HAFASJI IBRAHIM Vs. MANGALGIRJI MATHURAGIRJI

JUDGEMENT

(1.) ON June 10, 1942, a decree was passed in favour of the opponent against the petitioners by the Court of the Extra Avalkarkun at Godhra under Section 19 of the Mamlatdars' Courts Act ordering the petitioners to hand over possession of the suit lands to the opponent. ON June 29, 1942, the petitioners applied to the Collector of Broach and Panchmahals, Godhra, in revision under Section 23 of the Mamlatdars' Courts Act. ON October 7, 1942, the original defendant died, and on January 5, 1943, the present petitioners applied to bring themselves on record as the heirs of the original defendant. ON November 26, 1943, the Collector issued notice to the parties for the hearing of the revisional application. ON December 15, 1943, the matter came before the Assistant Collector and he took the view that the revisional application had abated inasmuch as the petitioners had not applied to bring themselves on record within one month of the death of the original defendant, and on that ground he held that the application was barred and rejected it. It is from this order of the learned Assistant Collector that this revisional application has been preferred.

(2.) NOW Section 18, Sub-clause (3), of the Mamlatdars' Courts Act, provides that in case of the death of any party, while the suit is pending before him, if application is made within one month of such death, the Mamlatdar shall determine summarily who is the legal representative of the deceased party and shall enter on the record the name of such representative; and if no such application is made, the suit shall abate. Section 23, Sub-clause (I), provides that there shall be no appeal from any order passed by a Mamlatdar under the Mamlatdars' Courts Act; but Sub-clause (2) of that section gives revisional powers to the Collector. There is no provision in the Act for bringing on record the heirs of the applicant in a revisional application in the event of the applicant dying nor is there any provision for the abatement of the revisional application on the death of the applicant. In Ganpatram Jebhai v. Ranchhod Haribhai (1892) I. L. R. 17 Bom. 645 Mr. Justice Fulton and Mr. Justice Telang held that under the provisions of the then Mamlatdars' Courts Act (III of 1876), if a party to a suit pending before the Mamlatdar's Court died the suit abated and the heirs of the deceased party could not intervene to proceed with the suit; and Mr. Justice Fulton took the view that as the object of the Act was to provide speedy and temporary relief it was thought inexpedient to make any provision for the continuance of a suit on the death of one of the parties. After this decision was given, the Mamlatdars' Courts Act has been amended; and as I have just pointed out, Sub-clause (3) of Section 18 now provides for the continuance of the suit on the death of a party to the suit pending before the Mamlatdar's Court.

(3.) THE learned Assistant Collector took the view-and rightly-that there was no specific provision under the Mamlatdars' Courts Act with regard to the abatement of pending revisional applications before the Collector. But he proceeded on a rather curious reasoning that because the period of one month was given in the case of a party to the suit dying for the heirs to be brought on record, therefore a similar time-limit must be imposed in the case of a revisional application. You cannot surely bar litigants' applications or suits by analogy. THE learned Assistant Collector then went on to say that as the application in this case was made nearly three months after the death of the original defendant, the application was time-barred and he would not hear the application on its merits and rejected the application. Now, in my opinion, the learned Assistant Collector was definitely wrong in coming to the conclusion that the limitation for the revisional application before him was one month, and he acted with material irregularity in refusing to exercise his jurisdiction to hear the revisional application pending before him on the ground that the application was barred by limitation. It was open to him to take the view that under all the circumstances of the case he would not exercise his inherent power under Section 151 of the Civil Procedure Code to bring the heirs of the applicant on record and that he would not proceed with the application, the applicant being dead. But that is not what he has done. He has refused to hear the application merely because, according to him, it is barred by limitation, which in my opinion clearly is not.