Patna High Court
Dinesh SahniversusShiv Narayan Sahani
- Decided
- Disposal
- DISPOSED
- Bench
- RAMESH CHAND MALVIYA
Holding
The High Court held that the trial court’s order suffered a material irregularity and must be set aside, remitting the matter for proper adjudication under the appropriate procedural provisions.
Summary
In Title Suit No. 44 of 2015, the sole plaintiff Durga Sahani died on 06‑04‑2021. His legal heirs filed a petition on 01‑09‑2021 under Order I Rule 10 of the CPC seeking substitution of their names, but the trial court dismissed it, holding that the suit had abated on 07‑07‑2021 under Order XXII Rule 3 because no substitution petition was filed within the 90‑day period. The heirs appealed by a civil revision under Section 115 CPC. The High Court held that the trial court erred by relying on a hyper‑technical ground and refusing to invoke the court’s inherent power or a liberal, justice‑oriented approach. It observed a material irregularity in the trial court’s exercise of jurisdiction and remitted the matter, directing the parties to approach the appropriate forum under Order XII CPC for condonation of delay and substitution, while considering the benefits of Section 14 of the Limitation Act, 1963.
Issues considered
- Whether the suit abated under Order XXII Rule 3 of the CPC upon the death of the sole plaintiff.
- Whether a petition for substitution filed under Order I Rule 10 of the CPC is maintainable after the suit has abated.
- Whether the inherent powers under Section 151 CPC can be invoked to override the mandatory provisions of Order XXII.
- Whether the trial court’s dismissal of the substitution petition constitutes a material irregularity justifying revision.
Legislation cited
- Code of Civil Procedure, 1908 — s. 115, 151, Order I Rule 10, Order XII, Order XXII Rule 10A, Order XXII Rule 3, Order XXII Rule 9
- Limitation Act, 1963 — s. 14
Subjects
- Civil Procedure
- Substitution of parties
- Abatement of suit
- Inherent jurisdiction
- Limitation Act
- Procedural technicalities
- Revision jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.54 of 2022
======================================================
1. Dinesh Sahni, aged about 43 years, Male, Son of Late Durga Sahani
Resident of Village-Lakhaura Braham Tola, P.O. and P.S.-Lakhaura, District-
East Champaran.
2. Pramod Sahani, aged about 39 years, Male, Son of Late Durga Sahani
Resident of Village-Lakhaura Braham Tola, P.O. and P.S.-Lakhaura, District-
East Champaran.
3. Rajesh Sahani, aged about 31 years, Male, Son of Late Durga Sahani
Resident of Village-Lakhaura Braham Tola, P.O. and P.S.-Lakhaura, District-
East Champaran.
4. Chhathiya Devi, aged about 70 years, Female, Wife of Late Durga Sahani
Resident of Village-Lakhaura Braham Tola, P.O. and P.S.-Lakhaura, District-
East Champaran.
... ...Intervener / Petitioner/s
Versus
1. Shiv Narayan Sahani, Son of Puran Sahani, Resident of Village-Lakhaura
Braham Tola, P.O. and P.S.-Lakhaura, District-East Champaran.
2. Jeet Narayan Sahani, Son of Puran Sahani, Resident of Village-Lakhaura
Braham Tola, P.O. and P.S.-Lakhaura, District-East Champaran.
3. Jangali Sahani, Son of Puran Sahani, Resident of Village-Lakhaura Braham
Tola, P.O. and P.S.-Lakhaura, District-East Champaran.
…………. Defendants…..Opposite Party 1st, Set.
4. Phulgeni Devi, Wife of Sonalal Sahani, Daughter of Late Durga Sahani,
Resident of Village-Jhit Kahiya, P.O. and P.S.-Lakhaura, District-East
Champaran.
5. Leela Wati Devi, Wife of Vidya Sahani, Daughter of Late Durga Sahani,
Resident of Village-Semrahiya Jhitakhiya, P.O. and P.S.-Lakhaura, District-
East Champaran.
