JAYRAJUA (DECEASED) THROUGH LR. RAMSAJIVAN Vs. DWARIKA

JUDGEMENT

(1.) THIS is a plaintiff's appeal under Order 43 Rule 1 (k) of the Code of Civil Procedure against the orders dated 19.11.98 and 17.2.99 passed by ku. Sushma Khosla, Additional District Judge, Rewa. The learned counsel for the appellant had filed an application under section 5 of the Limitation Act. It was stated that he had filed this appeal against both the orders dated 19.11.98 and 14.2.99. On 22.3.99, however, at the time of filing of appeal due to inadvertant error in his office only order dated 17.2.99 was annexed with the memo of appeal. He filed the certified copies of the orders dated 19.11.98 on 29.6.99. It was claimed that the appeal would have been within limitation if the order dated 19.11.98 was filed along with the memo of appeal on 22.3.99. The certified copy filed on 29.6.99 shows that an application for obtaining the certified copy was made on 17.12.98 and it was ready on 10.2.99. It cannot be disputed that after excluding the time for obtaining the certified copy the appeal filed on 22.3.99 against the order dated 19.11.98 would have been within time if its certified copy was filed along with the memo of appeal. I have heard the counsel for the parties on the point. In my opinion, there is sufficient cause for condonation of delay under section 5 of the Limitation Act. The appellant cannot suffer, on account of the inadvertant mistake of the counsel for the appellant. The memo of appeal filed on 22.3.99 indicates that there was intention to file appeal against both the orders dated 19.11.98 and 17.2.99. Therefore, it must have been an accidental slip or omission which must have caused the error of not filing the certified copy. For such genuine error, of the counsel for the appellant, the party cannot be punished. The interlocutory application dated 29.6.99 filed under section 5 of the Limitation Act is hereby allowed. Delay in filing the certified copy is hereby condoned.

(2.) THE learned counsel for the respondent has, however, raised a preliminary objection to the effect that when the court rejected the whole suit, as abated, by order dated 17.2.99, the question of filing an appeal under Order 43 Rule 1 (k) of the Code of Civil Procedure did not arise. The order dated 17.2.99 amounted to a decree. The learned counsel referred to the Full Bench decision of this court in the case of Mithulal Vs. Badri Prasad ( : AIR 1981 MP 1) and contended that subsequent order dated 17.2.99 holding that the cause of action did not survive at all against the remaining defendants, as distinguished from Ramavatar the deceased defendant No.2, was in fact a decree. The question whether cause of action survived on abatement of suit against the legal representatives of the defendant No.2 would be a decision on merits. It would not be a part of an order refusing to set aside abatement under Order 43 Rule 1 (k) of the Code of Civil Procedure. In reply to the arguments of the learned counsel for the respondent, it is contended by the learned counsel for the appellant that the consequential order of refusal to set aside abatement is covered by Order 43 Rule 1 (k) of the Code of Civil Procedure. It is, therefore, appealable as such. An appeal lay. The learned counsel for the appellant relied upon the decision of the Supreme Court reported in Madan Naik Vs. Hansubala Devi ( : AIR 1983 SC 676) wherein it has been held that the order of refusal to set aside abatement and further order of consequential dismissal of suit would not amount to decree. There was no question of drawing up of a decree as the suit had already abated by the death of a party. In order to appreciate the controversy on the question of tenability of an appeal, it would be necessary to state shortly the facts of the case. The defendant No.2 Ramavatar died on 10.8.96. An application for substitution of his legal representatives was filed on 20.9.98. An application for condonation of delay in filing the application for substitution was filed on 17.8.98.

(3.) THE court by impugned order dated 19.11.98 refused to set aside abatement which took place on death of Ramavatar whose legal representatives were not brought on record within ninety days of his death. The court below refused to set aside abatement and condone the delay in bringing the legal representatives of defendant No.2 Ramavatar on record. The consequence was that it held that the suit abated against the interest of Ramavatar. Accordingly, the trial court passed the order dated 14.11.98 that appeal abated against Ramavatar. The counsel for the respondents does not dispute that the order was appealable, as such, under Order 43 Rule 1 (k) of the Code of Civil Procedure. However, the court further determined, if the suit abated as a whole and passed the order dated 17.2.99. It is contended on behalf of the respondents that the order amounts to a decree, and, therefore, the appellant should have filed a first appeal against that decree dated 17.2.99 wherein the appellant could also challenge the order dated 14.11.98. This order had merged into the decree dated 17.2.99 which determined the rights of the plaintiff conclusively determining that the cause of action did not survive. If there be a single plaintiff or a defendant, whose legal representatives are not brought on record, within ninety days as per Article 120 of the Limitation Act, 1963, the suit shall abate. The remedy of the plaintiff is to file an application under Order 22 Rule 3 or Order 22 Rule 4 of the Code of Civil Procedure on the death of sole plaintiff or the defendant according to the applicability of either of the rule. If the application is within ninety days of the death, there shall be substitution. On expiry of ninety days, an application under Order 22 Rule 9 of the Code of Civil Procedure has to be filed within sixty days of the date of abatement as per Article 121 of the Limitation Act, 1963. The plaintiff may have a remedy of filing an application for condonation of delay under section 5 of the Limitation Act, 1963 and filing the application for setting aside the abatement. The Order 22 Rule 3 and 4 of the Code would apply to appeals too. However, the appellant then is required to perform the function of the plaintiff as per Order 22 Rule 11 of the Code of Civil Procedure. However, when there be death of one of the plaintiffs, out of several plaintiffs, or one of the defendants, out of several defendants, the death of the deceased does not cause the entire suit to abate ordinarily. The same principle applies to appeal. This principle is expressed by saying that the abatement of the suit or appeal is limited to the extent of share or interest of deceased in the subject matter of the suit or appeal. There is exception to this rule of partial abatement. The exception operates upon the nature of suit or appeal. If the cause of action in the suit or the subject matter of appeal is such that it is impossible to grant relief to the surviving plaintiff or the appellant, then the court has no option to hold that the suit or the appeal abates as a whole. Usually the whole claim of the plaintiff or the subject matter of appeal consequent to a decree has to be examined for this purpose. When it appears to the court that the relief claimed in the suit or in appeal cannot be granted without presence of legal representatives of the deeased person, it would be held that the suit or appeal abates as a whole. The decision of the court below that it was not possible to proceed in the suit without the presence of the legal representatives of Ramavatar is said to be the decision on the rights of the parties. The determination that the cause of action and reliefs that flow from it are single and indivisible is said to be a determination of the substantive rights of the parties conclusively and consequent dismissal of suit of the appellant, it is argued, is a decree within the meaning of section 2(2) of the Code of Civil Procedure. The' Rule 9 of Order 22 of the Code of Civil Procedure reads as under -