- Bookmark
- Share
- CaseIQ
Gadachandi Thakurani And Others v. Udi Barik And Others
Factual and Procedural Background
This Civil Revision challenged an order rejecting the plaintiffs' applications for substitution of the legal representative of deceased defendant No. 1 and for setting aside abatement of the suit in Title Suit No. 317/78 before the learned Munsif of Puri. Defendant No. 1 died on 1-9-1980; the advocate for defendant No. 1 filed a memo intimating the death on 3-12-1980. The suit was posted to 30-1-1981. On 30-1-1981 the plaintiffs filed (a) an application for substitution and (b) a separate application supported by affidavit seeking to set aside the abatement. The plaintiffs' first application stated they learned of the death on 1-9-1980; by a subsequent affidavit dated 3-2-1981 they explained that the correct date of their knowledge was 3-12-1980 (when the memo was filed) and that the earlier date was a mistake. The learned Munsif rejected the applications primarily on the ground that plaintiffs allegedly knew of the death on 1-9-1980, had not applied for substitution before 30-11-1980, and had not filed an application under Section 5 of the Indian Limitation Act to condone delay.
Legal Issues Presented
- Whether the learned Munsif erred in refusing to condone the delay and in rejecting the plaintiffs' applications for substitution and for setting aside abatement.
- Whether the plaintiffs' ignorance of the death (as first intimated by the advocate on 3-12-1980) must be taken into account under sub‑rule (5) of Rule 4 of Order 22 C.P.C. when considering condonation of delay.
- Whether the absence of a formal application under Section 5 of the Indian Limitation Act precluded consideration of condonation when the plaintiffs' applications themselves stated sufficient cause.
Arguments of the Parties
Plaintiffs' Arguments
- The date of their knowledge of the defendant's death was mistyped as 1-9-1980 in their application of 30-1-1981; the correct date was 3-12-1980 when the advocate filed a memo informing the Court.
- They only learned of the identity of the legal representatives after making enquiries that concluded on 29-1-1981, explaining the short delay in filing (applications filed on 30-1-1981).
- Although no formal application under Section 5 Limitation Act was filed, their application for setting aside abatement stated sufficient cause for condonation and the relevant materials were on the record for consideration.
Opposite Parties' Arguments
- The opinion records no appearance for the opposite parties and does not set out any arguments on their behalf.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court examined the documentary record and timeline: defendant No. 1 died on 1-9-1980; the advocate filed a memo intimating death on 3-12-1980; limitation for substitution expired 30-11-1980; the last date for setting aside abatement was 29-1-1981; the plaintiffs' applications were filed on 30-1-1981 (a delay of one day for setting aside abatement).
The court held that sub‑rule (5) of Rule 4 of Order 22 C.P.C. requires that ignorance about the death be taken into account in condoning delay. On a careful reading of the plaintiffs' applications and affidavit, the court found that the plaintiffs first learned of the death from the memo filed on 3-12-1980 and thereafter made enquiries to ascertain legal representatives. The learned Munsif erred in treating 1-9-1980 as the date of plaintiffs' knowledge and in disregarding their ignorance when considering condonation.
The court further reasoned that, despite absence of a formal Section 5 application, the plaintiffs' application for setting aside abatement expressly stated sufficient cause and relevant materials were on record; therefore the learned Munsif should not have refused to consider condonation merely for want of a formal application.
The court also observed that no notice had been given to the proposed legal representatives, who had acquired a valuable right upon abatement; accordingly, they are entitled to notice before the learned Munsif determines the condonation question.
Holding and Implications
Revision allowed; the impugned order is set aside.
Consequences and directions:
- The matter is remitted to the learned Munsif to decide whether the materials justify condonation of delay in applying for substitution and for setting aside abatement, after (a) taking into account the plaintiffs' ignorance of the death (as arising from the 3-12-1980 memo) and (b) giving notice of the applications dated 30-1-1981 to the proposed legal representatives.
- No order as to costs was made because there was no appearance for the opposite parties.
1. This Civil Revision is directed against an order rejecting the plaintiffs' prayer for substitution in place of a deceased defendant and for setting aside abatement of the suit.
