- (1.) This appeal is directed against the judgment and order of the Judicial Commissioner, Goa dated 30-6-1972 setting aside the order of the Civil Judge, Senior Division, Panaji and declaring that the suit instituted by the appellant had abated.
(2.) The appellant Bank instituted a suit before the Civil Judge for recovery of an amount of Rs. 63,315/- against Vinaique Naique, advanced to him as loan by it. Vinaique Naique, the defendant contested the suit, issues were framed and evidence was being recorded. On 26-2-1970 statement of P.W. 1 was recorded and the case was adjourned to another date but on that date also the case was adjourned to 23-7-1970. The suit was again adjourned on 23-7-1970. on the ground that the defendant Vinaique Naique was indisposed and was hospitalised. Thereafter, the suit was taken up for hearing on 4-11-1970. On that date the defendant's pleader informed the Court orally that the defendant had died at Margaon but did not give any further details. The Custodian of the appellant Bank Panaji deputed his clerk to Margaon to collect necessary information and to obtain death certificate from the Civil .Registration Office if the defendant was found to be dead. The cleark visited Margaon on 5th and 6th November, 1970 and on enquiry he came to know that the defendant had died on 4-8-1970, he obtained death certificate from the Civil Registration Office on 6-8-1970 (sic) and handed over the same to the, Custodian of the Bank on 7th November, 1970. Since 8th November, 1970 was Sunday, the Custodian could not file the same in the Court. The appellant made application under O. XXII R. 4 of C.P.C. on 9th November, 1970 for bringing on record Smt. Nalini Bai Naique as the legal representative of the deceased original defendant. He made another application for condoning delay in making the application duly supported by affidavit. The appellant made another application requesting the Court to treat his earlier application made for condonation of delay as an application under O.22, R. 9 for setting aside the abatement of the suit. Smt. Nalini Bai Naique late defendant's widow contested the applications on the ground that the news regarding the death of Vinaique Naique had been published in the local newspapers and the plaintiff had knowledge of his death and further the suit had abated on the expiry period of 30/60 days of the death of original defendant as no application for setting aside abatement had been filed within time. Meanwhile, the appellant made another application for adding the names of Six heirs four sons, one major son and three minor sons and two minor daughters of the deceased defendant Vinaique Naique on the ground that earlier the appellant had no knowledge about the sons and daughters of the deceased defendant. On behalf of Mrs. Nalini Bai it was vehemently asserted before the trial Court that the application for substitution was not maintainable as it was filed beyond time, and in the alternative she was not the legal heir of the deceased defendant but she was only his (Meeira) and as other legal heirs of the deceased defendant were not brought on record within time the application for bringing the sons and daughters on record was liable to be rejected. The trial Judge on an elaborate consideration of the rival contentions held that even though the news relating to the death of original defendant Vinaique Naique had been reported in local newspapers but in view of the affidavit of Custodian and other material on record the appellant Bank came to know of the death of the defendant only on 4-11-1970 from the deceased defendant's lawyer in the Court and within four days thereof application for bringing the legal representative of the deceased defendant was made, therefore, the application made under O. XXII. R. 4 was not barred by time. The learned Judge further held that since Smt. Nalini Bai Naique one of the legal representative of the deceased defendant was brought on record within time, the sons and daughters could also be impleaded as defendants along with her. On these findings the learned Judge by his order dated 16-11-1971 set aside the abatement of the suit and directed for substituting the name of the widow Smt. Nalini Bai Naique along with the name of four sons and two daughters as defendants to the suit in place of deceased defendant Vinaique Naique. Mrs. Nalini Bai filed a revision application under S. 115 of Code of Civil Procedure before the Judicial Commissioner of Goa at Panaji against the aforesaid order of the trial Judge. The Judicial Commissioner by his order dated 30-6-72 set aside the order of the trial Judge and declared the suit to have abated. Aggrieved the plaintiff Bank has preferred this appeal after obtaining special leave.
(3.) The learned Judicial Commissioner interfered with the order of the trial Judge on the sole ground that Mrs. Nalini Bai whose name was proposed to be brought on record was not legal representative of the deceased Vinaique Naique as under the Portugees Law she being the widow had acquired Meeira rights and her status was not that of "Cabeca De Casal" (Head of the family and administrator) of the other heirs of deceased Vinaique Naique. Since all the heirs of the deceased defendant had not been brought on record along with Mrs. Nalini Bai within time the suit abated as Mrs. Nalini Bai alone could not represent the estate of the deceased defendant. The learned Judicial Commissioner did not interfere with other findings recorded by the trial Judge, instead he set aside the order of the trial Judge on the sole ground as aforesaid, and declared the suit to have abated.;