Hossain (Md) and others Vs. Dildar Begum and others, 55 DLR (AD) (2003) 60

Case No: Civil Appeal No. 91 of 1999

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: 55 DLR (AD) (2003) 60

Case Year: 2003

Appellant: Hossain (Md) and others

Respondent: Dildar Begum and others

Subject: Limitation, Procedural Law,

Delivery Date: 2001-2-19

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mahmudul Amin Choudhury CJ  
Mainur Reza Chowdhury J  
Md. Gholam Rabbani J  
Md. Ruhul Amin J
 
Hossain (Md) and others
………… Appellant
Vs
Dildar Begum and others
…………. Respondents
 
Judgment
February 19th, 2001
 
Code of Civil Procedure (V of 1908)
Order XXII rule 2
There is no limitation for substitution of the heirs of deceased parties in a revisional application— In a suit for partition, the right to sue survives till final decree is made and heirs of deceased defendants or plaintiffs should be brought on record else complications shall follow. …. (5)
 
Lawyers Involved:
Moqbul Ahmed, Advocate, instructed by AKM Shahidul Huq, Advocate‑on‑Record‑For the Appellants.
Md. Nowab Ali, Advocate‑on‑Record‑For Respondent. Nos. 1‑27.
Not represented‑Respondent Nos. 28‑40.
 
Civil Appeal No. 91 of 1999.  
(From the order dated 23‑5‑1999 passed by the High Court Division in Civil Revision No. 176 of 1990).
 
JUDGMENT
 
Mahmudul Amin Choudhury CJ.
 
This appeal by leave is against order dated 23‑5‑1999 passed by the High Court Division in Civil Revision No. 176 of 1990 rejecting the appellants' application for substitution of the heirs of deceased respondents on the ground that the revision case stood abated against deceased opposite parties and that no separate application was filed for setting aside the abatement.
 
2. Respondent Nos. 1 to 27 as plaintiffs instituted Partition Suit No. 275 of 1983 before the learned Assistant Judge, Cox's Bazar praying for declaration of title and partition in respect of the suit land comprising an area of 2 acres impleading the predecessor of the present appellants and other defendant‑petitioners and proforma defendant ­respondents. The predecessor of appellant 1(a) to 1 (c), 2(1) to 2(8), 8(1) to 8(5) and other defendants entered appearance in the suit and contested the same and the suit was decreed in preliminary form by judgment and order dated 25‑5‑1987. Against that judgment and decree predecessor of the present appellants and other defendants preferred Other Appeal No. 52 of 1987 before the learned District Judge, Cox's Bazar and the learned Subordinate Judge, Cox's Bazar dismissed the appeal. On being aggrieved by and dissatisfied with the judgment and decree passed in the aforesaid appeal the appellants and others preferred Civil Revision No. 176 of 1990 before the High Court Division. During pendency of the Civil Revision defendant Nos. 2, 8 and plaintiff Nos. 19, 20, 21 and 27 died and an application was filed before the High Court Division for substitution of the heirs and representatives of those deceased persons but the High Court Division by order dated 23‑5‑1999 rejected the application holding that there was no prayer for setting aside the abatement and no separate application was filed for that purpose and the application that was filed was not in proper form and order. Thereafter separate application praying for substitution of the heirs of the aforesaid deceased persons were filed on 9‑6‑1999 which was rejected by the High Court Division on 15‑6‑1999 holding that the applications are out of time and the Rule has already abated against all the petitioners.
 
3. On being aggrieved by this order of the High Court Division the petitioners moved this Division and leave was granted in the following terms:
 
“It is argued on, behalf of the petitioners that there can be no question of abatement but for the combined application of the provision of Order XXII, rules 3 and 4 of the Code of Civil Procedure and the material articles of schedule 1 to the Limitation Act but as neither Order XXII nor Limitation Act applied to Civil revision application the revision case cannot be held to have abated against the deceased parties. The High Court Division acted illegally in rejecting the application of the petitioner to bring the heirs of the deceased parties on record."
 
4. Mr. Moqbul Ahmed, learned Advocate appearing on behalf of the petitioners, submits that it is well settled that in a revision application there is no limitation for substitution of the heirs of parties in litigation. He submits that in the present case application for substitution was filed with a prayer for setting aside abatement on condonation of delay but the same were rejected. He also submits that in a suit for partition all the parties interested in the result ought to have been brought on record which the High Court Division has not considered.
 
5. Order XXII rule 2 of the Code of Civil Procedure provides that where there are more plaintiffs or defendants than one and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendants or defendant alone the court shall cause an entry to that effect to be made on record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants. In a suit for partition right to sue survives till final plaintiffs die right to sue survives and in that case heirs of surviving plaintiff or defendants as the case may be should be brought on record and that has been tried to be done by the appellant before the High Court Division. It is true that there is no limitation for substitution of the heirs and deceased parties in a revisional application but in a suit for partition the heirs of the deceased defendants or plaintiffs as the case may be should be brought on record or else the complication shall follow. In such a situation when an application has been filed for substitution on setting aside the abatement it ought to have been allowed.
 
6. Having considered the submission made by the learned Advocate for the appellant we hold that the High Court Division committed illegality and wrong in rejecting the application for substitution.
 
7. The appeal is accordingly allowed. The aforesaid order passed by the High Court Division rejecting the prayer for substitution is hereby set aside and the prayer for substitution is allowed on setting aside abatement.
 
The will be no order as to costs.
 
Ed.