Harish Chandra Habuda Vs. Kanakamani Mohapatra and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/532545
SubjectCivil
CourtOrissa High Court
Decided OnJul-10-1995
Case NumberSecond Appeal No. 128 of 1984
JudgeR.K. Patra, J.
Reported in1995(II)OLR157
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 4 and 4(4); ;Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantHarish Chandra Habuda
RespondentKanakamani Mohapatra and ors.
Appellant AdvocateB.B. Ratho, P.K. Parida and R.C. Rath
Respondent AdvocateS. Misra-2, A.K. Misra, S. Mohanty, R.C. Ram and S. Senapati
DispositionAppeal allowed
Cases ReferredAnantnag v. Mist. Katiji).
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - it may exempt the plaintiff from the necessity of substituting the legal representative of a defendant who has failed to appear and contest the suit at the hearing and judgment may in such case be pronounced against the defendant not withstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before the death of such defendant. ' perusal of sub-rule (4) of rule 4 of order 22 as well as the above mentioned orissa amendment would show that the power to exempt the plaintiff from the necessity of substituting the legal representatives of non-contesting defendant must be exercised before abatement takes place. 3 was a non-contesting defendant, on failure to bring his legal representatives on record following his death abatement had already set in.r.k. patra, j. 1. defendant no. 1 is the appellant in this appeal.2. in view of the final order which i propose to make, minimal facts necessary for it need to be capsulised. respondent no. 1 fried the suit for declaration of her title and ownership over the suit lands and for recovery of its possession from the appellant. appellant and respondent no. 4 (defendant no. 4) only contested the suit by filing written statements. defendant no. 5 being the husband of respondent no. 1 filed written statement supporting his wife's case. other defendants did not contest the suit. although 9 (nine) issues were framed, the trial court took up issue no. 3 first for consideration which relates to the civil court's jurisdiction to try the suit. the said issue reads as follows : 'whether defendant no. 5 is a ceiling surplus-holder and whether the sale deed made by defendant no. 5 in favour of the plaintiff is nominal, collusive and fraudulent in order to defraud the provisions of the o.l.r. act and whether the suit is barred under the o.l.r. act ?'the aforesaid preliminary issue had to be taken up because the appellant urged that the suit lands form the subject-matter of proceeding under chapter iv of the orissa land reforms act (hereinafter referred to as 'the act') with respect to which, defendant no. 5 was the ceiling surplus-holder and the o.l.r. court held that the suit lands are the surplus lands at the hands of defendant no. 5 notwithstanding transfer of the same in favour of his wife. the trial court upheld the preliminary objection and held that it is the authorities under the act who are exclusively competent to decide if the suitlands are to be excluded from operation of the act or to vest with the government. it accordingly dismissed the suit holding that the civil court has no jurisdiction to decide such dispute. against the said judgment and decree of the trial court, respondent no. 1 (plaintiff) appealed to the court of the district judge. the learned district judge while setting aside the judgment of the trial court modified it to the extent that the proceedings of the suit shall remain stayed till disposal of the ceiling proceedings under the act.3. now the real controversy.govinda habuda-defendant no. 3 died on 1-12-1981 during the pendency of the appeal in the court of the district judge and no substitution of his legal representatives was made. these two facts, namely, the death of defendant no. 3 and non-substitution of his legal representative are not disputed.4. there is no dispute at the bar that the impugned decree passed by the learned district judge is liable to be set aside as it is against a dead person. respondent no. 1 who was the appellant in the court of the district judge has, however, filed applications in this court on 5-5-1994 on which decision is now called for. those applications are : (i) misc. case no. 249 of 1994 under order 22, rule 4 read with section 151, cpc praying for substitution of the legal representatives of the deceased defendant no. 3 and (ii) misc. case nos. 250 and 251 of 1994 respectively for condonation of delay and for setting aside abatement. another application has been filed on 2-8-1994 vide misc. case no. 337 of 1994 praying that the applications for substitution, condonation of delay and setting aside abatement may be sent to the lower appellate court for the disposal as per the provision contained in order 22, rule 4 (4),cpc. another application has also been filed on 2-8-1994 vide misc. case no. 338 of 1994 under order 22, rule 4 (4), gpc praying to exempt the respondent no. 1 from the necessity of substituting the legal representatives of the deceased defendant no. 3.5. let me first take up for consideration misc. case no. 338 of 1994 filed under order 22 rule 4(4) cpc praying to exempt respondent no. 1 from the necessity of substituting the legal representatives of deceased defendant no. 3. the aforesaid provision, namely order 22, rule 4 (4) has been inserted by the code of civil procedure (amendment) act, 