KESHAV N BHAGAT Vs. DAMODAR KASHINATH NAIL

JUDGEMENT

(1.) THE petitioners herein are heirs of original mundkar Keshav N. Bhagat. THE original bhatkar was one Jairam Neugi who sold part of the property to deceased respondent No.1 Damodar Kashinath Naik. THE heirs of Damodar are brought on record.

(2.) JAIRAM Neugi expired on 7-12-1986. Application came to be filed on behalf of the said Applicant Keshav N. Bhagat on 25-6-1987 for bringing on record the heirs or legal representatives of deceased JAIRAM. However, the said Application came to be rejected by Mamlatdar of Tiswadi by taking the view that Rule 14 (13) of The Goa, Daman and Diu Mundkars (Protection from Eviction) Rules, 1977 provided that such an application should be made within 30 days from the death of the bhatkar. Such an application was not made. There is no provision for condonation of delay. The provisions of Civil Procedure Code are not attracted and, hence, the case abated. Accordingly, he passed the Order of abatement on 9-11-1987. The same is under challenge in this Petition.

(3.) WE also would like to point out that Order XXII, Rule 4 (1) calls for procedure in case of death of one of several defendants or of sole defendant. Order XXII, Rule 4 (3) provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. Sub-Rule (5) is as follows : - "where - (a)the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b)the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved. " Similarly, Order, XXII, Rule 9 provides for effect of abatement or dismissal. Sub-Rule (2) thereof provides that any plaintiff or the person claiming to be the legal representative of a deceased plaintiff etc. , may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. Sub-Rule (3) thereof makes a provision of Section 5 of the Limitation Act being made applicable to the applications which are filed under Sub-Rule (2 ). Therefore, there is provision made in Civil Procedure Code for setting aside the abatement and certain provisions of the Limitation Act are made applicable, particularly Section 5.WE find there is absolutely no reason as to why this provision should not be read even in such cases where applications are filed before the Mamlatdar under the Act. In our opinion, therefore, the provisions of Section 5 of the Limitation Act, 1963 shall be applicable in such cases.