... … Interveners/ Opposite Party 2nd Set Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sunil Kumar No.III, Advocate
Mr. Bijendra Kumar, Advocate
For the Respondent/s : Mr. Kumar Anjaneya Shanu, Advocate
Mr. Shubham, Advocate
Mr. Ranvir Pratap Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL ORDER
15 17-03-2026 Heard the learned counsel for the petitioners as well
as learned counsel for the respondents.
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2. This Civil Revision application has been filed
under Section 115 of the Code of Civil Procedure, 1908
(hereinafter referred to as ‘CPC’) against the order dated
07.09.2022 passed in the Title Suit No. 44 of 2015, by the
learned Munsif Sadar Motihari, East Champaran (hereinafter
referred to as ‘Trial Court’) whereby and whereunder the
learned Trial Court has dismissed the application dated
01.09.2021 filed by the intervener/petitioners and opposite party
nos.4 and 5.
3. Learned counsel for the petitioners submitted that
during the pendency of the Title Suit No. 44 of 2015 sole
plaintiff namely Durga Sahani died on 06.04.2021 leaving
behind his wife, three sons and two daughters as his legal heirs,
who are petitioner nos.1 to 4 and opposite party nos. 4 and 5.
Furthermore, the petitioners and opposite party nos. 4 and 5
filed a petition on 01.09.2021 under order I Rule 10 of the CPC
in the learned Trial Court in Title Suit No. 44 of 2015, to
substitute their name after expunging the name of the plaintiff,
in order to contest the case.
3.i. He further submitted that the learned Trial Court
have not considered that Section 151 of the CPC which confers
inherent power to Court to pass any order in accordance with
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law in order to arrive at right conclusion, and abated the suit
which is not tenable in the eyes of law. Further, it was submitted
that the learned Trial Court has not considered the statement
made in paragraph no. 4 of the petition filed by petitioners and
opposite party nos. 4 and 5. He further submitted that the
learned Trial Court have not considered that the defendants
have not filed Petition under Order XXII Rule 10A of the CPC
in order to inform the Court regarding the death of plaintiff on
06.04.2021 and passed the order which is contrary to the law.
He lastly submitted that learned Trial Court has committed a
manifest error of law in passing the impugned order which is
not justified in the eyes of law and liable to be set aside.
4. Learned counsel for the opposite parties submitted
that, the petition dated 01.09.2021 is not maintainable under
Order I Rule 10 of the CPC rather the legal heirs of the
deceased plaintiff should have filed the substitution petition
under Order XXII Rule 3 of the CPC within the statutory period
of limitation but failed to do so. He further submitted that
unless the petitioners took step for the abatement under Order
XXII of the CPC, the petitioners are not liable to come on
record by taking shelter under Order I Rule 10 of the CPC
peculiarly when there is clear provision regarding abatement is
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laid down in CPC.
4.i. He further submitted that, the learned Trial Court
has rightly rejected the petition dated 01.09.2021 filed by the
legal heirs of the sole plaintiff (deceased) under Order I Rule 10
of the CPC and rightly held that the suit had abated by
operation of law on 07.07.2021 under Order XXII Rule 3 of the
CPC. Further, it was also stated that the impugned order does
not suffer from any illegality, irregularity, or jurisdictional error
so as to attract the revisional jurisdiction of this Hon'ble Court
under Section 115 CPC. The same has been passed after due
appreciation of facts, applicable legal provisions, and settled
judicial pronouncements of the Hon'ble Supreme Court of India.
4.ii. He also submitted that the petitioners have
attempted to circumvent the mandatory procedure prescribed
under Order XXII Rules 3 and 9 of the CPC by filing the
petition dated 01.09.2021 under Order I Rule 10 CPC for
substitution of their names in place of the deceased plaintiff,
without filing any petition under Order XXII Rule 9 of the CPC
for setting aside the abatement or for condonation of delay
under Section 5 of the Limitation Act, 1963. Further it was also
submitted that, the learned Trial Court, after hearing both sides
and upon a detailed discussion of Order I Rule 10 of the CPC
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and Order XXII Rules 3 & 9 of the CPC, and authoritative
judgments of the Hon'ble Apex Court, rightly held that once the
suit has abated, the same cannot be revived except by filing
appropriate petitions for setting aside abatement and
condonation of delay. Hence, the petition under Order I Rule 10
CPC was not maintainable and was accordingly rejected.
