IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.364 OF 2004 IN SUIT NO.4143 OF 1985 Pramod Kumar Kishanchand Gupta Kishanchand P. Gupta V/s. Mrs.Minoo Pavri
...Applicant. ...Plaintiff.
...Defendant.
Appearances: Ld.Adv. Mr.Subhash Bane for the applicant. Ld.Adv. Mr.Khatib for defendant. CORAM :
HIS HONOUR JUDGE SHRI S.E. BANGAR (C.R.No.14) DATED : 9th March,2017
ORDER A third party/applicant has taken out this chamber summons for seeking leave of the Court for amending the plaint to bring on record himself as Karta of the plaintiff HUF and for further prayer to stay proceeding or adjourn the same till final disposal of the Appeal No.284 of 2002 in R.A.D.Suit No.2637 of 1985 pending before the Court of Small Causes, Mumbai. 2.
Prafulla R. Hede, power of attorney of the applicant
Pramodkumar Kishanchand Gupta by his affidavit in support of the chamber summons sought to bring on record, the fact that Kishanchand P. Gupta, Karta and Manager of Kishanchand P. Gupta, HUF has died on 23.10.2001 leaving behind him the applicant as last surviving co parcener. It is contended that the applicant being the only male descendant of the deceased Karta and Manager of Kishanchand P. Gupta, HUF, is now the Karta and Manager of the said family. As the
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plaintiff is an HUF, right to sue survives even upon demise of existing Karta and manager who had instituted the suit for and on behalf of the HUF. Therefore, according to him the suit does not abate on account of demise of sole Karta and Manager of the plaintiff HUF. The applicant has executed Deed of Power of Attorney on 31.7.2002 authorising Prafulla R. Hede to represent him as like he was representing the deceased Karta and Manager Kishanchand P. Gupta in the flat. 3.
The information regarding the demise of Kishanchand P. Gupta
was submitted orally by Advocate for the defendants submitted to the Court on 27.2.2004 and requested the suit to be dismissed as abated. The Advocate for the defendant has resisted the said request by pointing out the existence of HUF as the plaintiff and that the applicant has taken over as the Karta and Manager thereof, when the suit was fixed for orders on 10.3.2004. 4.
The applicant contends that the amendment as sought for is a
formal correction in cause title of the suit. Therefore, it be allowed. Simultaneously he has prayed for staying the suit till final disposal of suit No.2637 of 1985 pending before the Court of Small Causes, Mumbai by exercising power under Section 10 of C.P.C. 5.
The Advocate for the defendant has endorsed his say on the
affidavit of service of the chamber summons. According to him as Kishanchand P. Gupta, the Karta and Manager of HUF has expired on 23.10.2001, present chamber summons having been taken out after lapse of a period of three and half years since then, is barred by law of limitation. Hence, it is required to be dismissed. It is further alleged that no explanation regarding the delay so caused in taking out the
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chamber summons and for setting aside the abatement has been averred by the applicant. Hence, chamber summons is sought to be dismissed with costs. 6.
The applicant by affidavit in rejoinder has attempted to prove on
record the facts regarding the subject matter in issue and has opposed the contentions of the defendant. He has placed reliance on the observations made by the Court of Small Causes, Mumbai and the Hon.High Court of Bombay while dealing with the Suit NO.2637 of 1985 and Appeal No.284 of 2002. So also the facts regarding Writ Petition No.2004 of 2005 have been referred to claim that that the right to sue survives against the defendant. 7.
It has been argued by the learned Advocate for the applicant that
chamber summons is not barred by law of limitation nor it stands abated upon the demise of Karta and Manager Kishanchand P. Gupta for Kishanchand P. Gupta, HUF. Therefore, the chamber summon is not barred by law of limitation nor would be there any necessity to seek condonation of any delay. However, it this Court arrives at a conclusion that there is delay in taking out the chamber summons for seeking leave to amend the plaint, it is prayed to be condoned. 8.
Learned Advocate for the plaintiff has relied upon the
observations of the Hon.Supreme Court in the case of N.Balakrishnan Vs. M.Krishnamurthy, MANU/SC/0573/1998 : AIR 1998 SC 3222. It has been observed that, “9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit.