1976. before insertion of sub-rule (4) by the amendment act of 1976, similar provision has already been made by the orissa high court amendment which is as follows :'whenever the court thinks fit. it may exempt the plaintiff from the necessity of substituting the legal representative of a defendant who has failed to appear and contest the suit at the hearing and judgment may in such case be pronounced against the defendant not withstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before the death of such defendant.'perusal of sub-rule (4) of rule 4 of order 22 as well as the above mentioned orissa amendment would show that the power to exempt the plaintiff from the necessity of substituting the legal representatives of non-contesting defendant must be exercised before abatement takes place. although defendant no. 3 was a non-contesting defendant, on failure to bring his legal representatives on record following his death abatement had already set in. no application contemplated under order 22, rule 4 (4), cpc or as per the orissa amendment having been filed before the decree was passed by the learned district judge, the application, i. e. misc. case no. 333 of 1994 filed in this court .cannot : be entertained and is dismissed accordingly. 6. now misc. case nos. 249, 250 and 261 of 1994;they are respectively for substitution, condonation of delay and for setting aside abatement. it is admitted at the bar that no order on merits in the afforesaid three miscellaneous cases can be passed by this court because death of defendant no. 3 has not occurred during the pendency of the present second appeal. but the bone of contention between the parties is whether those applications should be sent to the lower appellate court for disposal on merits as contended by shri s. misra or whether they should be rejected outright at this stage as urged by shri r.c. rath appearing for the appellant. shri rath relying on a bench decision of this court in satyananda bala samanta v: srimati das, 33 (1992) ojd 91 (civil) submitted that respondent no. 1 should not be allowed to move the lower appellate court for setting aside abatement and for substitution in the facts and circumstances of , the case. he urged that when the appellant filed applications in this court on 22-10-1984 for substitution, condonation of delay and setting aside abatement vide misc. case nos. 272, 273 and 274 of 1984, an objection being raised by respondent no. 1 to the effect that those applications were not maintainable as the death of defendant no. 3 had not occurred during the pendency of this appeal, the appellant did- not press those applications on 5-2-1985, shri rath' submitted that the plea of ignorance regarding the death of defendant no. 3 cannot be accepted in view of the fact that respondent no. 1 was staying in a near by village where defendant no. 3 was residing and in any case, when applications for substitution, condonation of delay and setting aside abatement were filed in this court as back as in 1984, knowledge of respondent no. 1 with regard to the de3th of the defendant no. 3 could be attributed from that time and the present applications having been filed at a belated stage, there is no justification for sending the applications to the lower appellate court for disposal on merits. shri s. misra, oh the other hand, contended that the decision of this. court in satyananda bala samanta (supra) has been set aside by order dated 26-7-1993 passed by the apex court in civil appeal no. 3470 of 1993. he further contended that since this court has no jurisdiction to entertain and consider the applications in question on merits, the question of rejecting those applications on the grounds urged by shri rath does not arise. that is the reason why shri misra stated that he has filed misc. case no. 337 of 1994 praying for sending the applications to the lower appellate court for disposal in accordance with law. he submitted that those applications are required to be decided by the lower appellate court keeping in view the principle laid down by the supreme court in air 1979 sc 1393 (n. jayaram reddi v. the revenue divisional officer) and air 1987 sc 1363 (collector, land acquisition, anantnag v. mist. katiji).7. i have considered carefully the rival contentions of the parties. the decree passed by the lower appellate court being against a dead person, the same has to be set aside. all the arguments made by shri rath for rejecting the applications for substitution, condonation of delay and setting aside abatement - pertain to the question of exercise of jurisdiction by the lower appellate court. since this court is not competent to pass any order on merits on those applications, it would be mete and proper that the respondent no. 1 should be given an opportunity before the lower appellate court to move the applications. 8. in the result the impugned judgment and decree passed by the learned district judge are set aside. the matter is remitted to him with a direction to dispose of the applications for substitution, condonation of delay and abatement according to law and then to dispose of the appeal afresh. with this misc. case no. 337 of 1994 stands disposed of.the lower court records way be sent back forthwith to the learned district judge. white doing so, misc. case nos. 249 250 and 251 of 1994 together with its counters may be sent to him for disposal.9. the appeal is allowed. there shall be no order as to costs.
Judgment:

