Anasawa and Others vs Ramappa and Others

K.N. Phaneendra, J.—The petitioners have called in question the order passed by the Addl. Senior Civil Judge, Haveri in Misc. No. 17/2008 on 08.06.2015 dismissing the petition and refusing to restore the suit in OS No. 12/2003 pending on the file of Addl. Senior Civil Judge, Haveri, which was dismissed for non-prosecution on 23.11.2006.

It is the case of the petitioners that the husband of the 1st petitioner Peerapa has filed a suit against the respondents in OS No. 12/2003 on the file of Addl. Senior Civil Judge, Haveri, for specific performance of the agreement alleged to have been executed by the respondents on 04.09.2000 accepting to sell the suit property for a sum of Rs. 1,00,000/- and receiving advance sale consideration of Rs. 74,000/- as on the date of the agreement. But during the pendency of the said suit the plaintiff died. It is also the case of the petitioners that the said case was posted for the evidence of the plaintiff on 23.11.2006, but the Court has recorded that the plaintiff has not proceeded with the case and therefore, dismissed the same for non-prosecution(default).

The contention of the petitioners is that they were not having knowledge of the dismissal of the said suit on the particular date. Therefore, they did not take any steps in time. Only they came to know about the dismissal of the said suit after long lapse of time in the year 2008 and immediately without any delay they filed a miscellaneous petition for restoration of the said suit. The contention of the petitioners is that the petitioner No. 1 is illiterate widow and her daughters are married and residing with their husband and male children are studying out of the village. Therefore due to these extraneous circumstances in the family they could not file the petition in time. The said petition was contested by the respondents herein denying all the allegations made in the petition and specifically stating that they are actually in possession and enjoyment of the suit property and their father never executed any agreement and prayed for dismissal of the petition.

The petitioner No. 1 was examined as PW1 and got marked the order-sheet of the trial Court as Ex. P1. One more witness Sri Devappa was examined as PW2 in support of the case of the petitioners. Respondent No. 1 was examined as RW1 and no documents were marked on their behalf. The trial Court after analyzing oral and documentary evidence available on record came to the conclusion that after the death of the plaintiff in OS No. 12/2003 though the dismissal of the suit was well within the knowledge of the petitioners, they have not approached the Court in time. Moreover the said suit was dismissed only after the death of the deceased and the said abatement has not been set aside. Hence, unless the abatement of the suit is set aside there is no question of restoration of the suit. On these two important grounds, the petition came to be dismissed by the trial Court.

I have heard the learned counsel for the petitioners also the learned counsel for the respondents and carefully perused the records.

Of course, there is delay in filing miscellaneous petition No. 17/2008 and the explanation has been offered by the petitioners stating in the petition as well as in their statement in the examination-in-chief by PW1 that she was illiterate widow and she does not know the legal requirements and also intricacies of procedures in order to bring the legal representatives on record after the death of the plaintiff. She only came to know about the dismissal of the suit on 20.09.2008 and there was no information regarding the said suit being dismissed earlier to that date. When the villagers have told that the respondents are making arrangements for disposal of the suit schedule property, then only she came to know about the dismissal of the suit on enquiry and therefore she filed an application for restoration.

The learned counsel for the respondents strenuously argued that though it is stated in the examination-in-chief by way of affidavit in support of the petition averments but during the course of cross-examination, the 1st petitioner has admitted that even much earlier to the said alleged date of her knowledge she had the knowledge of the dismissal of the suit and as well as pendency of the suit. In the cross-examination of PW1 she has admitted that she was having knowledge of the pendency of the suit and she came to know about it after two days of the death of her husband, but she did not go to the Advocate because she does not know reading and writing and the 5th petitioner was minor at the time of death of her husband. Further, she was knowing the hearing dates of the said case and it is suggested that the plaintiff deliberately not appeared before the Court and the said suit was dismissed for the deliberate inaction on the part of the plaintiff only.

