Tuesday, 24 December 2019

Whether appeal is maintainable if suit is dismissed against one defendant as abated?

 Order-XLIII, Rule 1(k) of the Code provides an appeal against an order refusing to set aside the abatement or dismissal of a suit. The term "dismissal of a suit" has to be read along with the other references of proceedings in Rule 1(k), and it is clear that appeal under this provision lies against dismissal of a suit under Order-XXII, Rule 9 of the Code. By rejecting the application [Exh. No. 32], the trial Court, in effect, dismissed the suit against defendant no. 1 and this aspect is rightly considered by the learned Principal District Judge in paragraph 11 of the impugned judgment. Learned Principal District Judge has recorded that the effect of abatement of Civil Suit against defendant no. 1 is that the entire suit would go, as defendant no. 1 was a necessary party to the Civil Suit. It is a settled principle that while interpreting the enabling provisions of the statute which confer substantive rights on the parties, the Court should not give restrictive meaning to the provisions and a wide meaning should be given to it. While considering the legality of the impugned order, the superior Court should not read the impugned order in its literal sense, but, the effect of that order should also be considered. Keeping these principles in mind, it has to be held that the appeal filed by the respondent no. 1 against the order passed by the trial Court on the application [Exh. No. 32] was maintainable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 685 of 2017

Decided On: 07.06.2019

 Bharat Gangabisan Kalantri  Vs.  Sanjay Chandrakant 

Hon'ble Judges/Coram:
Z.A. Haq, J.

Citation: 2019(6) MHLJ 924


1. Heard.

2. The respondent no. 1 filed Special Civil Suit No. 704 of 2009 praying for a decree for specific performance of contract. Shri Daulat Nago Shedame [defendant no. 1], in that Civil Suit, died on 31st May, 2012. The plaintiff had filed an application [Exh. No. 33] under Order-XXII, Rule 4 of Civil Procedure Code, praying that he be permitted to bring on record the legal representatives of defendant no. 1 - Daulat. Along with this application, the plaintiff had filed an application [Exh. No. 32] praying that delay in filing the application [Exh. No. 33] be condoned and abatement be set aside. Learned trial Judge rejected the application [Exh. No. 32] by order dated 1st December, 2015. The plaintiff challenged this order before District Court by filing an appeal under Order-XLIII, Rule 1(k) of the Civil Procedure Code. This appeal is allowed by the impugned judgment.

3. According to the petitioner [defendant no. 3], the appeal filed by the respondent no. 1 - plaintiff was not maintainable. Learned Adv. for the petitioner argued that the order passed by the trial Court on application [Exh. No. 32], against which appeal was filed, cannot be considered as an order under Order-XXII, Rule 9, Civil Procedure Code, and consequently, the appeal under Order-XLIII, Rule 1(k) of the Code against that order was not maintainable. The submission cannot be accepted. Order-XLIII, Rule 1(k) and Order-XXII, Rule 9, Civil Procedure Code, read as follows:-

"ORDER XXII

Death, Marriage and Insolvency of Parties

9. Effect of abatement or dismissal.-

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff 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.

(3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877) shall apply to applications under sub-rule (2).

[Explanation.-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]"

"ORDER XLIII
Appeals From Orders

1. Appeals from Orders.-An appeal shall lie from the following orders under the provisions of section 104, namely:-

(a) …..

(b) …..

(c) …..

(d) …..

(e) …..

(f) .....

(g) …..

(h) …..

(I) .....

(ja) …..

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;"

4. Order-XLIII, Rule 1(k) of the Code provides an appeal against an order refusing to set aside the abatement or dismissal of a suit. The term "dismissal of a suit" has to be read along with the other references of proceedings in Rule 1(k), and it is clear that appeal under this provision lies against dismissal of a suit under Order-XXII, Rule 9 of the Code. By rejecting the application [Exh. No. 32], the trial Court, in effect, dismissed the suit against defendant no. 1 and this aspect is rightly considered by the learned Principal District Judge in paragraph 11 of the impugned judgment. Learned Principal District Judge has recorded that the effect of abatement of Civil Suit against defendant no. 1 is that the entire suit would go, as defendant no. 1 was a necessary party to the Civil Suit. It is a settled principle that while interpreting the enabling provisions of the statute which confer substantive rights on the parties, the Court should not give restrictive meaning to the provisions and a wide meaning should be given to it. While considering the legality of the impugned order, the superior Court should not read the impugned order in its literal sense, but, the effect of that order should also be considered. Keeping these principles in mind, it has to be held that the appeal filed by the respondent no. 1 against the order passed by the trial Court on the application [Exh. No. 32] was maintainable.

5. On merits, the petitioner contends that the respondent no. 1 had pleaded a false case to explain the inordinate delay of about two years in filing the application [Exh. No. 32]. It is submitted that in Special Civil Suit No. 463 of 2006, Daulat Nago Shedame was defendant no. 1 and present respondent no. 1 was defendant no. 5 and legal representatives of Daulat Nago Shedame were brought on record in that Civil Suit on 20th April 2013, and therefore, the present respondent no. 1 had knowledge on that day that Daulat Nago Shedame had expired and his legal representatives were required to be brought on record in the civil suit filed by the respondent no. 1 also. But, still the present respondent no. 1 had not taken any steps in the matter and filed the application [Exh. No. 32] on 11th November, 2014. Relying on the judgment in the case of Pundlik jalam Patil (dead) by LRS. Vs. Executive Engineer, Jalgaon Medium Project & another [MANU/SC/4694/2008 : (2008) 17 SCC 448], it is argued that a party, which makes an incorrect statement in support of prayer for condonation of delay, is not entitled for the discretion and the application filed by such party praying for condonation of delay is liable to be rejected.

6. Per contra, learned Adv., for the respondent no. 1 submitted that the respondent no. 1 has justified the delay in filing the application [Exh. No. 32] and the facts are properly appreciated by the learned District Judge and delay in filing the application [Exh. No. 32] is rightly condoned. Relying on the judgment given by the Hon'ble Supreme Court in Appeal No. 2046 of 2019 [Laxman Prajapati Waghaye Vs. Rani Laxmibai Karmachari Sahakari Pat Sanstha Maryadit, Lakhani & others]; decided on 25th February 2019, it is submitted that the discretion exercised by the learned District Judge judiciously should not be interfered with by this Court while exercising jurisdiction under Article 227 of the Constitution of India.

7. Considering the facts of the case and relying on the judgment given in the case of Laxman Prajapati Waghaye [supra], I am not inclined to interfere with the impugned judgment. Hence, the Writ Petition is dismissed. In the circumstances, the parties to bear their own costs.

8. At this stage, learned Adv., for the respondent no. 1 has requested that the trial Court be directed to expedite the civil suit. As the Civil Suit is of 2009, trial Court is directed to dispose it till March, 2020.


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