Sampatrao vs Shamrao

S.B. Shukre, J.—Heard. Admit.

Heard finally by consent.

This appeal is directed against the order passed on 23/4/2013 rejecting the application filed under Order XXXIX Rule 11 sub-rule (2) of the Civil Procedure Code by the appellants to set aside the order dated 19/12/2002, by which the appeal filed by the appellants came to be dismissed for non compliance of the order of the Court passed on 11/01/2002.

The appellants had preferred Regular Civil Appeal against the decree granting damages to the respondents. During the pendency of the appeal before the First Appellate Court, respondent Shamrao died. His legal representatives filed an application on 11/01/2002 (Exh.12) to bring on record their names as legal representatives of deceased Shamrao. The application was allowed on the same day and the appellants were directed to bring the lrs. on record latest by 15/02/2002. For some reason or the other, the lrs. were not brought on record within the time stipulated. When the matter was listed for hearing on 19/12/2002, the then learned District Judge dismissed the appeal by invoking the provision of Order XXXIX Rule 11(1) C.P.C. In order to seek setting aside of this order, the appellants moved an application by invoking the provision of sub-rule (2) of Rule 11 of Order XXXIX C.P.C.

The application was resisted by the respondents contending that no sufficient cause was shown by the appellants in setting aside the order passed on 19/12/2002. The learned District Judge found that the application filed by invoking the provisions of Sub-rule (2) of Rule 11 of Order XXXIX C.P.C. was not maintainable but, at the same time, treated that application as having been filed under the provisions of Rules 4 and 9 of Order XXII C.P.C. Thereafter, the learned District Judge proceeded to consider the application on merits and found that no sufficient cause was shown for setting aside the abatement of the appeal or for condoning the delay which had occurred in getting the abatement of the appeal set aside. Accordingly, by the order passed on 23/4/2013, the learned District Judge rejected the application.

I have heard learned Counsel for the appellants and learned Counsel for the respondents. I have perused the impugned order and paper book of this appeal.

According to the learned Counsel for the appellants, the application as filed under Order XXXIX Rule 11(2) C.P.C. was maintainable for the simple reason that the appellants were already directed to bring on record the legal representatives of deceased Shamrao upon the application moved in that regard by the legal representatives of deceased Shamrao themselves and that the appeal was dismissed on account of the fact that the appellants did not comply with the direction of the Court within the time fixed by it. He made another submission in the alternative that there was sufficient cause shown by the appellants in seeking indulgence of the Court in this regard and, therefore, on that ground also, the application could not have been rejected.

According to the learned Counsel for the respondents, there was neither any arbitrariness nor any illegality in treating the application filed under Order XXXIX Rule 11(2) as the application filed under Order XXII Rules 4 and 9 of C.P.C. He submits that the appellants were very well aware of the order passed on 11/01/2002 and upon a lame excuse that the record of the appeal had been sent to Paper Book Section, the appellants could not have been pardoned when it came to consideration of condonation of delay occurred in this case and, therefore, the application has been rightly rejected by the first appellate Court.

Upon perusal of the reasoning adopted by the learned District Judge, I find that the learned District Judge has committed a serious illegality in treating the application invoking the provisions of Sub-rule (2) Rule 11 of Order XXXIX as the one filed under Rules 4 and 9 of Order XXII C.P.C.

In this case, the application for bringing of the lrs. on record was filed by the lrs. themselves and there was no question of determination of any relationship of those applicants with the deceased Shamrao, the relationship being an admitted position. In this regard, though learned Counsel for the respondents has brought to the notice of this Court a Judgment rendered by learned Single Judge of this Court in the case of Raghunath Parbati Chavan Vs. Tarabai Shakar Chavan (since deceased) and Others, , wherein the learned Single Judge has observed that the relationship between the deceased and the persons sought to be impleaded as lrs., must be ascertained by the Court before granting application filed for bringing on record the legal representatives, the relationship being an admitted position, separate determination regarding relationship was not necessary and the learned District Judge should have proceeded to straightway examining sufficiency of the cause or otherwise in complying with the direction of the Court to bring the lrs. in the time fixed by it. But, instead of doing so, the learned District Judge made a different inquiry, not permissible in law, as if he was sitting in appeal over the order dated 19/12/2002 made by his learned predecessor. The learned District Judge forgot that the application filed by the lrs. to bring their names on record as lrs. of deceased Shamrao on 11/01/2002 was under Rule 4(1) of Order XXII and since it was within limitation, it was allowed on 15/02/2002. Once an application filed under sub-rule (1) is within limitation, by virtue of provision of sub-rule (3), the appeal does not abate against the respondent. So, in this case the appeal had not been abated against deceased respondent and what had happened was only failure to bring the lrs. by 15/02/2002 in compliance with order dated 11/02/2002. Since, the non-compliance with the order dated 11/1/2002 continued, provisions of Rule 11(1), Order XXXIX were invoked and the appeal came to be dismissed by the order dated 19/12/2002. As the dismissal of appeal was by invocation of power under Rule 11(1) Order XXXIX, any effort to get it''s effect nullified was bound to be under a provision remedial to sub-rule (1), Rule 11, Order XXXIX and it was so taken rightly in this case. In this backdrop, the learned District Judge had no justification to find that provisions of Rule 11, Order XXXIX were not applicable when the party died during the pendency of the proceeding.