It is argued that in view of the particular admission that she came to know about the pendency of the suit after two days of the death of her husband, the trial Court has rightly dismissed the said application. In my opinion, the cross-examination portion has to be read in toto and not in an isolated manner. The said admission has to be tested by way of other surrounding circumstances of the case that whether it is an admission amounts to unequivocal voluntary admission knowing the consequences of such admission. The cross-examination of the RW1 also shows that, he deposed that he does not know whether pendency of the suit was well within the knowledge of the petitioners. But he restates that he has been in possession of the property and no agreement was executed by his father in favour of the plaintiff. He further says that the suit was dismissed only on the ground that the plaintiff has not appeared before the Court. Even though he pleads his ignorance, looking to the above said evidence of the parties it is clear that they are from rural rustic areas, unmindful of the consequences they may give some evidence before the Court. Therefore, the Court has to visualise and consider all the surrounding circumstances available in the case, to consider the particular portion of the evidence as unequivocal admission or as an isolated statement. If it is an isolated admission, then the surrounding circumstances is to be given importance for the purpose to advance the justice and mitigate injustice between the parties. In the petition averments it is categorically stated about the delay. Even in the examination-in-chief the entire petition averments are supported and there is no admission in such a manner either in the petition or in the examination-in-chief that she was knowing the dismissal of the suit. She deposed that she only came to know about the dismissal of the suit when the respondents have made attempts to alienate the property. Then only she came to know about such aspects from the brother of her husband. Therefore, accepting the particular sentence that she came to know about the pendency after two days of the death of her husband is not countenanced by any other material on record. On the other hand, the statements made by PW2 is also supported by the petition averments and examination-in-chief of PW1. Therefore the sole ground which was invoked by the trial Court that, she admitted about the knowledge of pendency of the suit cannot be in any manner taken as an unequivocal voluntary admission on the part of the petitioners. If the Court is of the opinion that the admission cannot be treated as unequivocal admission, such portion cannot be relied upon. So far as other aspects are concerned, the trial Court has relied upon two decisions to hold that the suit has been statutorily abated under Order 22 Rule 1, 4 and 4A of CPC. The suit abated after the death of the particular party to the suit.

It is to be born in mind that, Order 22 Rule 10A of CPC cast a burden on the counsels to inform the Court about the death of the party so as to inform other party to take appropriate action to bring the legal representatives on record. This provision is incorporated in the statutory book by way of amendment in the year 1977 which says that, whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.

In this particular case neither the petitioners counsel nor the defendants'' counsel before the trial Court have brought to the notice of the Court about the death of the plaintiff. The said suit has not been closed due to abatement but presuming that the plaintiff was not interested to proceed with the case when posted for evidence, the suit was dismissed for non-prosecution(default). Therefore, the entire proceedings show that everybody was ignorant of the death of the deceased. If at all the petitioners were knowing the existence of the suit, there is no reason for them to not to intimate their counsel about the death of the deceased and to take appropriate steps before the trial Court as they are not going to be benefited on the other hand they are the losers. The plaint averments as I have already referred disclose that under the agreement of sale they have paid an amount of Rs. 74,000/-. There is no logic behind the act of the petitioners to avoid the process to lose Rs. 74,000/-, and therefore the acts of the petitioners stand to the logic and to the fact that they were not knowing the existence of the suit and that deliberately they have not filed an application for restoration of the suit in time. When it was not brought to the notice of the Court, though there was statutory abatement, but the Court has not recorded the same but dismissed the suit for non-prosecution. In this background, the concerned Advocate might have advised the petitioners to file miscellaneous petition for restoration of the suit and thereafter they can take steps for the purpose of bringing themselves as legal representatives on record. Therefore, the ignorance of the legal aspects by the petitioners in my opinion also should have been taken into consideration by the trial Court while considering the above aspects of the matter. The Courts should always bear in mind that, the substantial rights of the parties cannot be snapped on the technicalities and no party should be allowed to have a wrongful gain. Therefore, in my opinion the trial Court has committed an error in not allowing the application filed under Order 9 Rule 4 of CPC by condoning the delay in filing the petition. Once, suit is restored, the legal representatives can bring themselves on record. Hence, I am of the opinion by looking into the facts and circumstances of this particular case the trial Court ought to have allowed the petition filed under Order-9 Rule 4 Rule read with Section 151 of CPC by the petitioners. Hence, I proceed to pass the following:

The petition is hereby allowed.

Consequently, the order passed by the Addl. Civil Judge Haveri in Misc. Petition No. 17/2008 dated 08.06.2015 is hereby set aside.

The application filed by the petitioners under Order 9 Rule 4 read with 151 of CPC is hereby allowed. The original suit in OS No. 12/2003 is restored on to the file of the Addl. Senior Civil Judge Haveri and the petitioners have to make necessary application for setting aside the abatement and to bring themselves on record as legal representatives of the deceased plaintiff. Thereafter the Court has to issue notice to the defendants and after getting their presence, dispose of the applications in accordance with law. If the application for bringing the legal representatives on record is allowed then only the Court can proceed with the case on merits.