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Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 10.
The reason for such a different stance is thus: The primary
function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause. 12.
A court knows that refusal to condone delay would result in
foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari, MANU/SC/0335/1968 : (1969)1SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971 : (1972)2SCR874a. 13.
It must be remembered that in every case of delay there can be
some lapse on the part of the litigant concerned. That alone is not
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enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.” 9.
In view of the observations of the Hon.Supreme Court in the case
referred above, the explanations offered by the applicant for the delay caused in taking out the chamber summons are required to be considered liberally. When it is evident that the subject matter of the suit is an immovable property and simultaneous of the litigation between the parties had been pending before the Court of Small Causes at Mumbai and its Appellate Bench, since the request for staying the suit till conclusion of the said proceedings has been made in the chamber summons, it is necessary to verify as to what is the subject matter in the suit to stay the proceedings and what are the reliefs which are claimed thereunder. Upon perusal of the copy of judgment dt.25.3.2015 in R.A.D. Appeal NO.41 of 2012 arising out of R.A.D. Suit No.2637 of 1985 passed by the Hon.Appellate Bench of the Court of Small Causes, Mumbai that by judgment and decree dt.30.8.2001, R.A.D.Suit No.2637 of 1985 was decreed. The said suit was taken out by the defendant herein. Being aggrieved by the said judgment and decree, the said appeal was preferred by the present applicant as the
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Karta and Manager of Kishanchand P. Gupta, HUF. The subject matter in the said suit and the appeal is the same suit property as is involved in the present suit. The judgment and decree dt.30.8.2001 in R.A.D Suit No.2637 of 1985 has been set aside and said suit has been dismissed. 10.
The defendants have preferred Civil Revision Application NO.220
of 2015 before the Hon.High Court of Bombay being aggrieved by the judgment and decree passed by the Appellate Bench of the Court of Small Causes, Mumbai and the same is subjudice before the Hon.High Court of Bombay after interim orders were passed on 21.7.2015 and 6.5.2016. 11.
In regard with the issue whether upon demise of Karta and
Manager of HUF the suit stands abated, it has to be mentioned that HUF is treated to be a legal entity for the legal purpose in view of the provisions of codified Hindu Law. Therefore, even if the Karta and Manager of HUF died, someone from surviving coparcener does step into his shoes as the next Karta and Manager of said HUF. Therefore, demise of one Karta and Manager would not abate the suit. 12.
To support the said proposition the learned Advocate for the
applicant has relied upon the observations of the Hon.High Court of Calcutta in the case of Ganeshmull Surana Vs. Nagraj Surana, MANU/WB/0101/1953 : AIR1953Cal294. It has been observed by His Hon.Lordship of Calcutta High Court after considering the provisions of codified Hindu Law and the observations in the case of Kedarnath Kanoria and Ors., Vs.Khaitan Sons and Co, MANU/WB/0102/1959 in paragraph Nos.4,8,9,10,14,16 and 24 that, “4. The Question is Has there been an abatement of the suit. The
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answer depends on the nature of property in Hindu Law, in the plaint the allegation being that the joint family firm acted as the Commission agent, the right to recover the money is in the joint family. 8. The joint family arises, where it does arise, at the death of the common ancestor. After the death of the common ancestor, if the family chooses to continue united, there is a joint family. The eldest son, as a rule, is the natural head. But his position is not like that of the deceased patriarch; the one was head of the family by a natural authority; the other can only be so by a delegated authority. He is head by choice, or by natural selection, and not by right. The eldest of course is usually the head. But it is not necessary that he should be the head. A junior member who is more capable and better suited for the post may be the head. The head of a joint family is known as the 'Karta' or its managing member. 9. The joint family may not have any property. But if it has, it belongs to the family which is a corporate body of which the members are individuals. The ownership of the coparcenary property is in the whole body of the coparceners. According to the true notion of an undivided family in Hindu Law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share. Each member with his wife and children is entitled to be maintained and educated out of the family property. But no member can say that because some other member has got a bigger family, he is entitled to a better mode of living commensurate with his share in the income as on partition. If he is dissatisfied, his remedy is to ask for partition But until then perfect equality exists among the members of the family, namely, in their right to be maintained, to be educated, etc., out of the joint family property but no member has any share in the property or in the income thereof. 10. Death does not dissolve the family nor make any difference in its corporate character. At any particular point of time, if the question is asked: “who is the owner of the property'the answer would be, 'the joint family'. Who are its members ? “A, B, C”. If ten years later, the same questions are asked, the first question will evoke the same answer if, in the meantime, there has been no partition; the answer to the second question may be C, D, E,A and B having died in the meantime, and D and E born into the family. Those who are born in the family are entitled to be maintained and educated in the same way as the other members. But they get no specific share in the property. On the death of a particular member, nothing devolves on his sons as his heirs, because the member had no share or estate in the joint family property.
