1997(1) ALL MR 71
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

P.S. PATANKAR AND R.K. BATTA, JJ.

Shri Keshav N. Bhagat & Ors. Vs. Shri Damodar Kashinath Nail & Ors.

Writ Petition No. 31 of 1988

14th March, 1996

Petitioner Counsel: Shri F. REBELLO, Sr. Advocate, with Shri D. PANGAM
Respondent Counsel: Shri S.G. DESSAI, Sr. Advocate, with Shri S.D.PADIYAR

Goa, Daman and Diu Mundkars (Protection from Eviction) Act (1975), Ss.27 and 28 r.w. Goa, Daman and Diu Mundkars (Protection from Eviction) Rules (1977), R.14(13) - Application by mundkar in proceeding before Mamlatdar for bringing on record legal representatives of deceased bhatkar filed after more than one month from death of deceased - Provisions of Civil P.C. and S.5 of Limitation Act apply. (Paras 3, 4, 5)

JUDGMENT

PATANKAR, J.- The petitioners herein are heirs of original mundkar Keshav N. Bhagat. The original bhatkar was one Jairam Neugi who sold part of the property to deceased respondent No.1 Damodar Kashinath Naik. The heirs of Damodar are brought on record.

2. Jairam Neugi expired on 7-12-1986. Application came to be filed on behalf of the said Applicant Keshav N. Bhagat on 25-6-1987 for bringing on record the heirs or legal representatives of deceased Jairam. However, the said Application came to be rejected by Mamlatdar of Tiswadi by taking the view that Rule 14(13) of The Goa, Daman and Diu Mundkars (Protection from Eviction) Rules, 1977 provided that such an application should be made within 30 days from the death of the bhatkar. Such an application was not made. There is no provision for condonation of delay. The provisions of Civil Procedure Code are not attracted and, hence, the case abated. Accordingly, he passed the Order of abatement on 9-11-1987. The same is under challenge in this Petition.

3. The learned counsel appearing for the petitioners submitted that if the provisions of Sections 27 and 28 of The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as 'the Act') are read with The Goa, Daman and Diu Mundkars (Protection from Eviction) Rules, 1977 (hereinafter referred to as 'the Rules'), then the provisions of the Limitation Act are attracted and it is necessary to read that Section 5 of the Limitation Act, 1963 shall come to the rescue of the petitioners. Section 27 of the Act is as follows :-

"27. Powers of Civil Courts to be exercised in conduct of inquiries and proceedings under this Act. - The Mamlatdar, the Collector, the Administrative Tribunal or the government shall exercise in all inquiries, proceedings, appeals or revisions, the powers as are exercised by the concerned trial court, appellate court or a court exercising revisional jurisdiction, under the Code of Civil Procedure, 1908."

Therefore, while exercising the power under the said Act the Mamlatdar, Collector, the Administrative Tribunal or the Government in case of all inquiries, proceedings, appeals or revisions, the provisions of Code of Civil Procedure, 1908, are required to be followed. In fact, Section 28 provides that in case of appeal or application for revision under the said Act, the period of limitation is 60 days and the provisions of Sections 4, 5, 12 and 14 of the Limitation Act, 1963 shall apply for filing such appeals or applications for revision. Therefore, it is clear from Section 27 that even in case of inquiries which are to be held by the Mamlatdar under Section 27, the provisions of Civil Procedure Code are attracted and there was no warrant for the learned Mamlatdar to hold that the provisions of the Civil Procedure Code are not attracted.

4. Rule 14(13) of the Rules reads as follows :-

"In case of death of any party while the case is pending,

(a) If an application is made within one month of such death, the Mamlatdar shall determine summarily who is the legal representative of the deceased party and subject to the provisions of the Act shall enter on record the name of such representative.

(b) If no such application is made, the case shall abate as regards that party."

Under the said Rule, application is required to be made within the period of one month of the death to the Mamlatdar for deciding who is the legal representative of the deceased party and if no such application is made then the case stands abated as regards that party. A simple reading of this may lead one to the conclusion that there is no provision or procedure for making an application for condonation of delay and for setting aside the abatement. But if the said Rule is read in such restricted sense then it would result into serious injustice in very many bonafide and legitimate cases depriving a party of its substantive and valuable rights. The learned counsel for the petitioners is right in giving such one illustration: Take the case where a mundkar is not at all aware about the death of the bhatkar and, therefore, is not able to make the application within one month. In such a case, he would lose his substantive right which is conferred upon him under the Act. Surely this is not the intention of the Legislature.

5. We also would like to point out that Order XXII, Rule 4(1) calls for procedure in case of death of one of several defendants or of sole defendant. Order XXII, Rule 4(3) provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. Sub-Rule (5) is as follows :-

"Where -

(a)











the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b)











the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved."

Similarly, Order, XXII, Rule 9 provides for effect of abatement or dismissal. Sub-Rule (2) thereof provides that any plaintiff or the person claiming to be the legal representative of a deceased plaintiff etc., may apply for an order to set aside the abatement or dismissal and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. Sub-Rule (3) thereof makes a provision of Section 5 of the Limitation Act being made applicable to the applications which are filed under Sub-Rule (2). Therefore, there is provision made in Civil Procedure Code for setting aside the abatement and certain provisions of the Limitation Act are made applicable, particularly Section 5. We find there is absolutely no reason as to why this provision should not be read even in such cases where applications are filed before the Mamlatdar under the Act. In our opinion, therefore, the provisions of Section 5 of the Limitation Act, 1963 shall be applicable in such cases.

6. Therefore, we pass the following Order :-

The impugned Order dated 7th of November, 1987 passed by the Mamlatdar of Tiswadi in Mundkar Case No. MND/4/79 is set aside. The matter is remanded to the said Mamlatdar for hearing afresh in the light of the observations made in this judgment. In the facts and circumstances of the case, there shall be no order as to costs.

Order accordingly.