4.iii. It was further submitted that the provision of
Order XXII Rule 3 of the CPC is mandatory in nature.
Therefore, upon the death of the sole plaintiff, if no substitution
petition is filed within 90 days, abatement takes place
automatically by operation of law. Furthermore, the reliance of
the petitioners on Order XXII Rule 10A CPC is wholly
misconceived. The said provision only casts a duty on the
pleader to inform the Court about the death of a party, but
failure to do so does not extend or suspend the limitation period
prescribed under Article 120 of the Limitation Act, 1963 for
filing substitution. In the instant case, the knowledge of death of
plaintiff being within the exclusive domain of the petitioners,
their omission to file a substitution petition within limitation
cannot be condoned merely on the plea that the defendants did
not inform the Court.
4.iv. He Further submitted that, the petitioners
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reliance in Section 151 of the CPC is equally untenable and is
denied. It is a settled principle that inherent powers under
Section 151 of the CPC cannot be invoked to override or
circumvent the specific and mandatory provisions of the CPC.
Once a suit stands abated under Order XXII Rule 3 of the CPC,
it can only be revived under Order XXII Rule 9 of the CPC
upon showing sufficient cause, and not through inherent
powers. The learned Trial Court has rightly held that the
petitioners, being fully aware of the death of the plaintiff,
allowed the statutory period to lapse and subsequently tried to
bypass the consequences of abatement by invoking an irrelevant
provision of law. Further in order to support his averment he
relied on the judgment of Hon’ble Apex Court passed in
Jayalaxmi Janardhan v. Lilachand 1998(3) Mh.L.J.618 He
lastly submitted that the impugned order is a reasoned and
speaking order, based on settled legal principles, and does not
reflect any arbitrariness or non-application of judicial mind.
5. At this stage, before adverting to the rival
submissions, it would be apposite to notice the scope of
interference by this Court under Section 115 of the CPC. The
revisional jurisdiction of this Court is confined to examining
whether the Trial Court has exercised a jurisdiction not vested
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in it by law, or has failed to exercise a jurisdiction so vested, or
has acted in the exercise of its jurisdiction illegally or with
material irregularity. In the present case upon considering the
material available on record, fact and law, it is settled principle
of law that for applying wrong provision or section, neither the
right of anyone is defeated nor the petition gets dismissed.
6. Moreover, procedural laws are meant to advance
the cause of justice and not to frustrate it, and that Courts
should ordinarily lean in favour of deciding matters on merits
rather than shutting the doors of justice on technical grounds. In
the present case, the learned Trial Court, was required to adopt a
pragmatic and justice-oriented approach while considering the
prayer of the petitioners for substituting them in the Title Suit
No. 44 of 2015 and decide the suit on the basis of merits and
shall consider the benefits of Section 14 of the Limitation Act,
1963, sympathetically.
7. In view of the aforesaid discussions and settled
principles of law, the impugned order, therefore, suffers from
material irregularity in exercise of jurisdiction and has resulted
in grave prejudice to the petitioners. Learned Trial Court,
instead of adopting a liberal and justice-oriented approach,
rejected the petitioners’ prayer on a hyper-technical ground of
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approaching wrong provision and procedure, ignoring that
procedural prescriptions are handmaids of justice and not meant
to defeat substantive rights. Position of law is well settled that
Courts should ordinarily lean in favour of adjudication on
merits rather than dismissal on technicalities.
8. In the light of aforesaid observation, the petitioners
have liberty to approach appropriate forum with a petition under
Order XII of the CPC and petition for condonation of delay
along with substitution petition, without any prejudice from this
order, the learned Trial Court shall pass an appropriate order on
merits and also consider the benefits of Section 14 of the
Limitation Act, 1963 sympathetically.
9. Accordingly, the present Civil Revision No. 54 of
2022 is disposed of and remitted back to concerned Court for
proper adjudication in accordance with law.
(Ramesh Chand Malviya, J)
Anand Kr.
U
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