Appellate Division Cases
Abdul Kader Mondal and ors. ………………………………………Appellants.
Shamsur Rahman Chowdhury alias Shamsur Rahman Saha ……….Respondent.
A.T.M. Afzal,C J
Latifur Rahman J
Bimalendu Bikash Roy Choudhury J
A.M. Mahmudur Rahman J
Date of Judgment
11 March, 1999
The Code of Civil Procedure, Order 22 rule 9(2) (3) Sub rule (3), Section 5 of the Limitation Act
Chowdhury Saifuddin Ahmed vs. Shamsuddin and others, 40 DLR (HCD) 10
Azimonnessa vs. Rup Gazi and others, 39 DLR (HCD)6
The learned Judge of the High Court Division has failed to construe properly the application for setting aside the abatement which substantially met the requirements of Order 22, Rule 9 (2) (3) of the Code of Civil Procedure and was wrong in holding that but for a separate application for condonation of delay the prayer for setting aside abatement was to fail (7)
Md. Abdul Hannan, Senior Advocate, instructed by Md. Ataul Huq, Advocate-on-Record For the Appellants S.R. Pal, Senior Advocate, instructed by Shamsul Hague Siddique, Advocate-on-Record For the respondent.
1. Bimalendu Bikash Roy Choudhury, J :This appeal by way of leave, at the instance of the plaintiffs, arises out of an order setting aside abatement of a suit for declaration of title to and confirmation of possession in the land measuring an area of 12.61 acres appertaining to C.S. Khatian No.351 of mouza kamardha under police station Porsha.
2. During the pendency of the suit plaintiff Nos.9 and 19 died and the suit in respect of them abated after expiry of 90 days from the date of death. An order of abatement was also recorded by the learned Subordinate Judge, Naogaon, who was in seisin of the matter.
3. Later on the surviving plaintiffs filed an application marked as Misc. Case No.4 of 1991 under Order 22 rule 9 (2) of the Code of Civil Procedure for setting aside the abatement alleging, inter alia, that plaintiff No.9 and plaintiff No. 19 died on 15 July 1989 and 20 July 1989 respectively. But plaintiff No. 14 who was the tadbirkar in the case did not take steps for substitution of the heirs of the deceased plaintiffs in time although he had undertaken to do so. The plaintiffs had reason to believe that plaintiff No. 14 in collusion with the defendants did not take any steps for setting aside the abatement. The heirs of the deceased plaintiffs are simple persons and one of them was a minor. Plaintiff No. 14 took necessary costs from the heirs of the deceased for substituting them, but he did not do it. The said heirs, however, themselves filed an application for substitution which was rejected on 10 July 1991 on the ground of limitation. Had the prayer been allowed the interest of the plaintiffs would have been saved.
4. Defendant No.l opposed the prayer contending that plaintiff No.9 died on 10 August 1985 and plaintiff No. 19 on 5 November 1986 and that since their heirs were not substituted within time the suit had abated long before.
5. The Learned Subordinate Judge allowed the prayer for setting aside abatement on 7 April 1992, subject to payment of a cost of Tk.500/-to the defendant. 6. The contesting defendant preferred Civil Revision No.1843 of 1992. A learned Single Judge of the High Court Division, by Judgment and order dated 15 & 16 November 1995, reversed the order of the Subordinate Judge setting aside abatement. The learned Judge noticed that the Subordinate Judge did not accept the plaintiffs’ plea that plaintiff No. 14 was the sole
tadbirkar on behalf of the plaintiffs, but allowed the application for setting aside abatement on the ground that plaintiff No.l was a simple man and that non-substitution of the heirs of the deceased plaintiffs within time was without any malice. The learned Judge also noticed that no separate application for condonation of delay was filed along with the application under order 22 Rule 9 (2) of the Code of Civil Procedure nor was there such a prayer even in the application itself. The compliance with the provisions of Order 22 Rule 9 (2) (3) of the Code of Civil Procedure was strictly necessary which the plaintiffs had failed to do and so the learned Subordinate Judge could not have passed the order setting aside abatement on extraneous ground.
7. The learned Counsel for the appellants has canvassed 3 grounds before us namely, (i) that the learned Judge of the High Court Division has failed to construe properly the application for setting aside the abatement which substantially met the requirements of Order 22, Rule 9 (2) (3) of the Code of Civil Procedure and was wrong in holding that but for a separate application for condonation of delay the prayer for setting aside abatement was to fail; (ii) that the learned Judge of the High Court Division should not have interfered with the order of the Subordinate Judge passed in his discretion and that also after compensating the defendant by payment of compensation of Tk.500/- and (iii) that abatement in respect of plaintiff Nos.9 and 19 could, if at all, have the effect of partial abatement of the suit.
8. The learned Counsel for the respondent, on the other hand, contends that the application for setting aside abatement was barred by limitation as the plaintiffs did not file any application for condonation of delay. He also contends that the interests of the plaintiffs not being divisible the suit is liable to abate as a whole.