R.K. Patra, J.

1. Defendant No. 1 is the appellant in this appeal.

2. In view of the final order which I propose to make, minimal facts necessary for it need to be capsulised. Respondent No. 1 fried the suit for declaration of her title and ownership over the suit lands and for recovery of its possession from the appellant. Appellant and respondent No. 4 (defendant No. 4) only contested the suit by filing written statements. Defendant No. 5 being the husband of respondent No. 1 filed written statement supporting his wife's case. Other defendants did not contest the suit. Although 9 (nine) issues were framed, the trial Court took up issue No. 3 first for consideration which relates to the Civil Court's jurisdiction to try the suit. The said issue reads as follows :

'Whether defendant No. 5 is a ceiling surplus-holder and whether the sale deed made by defendant No. 5 in favour of the plaintiff is nominal, collusive and fraudulent in order to defraud the provisions of the O.L.R. Act and whether the suit is barred under the O.L.R. Act ?'

The aforesaid preliminary issue had to be taken up because the appellant urged that the suit lands form the subject-matter of proceeding under Chapter IV of the Orissa Land Reforms Act (hereinafter referred to as 'the Act') with respect to which, defendant No. 5 was the ceiling surplus-holder and the O.L.R. Court held that the suit lands are the surplus lands at the hands of defendant No. 5 notwithstanding transfer of the same in favour of his wife. The trial Court upheld the preliminary objection and held that it is the authorities under the Act who are exclusively competent to decide if the suitlands are to be excluded from operation of the Act or to vest with the Government. It accordingly dismissed the suit holding that the Civil Court has no jurisdiction to decide such dispute. Against the said judgment and decree of the trial Court, respondent No. 1 (plaintiff) appealed to the Court of the District Judge. The learned District Judge while setting aside the judgment of the trial Court modified it to the extent that the proceedings of the suit shall remain stayed till disposal of the ceiling proceedings under the Act.

3. Now the real controversy.

Govinda Habuda-defendant No. 3 died on 1-12-1981 during the pendency of the appeal in the Court of the District Judge and no substitution of his legal representatives was made. These two facts, namely, the death of defendant No. 3 and non-substitution of his legal representative are not disputed.

4. There is no dispute at the Bar that the impugned decree passed by the learned District Judge is liable to be set aside as it is against a dead person. Respondent No. 1 who was the appellant in the Court of the District Judge has, however, filed applications in this Court on 5-5-1994 on which decision is now called for. Those applications are : (i) Misc. Case No. 249 of 1994 under Order 22, Rule 4 read with Section 151, CPC praying for substitution of the legal representatives of the deceased defendant No. 3 and (ii) Misc. Case Nos. 250 and 251 of 1994 respectively for condonation of delay and for setting aside abatement. Another application has been filed on 2-8-1994 vide Misc. Case No. 337 of 1994 praying that the applications for substitution, condonation of delay and setting aside abatement may be sent to the lower appellate Court for the disposal as per the provision contained in Order 22, Rule 4 (4),CPC. Another application has also been filed on 2-8-1994 vide Misc. Case No. 338 of 1994 under Order 22, Rule 4 (4), GPC praying to exempt the respondent No. 1 from the necessity of substituting the legal representatives of the deceased defendant No. 3.

5. Let me first take up for consideration Misc. Case No. 338 of 1994 filed under Order 22 Rule 4(4) CPC praying to exempt respondent No. 1 from the necessity of substituting the legal representatives of deceased defendant No. 3. The aforesaid provision, namely Order 22, Rule 4 (4) has been inserted by the Code of Civil Procedure (Amendment) Act, 1976. Before insertion of Sub-rule (4) by the Amendment Act of 1976, similar provision has already been made by the Orissa High Court Amendment which is as follows :

'Whenever the Court thinks fit. it may exempt the plaintiff from the necessity of substituting the legal representative of a defendant who has failed to appear and contest the suit at the hearing and judgment may in such case be pronounced against the defendant not withstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before the death of such defendant.'

