the ground that the application for substitution of legal representative of Smt. Rajbantin Bai was not supported with an application for setting aside abatement and an application for condonation of delay as the application under Order 22 Rule 4 of CPC was not moved within the prescribed limitation period. Learned Appellate Court also observed that the appellant/plaintiff may move an application under Order 22 Rule 9(2) of CPC for setting aside abatement. The appellant moved an application under Order 22 Rule 9 of CPC along with an application under Sec. 5 of the Limitation Act for condonation of delay on 19/6/2017. The defendants filed a reply to that application. Learned Appellate Court vide order dtd. 13/11/2018 rejected the application moved by the plaintiff under Order 22 Rule 9(2) of CPC on the ground that no steps were taken to substitute legal representatives of defendant No.3 - Rajbantin Bai. It is also observed that the application under Sec. 5 of the Limitation Act in support of the application under Order 22 Rule 9(2) of CPC is not tenable. Thereafter, the case was fixed for final arguments.

(3.) Learned counsel for the appellant would submit that the learned Court below misconstrued the provisions of Order 22 Rule 4 of CPC and Order 22 Rule 9 of CPC. He would further submit that vide order dtd. 15/5/2017 the learned Appellate Court had observed that the plaintiff has only the option to move an application under Order 22 Rule 9(2) of CPC for setting aside the abatement and application moved under Order 22 Rule 4 of CPC and an application under Sec. 5 of Limitation Act were rejected. He would also submit that when the application under Order 22 Rule 9(2) of CPC was moved along with an application for condonation of delay, the same was rejected contrary to the provisions of Order 22 Rule 9 of CPC. He would further contend that according to provisions of Order 22 Rule 9(3) of CPC, the provisions of Sec. 5 of the Limitation Act shall apply to the application under Order 22 Rule 9(2) of CPC. In support of his contention, he has placed reliance on the judgment passed by the High Court of Madhya Pradesh in the matter of Pradeep Jain and Others vs. Dileep Kumar and Others, reported in 2010 (2) MPHT 175, where it is held that after the rejection of the application moved Order 22 Rule 3 of CPC a separate application under Order 22 Rule 9 of CPC would be maintainable. Reliance has also been placed on the judgment of the Hon'ble Supreme Court rendered in the matter of Banwari Lal (dead) by Legal Representatives and Another vs. Balbir Singh reported in (2016) 1 SCC 607. Thus, he would pray to set aside the order passed by the learned Appellate Court.