Even otherwise, there was no reason for the learned District Judge to go into the question as to under which provision of Civil Procedure Code the order of dismissal of appeal should have been passed and under which provision, it''s setting aside should have been sought. The reason being that the appeal had not been abated by virtue of provision of sub-rule (3), Rule 11, Order XXII, C.P.C. as seen earlier, and the only issue left to be decided was of sufficiency of cause in seeking setting aside of the order of dismissal of appeal. It is clear that learned District Judge has committed a serious illegality and the finding recorded by him in this behalf deserves to be quashed and set aside and is quashed and set aside.

Now, the question would be of showing of sufficient cause by the appellants. Whether the appellant is invoking power of the Court under Sub-rule (2) Rule 11 of Order XXXIX or Rule 9 of Order XXII C.P.C., the fact remains that the appellant is obliged to satisfy the Court that he has sufficient cause for seeking indulgence of the Court with regard to setting aside of the order of the Court dismissing the appeal or abatement of the appeal.

If one peruses the impugned order as well as paper book of this appeal, one would notice that it is not in dispute that the order that was passed on 11/1/2002 was in the absence of the appellants. Of course, learned Counsel for the respondents submits, one junior to the Advocate appearing on behalf of the appellants was present at that time before the Court. But, the statement appears to be not supported by record as there is nothing on record to show that anybody was present on behalf of the appellants when the order in the matter came to be passed on 11/1/2002. Then, it is also not in dispute that the matter had been sent to Paper Book Section for preparing Paper Book. It was obvious that there was no way the appellants or their learned Counsel could have acquired knowledge about the direction given by the Court to them for bringing on record the lrs. of deceased Shamrao latest by 15/2/2002. Therefore, no blame could have been placed upon the appellants for inaction by them.

The record further shows that there is nothing available on record enabling the Court to find that appellants had got the knowledge about death of Shamrao through independent sources. The learned District Judge has presumed that since the appellants and the respondents were from the same village with their fields being adjacent to each other, the appellants must have acquired knowledge about the death of Shamrao. I do not understand as to how such a presumption could have been made by the learned District Judge especially when no data or statistics were available on record to find that the place where the rival parties were residing was so small and was governed by so informal relations as even a whisper in one house would be heard loudly and clearly in another house. Then, the theory of adjacent fields would work only when the relations are cordial and not when the parties are at logger-heads as is the case herein. The presumption drawn in this regard by the learned District Judge, therefore, defies logic and law. If this is so, the explanation given by the appellants about their delayed learning about the death of Shamrao has to be accepted. Therefore, I find that the order impugned herein cannot be sustained in law, it being in arbitrary exercise of the discretion vested in the Court below.

Before parting with the order, it is necessary to deal with what learned counsel for the respondents further submits. He argues that unless the legal representatives of deceased Shamrao are brought on record, trial of the appeal cannot be proceeded. In support, learned Counsel places reliance upon the case of Jaladi Suguna (deceased) through LRs. Vs. Satya Sai Central Trust and Others, . There is no quarrel about the principles of law laid down in the said case and, therefore, a direction to the appellants would be necessary for bringing of lrs. on record within a stipulated period so that the appeal can proceed to trial.

In the result, the appeal deserves to be allowed.

I. The appeal is allowed.

II. The impugned order is quashed and set aside.

III. The application filed under Sub-rule (2) Rule 11 Order XXXIX of the Code of Civil Procedure is allowed.

IV. Regular Civil Appeal No. 156 of 1997 is restored to the original file.

V. The appellants are directed to bring on record legal heirs of deceased Shamrao within a period of one week from the date of appearance of the parties before the lower Appellate Court.

VI. Parties are directed to appear before the first Appellate Court on 01/12/2014.

VII. Parties to bear their own costs.