9. Order 22 of the Code of Civil Procedure requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a stipulated period. If they are not brought on record within such period, the action abates either wholly or partially depending on the facts and circumstances of each case. Sub-rule (2) of Rule 9, allows an abatement to be set aside inspite of delay in making an application in time if it can be shown that the applicant was prevented by sufficient cause from continuing the action. At the same time under sub-rule (3), section
5 of the Limitation Act has been specifically made applicable for condonation of delay. As a logical sequel an abatement can be set aside at any time even beyond the period prescribed for making an application in that behalf if sufficient cause is shown explaining the delay.
10. It has been held by almost all the superior Courts of this sub-continent that the provisions of Order 22, Rule 9 (2) (3) of the Code should be liberally construed. The reasons for such approach are not far to seek. In the first place, abatement of a suit precludes fresh suit on the same cause of action, although there is no trial on merit of the
case. An order of abatement never goes to the merit of a dispute between the parties. If abatement is set aside the merit of the dispute can be determined. If the abatement is not set aside the applicant is deprived of the opportunity of proving his claim only on account of his culpable negligence or lack of vigilance. Therefore such negligence or lack of vigilance should not be readily concluded. Ordinarily there is no reason for an applicant to make wilful default, for he does not get any benefit by coming late. Refusal to condone delay can result a meritorious matter being thrown out without any hearing whatsoever. As against this, when delay is condoned and the substitution is made the worst that can happen is that a cause is decided on merit after hearing the parties. Therefore the principle that substantial justice shall take preponderance over technical consideration should always be kept in view in deciding whether or not there is sufficient cause for the delay in making the application. There cannot be any presumption that the delay is caused deliberately or on account of culpable negligence or on account of malafides. In the absence of any definition of the expression “sufficient cause” employed in this Rule, the above considerations should prevail upon a court while deciding the circumstances which form sufficient cause. This will undoubtedly differ from facts to facts, always leaning on liberal interpretation. (See Union of India vs. Ram Charan, AIR 1964 SC 215).
11. In the instant case, though the learned No. 14 was the sole tadbirkar for the plaintiffs in the suit, he found that plaintiff No.l was a simpleton and took a merciful view to the default of the surviving plaintiffs in the absence of any wilful negligence on their part. He gave them the benefit of section 5 of the limitation Act and set aside the order of abatement in his discretion to achieve the ends of justice. The High Court Division reversed the order of the learned Subordinate Judge setting aside the abatement principally under a misconception that for getting the benefit of section 5 of the Limitation Act a separate application was absolutely under a misconception that for getting the benefit of section 5 ol~ the Limitation Act a separate application was absolutely necessary. An application for setting aside abatement may be treated as a composite application for condonation of delay and setting aside abatement. To impress this point, we may usefully quote the following passage from the judgment of the High Court Division in Chowdhury Saifuddin Ahmed vs. Shamsuddin and others, 40 DLR (HCD) 10 delivered by one of us who was a party to the decision: “It seems to us that although it is desirable that in all cases where a party who wishes to take advantage of section 5 of the Limitation Act ought to file a separate application for condonation of delay under section 5 of the Limitation Act setting out the facts and the reasons for the delay, it is not absolutely essential,…that a formal application must be filed as a matter of inflexible rule on pain of dismissal of the main application itself. If the main application contains the entire facts or reasons for the delay,; if evidence has been given both in favour and in rebuttal of the same, then there remains nothing for the court to ask for. The door of justice will not be shut out to the party simply because a formal application
12. The application for substitution after setting aside abatement filed in the present case substantially contains the prayer for condonation of the delay describing circumstances. Therefore the Subordinate Judge was not much wrong in treating the application as one also for condonation of delay.
13. As to the second point, it cannot be denied that in consideration of the entire circumstances of the case the learned Subordinate Judge exercised his discretion to allow substitution after setting aside abatement on condition of payment of Tk.500/- by the plaintiffs to the defendant as compensation. Such discretion when exercised with the ends of justice in view the High Court Division could not interfere with in revisional Jurisdiction. Similar view was expressed in Azimonnessa vs. Rup Gazi and others, 39 DLR (HCD) 6. 14. Although we need not go into the third point in the view we have taken with regard to the first two questions, it will be enough to leave some observation on this point as well. The instant suit is one for declaration of title and confirmation of possession in respect of several plaintiffs’ interests the extent of which is ascertainable. On the demise of one of such plaintiffs if no substitution is made the suit may abate not as a whole but as against the heirs of the deceased-plaintiffs. It is only when the interest of the plaintiffs is indivisible that a suit abates as a whole not being sustainable with respect to the rest of the plaintiffs.
15. In the result, the appeal be allowed and the impugned judgment and order of the High Court Division be set aside. We, however, make no order as to costs.
Source: III ADC (2006) 734