Perusal of Sub-rule (4) of Rule 4 of Order 22 as well as the above mentioned Orissa Amendment would show that the power to exempt the plaintiff from the necessity of substituting the legal representatives of non-contesting defendant must be exercised before abatement takes place. Although defendant No. 3 was a non-contesting defendant, on failure to bring his legal representatives on record following his death abatement had already set in. No application contemplated under Order 22, Rule 4 (4), CPC or as per the Orissa Amendment having been filed before the decree was passed by the learned District Judge, the application, i. e. Misc. Case No. 333 of 1994 filed in this Court .cannot : be entertained and is dismissed accordingly.

6. Now Misc. Case Nos. 249, 250 and 261 of 1994;

They are respectively for substitution, condonation of delay and for setting aside abatement. It is admitted at the Bar that no order on merits in the afforesaid three miscellaneous cases can be passed by this Court because death of defendant No. 3 has not occurred during the pendency of the present second appeal. But the bone of contention between the parties is whether those applications should be sent to the lower appellate Court for disposal on merits as contended by Shri S. Misra or whether they should be rejected outright at this stage as urged by Shri R.C. Rath appearing for the appellant. Shri Rath relying on a Bench decision of this Court in Satyananda Bala Samanta v: Srimati Das, 33 (1992) OJD 91 (Civil) submitted that respondent No. 1 should not be allowed to move the lower appellate Court for setting aside abatement and for substitution in the facts and circumstances of , the case. He urged that when the appellant filed applications in this Court on 22-10-1984 for substitution, condonation of delay and setting aside abatement vide Misc. Case Nos. 272, 273 and 274 of 1984, an objection being raised by respondent No. 1 to the effect that those applications were not maintainable as the death of defendant No. 3 had not occurred during the pendency of this appeal, the appellant did- not press those applications on 5-2-1985, Shri Rath' submitted that the plea of ignorance regarding the death of defendant No. 3 cannot be accepted in view of the fact that respondent No. 1 was staying in a near by village where defendant No. 3 was residing and in any case, when applications for substitution, condonation of delay and setting aside abatement were filed in this Court as back as in 1984, knowledge of respondent No. 1 with regard to the de3th of the defendant No. 3 could be attributed from that time and the present applications having been filed at a belated stage, there is no justification for sending the applications to the lower appellate Court for disposal on merits. Shri S. Misra, oh the other hand, contended that the decision of this. Court in Satyananda Bala Samanta (supra) has been set aside by order dated 26-7-1993 passed by the apex Court in Civil Appeal No. 3470 of 1993. He further contended that since this Court has no jurisdiction to entertain and consider the applications in question on merits, the question of rejecting those applications on the grounds urged by Shri Rath does not arise. That is the reason why Shri Misra stated that he has filed Misc. Case No. 337 of 1994 praying for sending the applications to the lower appellate Court for disposal in accordance with law. He submitted that those applications are required to be decided by the lower appellate Court keeping in view the principle laid down by the Supreme Court in AIR 1979 SC 1393 (N. Jayaram Reddi v. The Revenue Divisional Officer) and AIR 1987 SC 1363 (Collector, Land Acquisition, Anantnag v. Mist. Katiji).

7. I have considered carefully the rival contentions of the parties. The decree passed by the lower appellate Court being against a dead person, the same has to be set aside. All the arguments made by Shri Rath for rejecting the applications for substitution, condonation of delay and setting aside abatement - pertain to the question of exercise of jurisdiction by the lower appellate Court. Since this Court is not competent to pass any order on merits on those applications, it would be mete and proper that the respondent No. 1 should be given an opportunity before the lower appellate Court to move the applications.

8. In the result the impugned judgment and decree passed by the learned District Judge are set aside. The matter is remitted to him with a direction to dispose of the applications for substitution, condonation of delay and abatement according to law and then to dispose of the appeal afresh. With this Misc. Case No. 337 of 1994 stands disposed of.

The lower Court records way be sent back forthwith to the learned District Judge. White doing so, Misc. Case Nos. 249 250 and 251 of 1994 together with its counters may be sent to him for disposal.

9. The appeal is allowed. There shall be no order as to costs.