2. In Title Suit No. 317/78 on the file of the learned Munsif of Puri, the Advocate for defendant No. 1 filed a memo on 3-12-1980 intimating the Court that his client had died on 1-9-1980. The case was posted to 30-1-1981 for hearing on the memo. On 30-1-1981 the plaintiffs filed an application for substitution of the legal representative of the deceased defendant No. 1. By a separate application supported by affidavit, they also prayed for setting aside abatement of the suit. It was alleged in the application for setting aside abatement that the plaintiffs came to know about the death of defendant No. 1 on 1-9-1980. By a subsequent affidavit dated 3-2-1981, the plaintiffs stated that they came to know about the death of defendant No. 1 on 3-12-1980 when a memo to that effect was filed by the Advocate for defendant No. 1, but by mistake the date of their knowledge about the death was mentioned as 1-9-1980 in their earlier application dated 30-1-1981. The learned Munsif rejected the prayers for substitution and setting aside abatement mainly on the ground that the plaintiffs had come to know about the death on 1-9-1980 as mentioned in their application dated 30-1-1981 and in spite of such knowledge they did not apply for substitution before 30-11-1980 and that there was no application under Section 5 of the Indian Limitation Act for condoning the delay.
3. It is urged in this civil revision that in the plaintiffs' application dated 30-1-1981 the date of knowledge about the death of defendant No. 1 was wrongly typed as 1-9-1980 instead of 3-12-1980 and that this fact having been explained by the subsequent affidavit dated 3-2-1981, the learned Munsif acted with material irregularity in refusing to condone the delay.
4. As mentioned earlier, defendant No. 1 died on 1-9-1980 and intimation about the death was given by his Advocate on 3-12-1980. The limitation for filing the application for substitution expired on 30-11-1980 and the last date for filing the application for setting aside abatement was 29-1-1981. The applications for substitution and for setting aside abatement were filed on 30-1-1981. Thus there was delay of only one day. According to sub-rule (5) of Rule 4 of Order 22 C.P.C ignorance about the death should be taken into consideration for condonation of delay in applying for setting aside abatement. On a careful reading of the two applications filed by the plaintiffs on 30-1-1981, it appears that the plaintiffs came to know about the death of defendant No. 1 on 3-12-1980 when the advocate for the defendant No. 1 filed a memo, intimating about the death. It was clearly stated in the petition that the plaintiffs came to know about the death from the memo, filed by the advocate for defendant No. 1 and thereafter they made enquiries to ascertain the names and addresses of the legal representatives. The memo, was admittedly filed on 3-12-1980. The position was clarified in the plaintiffs' affidavit dated 3-1-1981. The learned Munsif went wrong in holding that the date of the plaintiffs' knowledge about the death was 1-9-1980. The ignorance of the plaintiffs about the, death of defendant No. 1 was not taken into consideration for condonation of delay.
5. Although no formal application under Section 5 of the Indian Limitation Act was filed, yet the plaintiffs in their application for setting aside abatement stated that they had sufficient cause for condonation of delay. It was stated in the application that after the memo was filed they made enquiry and came to know only on 29-1-1981 that the defendant No. 1 was dead and that he had left behind him the persons named in the application as his legal representatives., They stated that they were unable to collect the information about the legal representatives before 29-1-1981. Since the relevant materials are on record, the learned Munsif should not have refused to consider the question of condonation of delay merely on the around of absence of a formal application.
6. No notice of the applications filed by the plaintiffs on 30-1-1981 was given to the proposed legal representatives. A valuable right has accrued to the legal representatives of the deceased after the suit abated. They are therefore, entitled to notice. The case will now go back to the learned Munsif for deciding as to whether the materials on record justify condonation of delay in making the application for substitution of heirs and for setting aside abatement.
7. In the result, I allow the civil revision and set aside the impugned order. The learned Munsif is directed to consider the question of condonation of delay after taking into consideration the ignorance of the plaintiffs about the death of defendant No. 1 and after giving notice of the applications dated 30-1-1981 to the proposed legal representatives. As there is no appearance on behalf of the opposite parties, I make no order as to costs.
Revision allowed.
Alert