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His sons are interested in the joint family property not because they are sons of the deceased coparcener, but because they are members of the coparcenary. This is the fundamental characteristic of a Hindu joint family. Recent legislation, I do not think, has made any change in this respect. 14. Lord Phillimore delivering the judgment of the Board made the following observation (p. 125): "In the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action by his guardian before; & in each of these cases, therefore, the Court looks to Expl. 6 of Section 11, Civil P. C. (1908) to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors." 16. The decision, in my view, depends upon a very broad principle and that principle I apprehend is this: that if a person has by law the right to represent a group of persons and files a suit for the benefit of all to enforce a right belonging to them collectively, then whatever is decided in the suit is binding on all the persons concerned: all those persons are regarded as being parties to the suit, 24. The Karta has neither any share in the income nor in the property. It is the family, the corporate body, which is the owner of the property and if one member dies, it is still the family that remains the owner. If that is so, in a suit to recover joint family property, the Karta suing as such conducts the suit on behalf of the family. His name is used for the family. To borrow an expression from the Law of Partnership, it is a compendious way of describing the family. The death of the Karta does not, make any difference to the suit at all. The family is there and the next Karta springs up and the family is described as suing by so and so (the next Karta).”
13.
The ratio which has been laid down by the Hon.High Court of
Calcutta in the reported case referred above is that, managing member of the joint family has right to represent entire family in all transactions. In a suit, Karta can conduct the suit on behalf of the family. Therefore, upon his demise no difference would occur to the suit, but next Karta
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springs up to represent the family and the suit does not stand abate. However, the said judgment has been overruled by the judgment in the case of Kedarnath Kanoria and Ors., Vs.Khaitan Sons and Co (referred above). 14.
In view of the provisions of O.XII R.1 o fC.P.C. no abatement of
the suit would occur if the right to sue survives. In this case the subject matter of the suit being an immovable property and the reliefs sought in the suit being that of recovery of possession thereof along with compensation or damages, the right to sue survives for the HUF plaintiff. According to the Art.120 and 121 of schedule to the Limitation Act,1963 the limitation to bring on record the legal heirs of deceased party, is 90 days and the period of setting aside the abatement is 60 days. 15.
The Hon.Division Bench of High Court of Calcutta in the case of
Kedarnath Kanoria and Ors., Vs.Khaitan Sons and Co. has observed that if at the death of Karta an application for substitution of his legal representatives is not made within 90 days, the suit abates. It is further observed that members of the joint family though represented by Karta, are not parties to the suit. No order can be made against the members of the family personally. Those members are not on record of the suit. Though cannot separately appear and plead in the even of separation of joint family during the pendency of the suit and subsequent death of a separated member, the suit will not be abated. Though the plaintiff happens to sue as Karta and representative character, he is still the sole plaintiff on the record. It has been further observed in the case that, “it is unrealistic to think in a case where the karta has brought a suit on behalf of a joint family as the special rule in, Hindu Law allows him to
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do, that the joint family is the plaintiff and not the karta. The joint family is not a Corporation or other legal entity which can bring a suit as such. If the karta does not bring a suit it would be possible to bring a suit through all the members of the joint family. If such a suit is brought and there is a change in the constitution of the joint family, the necessary correction has to be made in the record. Where, however, the karta brings the suit, as he is entitled to do, changes in the constitution of the family will not necessitate a change of the record. It seems clear to me that when the karta brings the suit as the plaintiff, he continues to be the plaintiff and is the real plaintiff in spite of the fact that he is bringing the suit on behalf of a joint family...” It has been further observed that, “...The suit is a suit by the karta and if he dies, his legal representatives have to be brought on the record within the time limited by law. Numerous cases have laid down that his legal representatives can be brought on the record, I can see no reason to think that even though there is such a legal representative as settled by the authorities, the suit continues unaffected by the death of the karta in spite of the omission to bring such legal representatives on the record within the time limited by law..” 16.
In view of the above referred observations of the Hon.Division
Bench of Calcutta High Court in the case of Kedarnath Kanoria (referred above) the ratio laid down by the decision in Ganeshmull Surana (referred above) by the Hon.Single Bench has been overruled. The observations which now prevail are that, even if the suit is brought by Karta and Manager of HUF for and on behalf of the family upon his demise, his legal representatives ought to have been bought on record otherwise in the other cases as contemplated by Art.120 and 121 of the schedule of Limitation Act,1963 the suit would stand abated and legal
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heirs ought to have been brought on record within a period of three months or 90 days. 17.
In the present suit the Karta Kishanchand P. Gupta died on
23.10.2001, therefore, suit stood abated on 21.1.2002. The chamber summons has been registered on 9.3.2004. It shows that, the chamber summons has been taken out after a considerable delay. No explanation regarding the delay caused has been offered by the applicant. The affidavit shows that applicant took over as Karta of Kishanchand P. Gupta, HUF before 31.7.2002 and thereafter, has executed Deed of Power of Attorney on 31.7.2002 in favour of Prafula R. Hede under the belief that Hindi Undivided Family would survive with right to sue on the demise of Karta, no immediate steps were taken. However, considering the stand taken by applicant, it would be just and proper to afford the legal heirs and representatives of deceased Karta, an opportunity to prosecute the suit on merits. 18.
The copies of judgment and order dt.25.3.2015 in R.A.D. Appeal
NO.41 of 2012 show that the applicant was brought on record as legal representative by taking out the notice of motion on 13.3.2004. Considering that the present summons has already been moved during the same period, but remained unattended for a long time, in view of the pendency of the proceedings in the Court of Small Causes, Mumbai, the delay so caused can be condoned in the interest of justice. The abatement caused by demise of Karta and Manager and the Karta and Manager of the HUF would be required to be set aside since the present suit is regarding immovable property and rights to sue thereto which have been survived by the legal representatives of the deceased Karta as well as by the Coparceners in the family. In such circumstances, the
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abatement of the suit deserves to be set aside and the amendment also deserves to be allowed to be carried out in the plaint. Hence, the order : O R D E R 1.
Chamber Summons No.364 of 2004 is made absolute on costs of Rs.5,000/ payable to the D.L.S.A., Mumbai and Rs.5,000/ payable to the defendant.
2.
The applicant shall carry out necessary amendments in the plaint to substitute himself as the 'Karta and Manager' of 'Kishanchand P. Gupta, HUF' and to bring on record all the legal heirs and successors of deceased Kishanchand P. Gupta, within two weeks from the date of this order.
3.
The applicant shall place on record a copy of amended plaint and supply copies thereof to the defendants.
Dt.:9/3/2017
(S.E. BANGAR ) Judge, City Civil Court, Gr. Mumbai
Dictated on Transcribed on Signed on
: 09.3.2017 : 10.3.2017 :
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER”
14.3.2017 at 3.00 p.m. UPLOAD DATE AND TIME
Name of the Judge
(KISHOR PRAKASH SHERWADE) NAME OF STENOGRAPHER
HHJ SHRI S.E. BANGAR (COURT ROOM NO.14)
Date of pronouncement of judgment/order 9.3.2017 Judgment/order signed by P.O. on
14.3.2017
Judgment/order uploaded on
14.3.2017
