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1976 DIGILAW 134 (ALL)

Sudarshan Singh v. Daya Ram

1976-02-27

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the judgment and decree dated August 5, 1968 of Sri Saiyid Husain, Additional Commissioner Jhansi Division party dismissing the appeal No. 257/247 of 1965-66 and ordering the ejectment of the appellant and confirming the decree dated June 30, 1966 of the Asstt. Collector, I Class, Distt. Jhansi in suit No. 28 of 1962-63. 2. I have heard the learned counsels for the parties and have gone through the record. 3. The plaintiff-respondent Daya Ram had brought out a suit for the ejectment of the defendant-appellant Sudarshan Singh from plot Nos. 534, 535 and 727 situated in village Nimgahana. The trial court had vide its order dated June 30, 1966 decree the suit along with Rs. 1966 decree the suit along with Rs. 500/- as damage. In appeal, the lower appellate court has confirmed the order of ejectment, but has reduced the damages from Rs. 500/- to Rs. 73/- Sudarshan Singh has come up in second appeal before this court. 4. During the pendency of the second appeal, the plaintiff-respondent Daya Ram has died. The counsel for the appellant has moved an application on September 9, 1974 praying for the substitution of Balli Lal and Bhaggi Ram, ss/o Daya Ram as his legal representative. He has also prayed for the benefit of Section 5 of the Indian Limitation Act. The counsel for Batti Lal, on the other hand, has moved an application that the appeal may be declared to have abated due to non-substitution of legal representative within time. 5. Both counsels have argued at length before me on the question of abatement. Both counsels have agreed that the substitution application has not been made within time. The counsels for the appellant in his application for substitution that Daya Ram died about 8 or 9 months ago whereas according to the counsel on the order side, Daya Ram died on March 10, 1973. The minor difference in the date of death of Daya Ram is of no legal consequence. Under Item 120 of the Schedule of the Limitation Act, the period of limitation to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent made a party is 90 days from the date of death of the plaintiff-appellant defendant or respondent as the case may be. Under Item 120 of the Schedule of the Limitation Act, the period of limitation to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent made a party is 90 days from the date of death of the plaintiff-appellant defendant or respondent as the case may be. It is significant that the period of limitation begins to run not from the date of knowledge but from the date of knowledge but from the date of death. Thus it is of no consequence to say that the appellant did not have the knowledge of death within time unless sufficient cause is shown as required under Section 5 of the Limitation Act. The reason given in the appellant's application for substitution is that the appellant was an old man and was suffering from rheumatism and that his son Tej Bali who looked after him could not leave him uncared for. On June 2, 1974, the first date of the final hearing of the appeal neither the appellant nor his son could come and then an urgent letter was received from his counsel that Daya Ram was dead and any delay in substitution application would be fatal to the appeal. It is only then that steps to the appeal. It is only then that steps taken by the appellant to file the substitution application. The learned counsel for the appellant has in this connection referred to Lachhmi Narain and another v. Mangilal, A.I.R. 1957 (Raj.) 330. In this judgment a Single Judge of Rajasthan High Court has discussed the various pronouncements of different High Courts on the question of setting aside abatement where an application had been presented long after the period provided by law. In Jagdish Bahadur v. Mahadeo Prasad, A.I.R. 1941 Oudh 16, Chunni Lal Tulsiram v. Amin Chand, A.I.R. 1933 Lah. 356, Committee of Management of Bunga Sarkar v. Raghubir Singh A.I.R. 1951 Simla 257, Ram Prakash Das v. Kunji Lal, A.I.R. 1924 Pat. 126 and Phulwati Kumari v. Maheshwari Prasad Singh, A.I.R. 1924 Pat. In Jagdish Bahadur v. Mahadeo Prasad, A.I.R. 1941 Oudh 16, Chunni Lal Tulsiram v. Amin Chand, A.I.R. 1933 Lah. 356, Committee of Management of Bunga Sarkar v. Raghubir Singh A.I.R. 1951 Simla 257, Ram Prakash Das v. Kunji Lal, A.I.R. 1924 Pat. 126 and Phulwati Kumari v. Maheshwari Prasad Singh, A.I.R. 1924 Pat. 607 the following principle has been laid down :- "The Code makes it obligatory on an appellant to keep himself informed of any devolution of interest that may take place by reason of the death of any of the respondents, and it is not sufficient merely to say that the applicant had no knowledge of the death of the respondent till many months of an appeal gives a very important right to the person or his heirs against whom the appeal abates and it is not without sufficient reason that the Court should set aside as abatement." 6. The contrary view has been taken in Jwala Ram v. Hari Kishan Singh, A.I.R. 1924 Lah. 429, Raghunath Rai v. Radha Kishan Panna Lal, A.I.R. 1929 Lah. 634, Lakshmi Chand v. Lal Bihari Lal, A.I.R. 1932 Alld. 459, Mir Wajid Ali v. Phagoo Mandal, A.I.R. 1938 Pat. 125 and Ratansi Agariya Bhate v. Jay Singh Dinkarrao, A.I.R. 1954 Nag. 348. 7. The learned Single Judge has considered that on the facts of the case there was no reason to dispute the allegation of the appellant that he came to know of the death of the respondent only after the prescribed period of limitation was over and has observed as follows :- "The provisions of Section 5 of the Limitation Act are further directed to apply to an application of this nature. The law therefore, allows considerable latitude to the appellant to prosecute his appeal, and what better reason could there be for delay in the application than the fact that he had no knowledge of the death of the respondent. If he has the knowledge soon after the death, but present the application after the period provided by law, he has still a chance of his prayer being allowed, if sufficient cause is shown for the delay. It is not necessary to enumerate what facts would make out the cause to be sufficient, but as said above the fact that the appellant did not come to know of the death must obviously be the most sufficient cause." 8. It is not necessary to enumerate what facts would make out the cause to be sufficient, but as said above the fact that the appellant did not come to know of the death must obviously be the most sufficient cause." 8. With due reference to the above observation of the learned Single Judge, I may venture to express the view that no hard and fast rule has been intended to be laid down by the legislature in considering what would constitute sufficient cause within the meaning of Section 5 of the Limitation Act. Had the intention of the Legislature been to provide that the period of limitation would run only from the date of knowledge of the death for Item 120 of the Schedule could have been easily worded for as follows :- "Time from which period begins to run. The date of knowledge to the applicant of the death of plaintiff-appellant, defendant or respondent as the case may be." 9. The principle of interpretation of a statute is that it has to be read as it is and no words should be added. Thus the Limitation Act as it stands, at present cannot be interpreted to mean that the period of limitation will run from the date of the knowledge of the death. Thus what would or would not constitute a sufficient cause within the meaning of Section 5 is a matter to be considered by the Court in the individual circumstances of every case. There may be cases in which the fact that an applicant did not have the knowledge of the death of the other part may be considered as a sufficient causer. Likewise there may be cause where considering all the aspects involved this fact may not constitute a sufficient cause. In the present case both the contesting parties are residents of the same village. It may be noted that in the case of Rajasthan High Court the parties lived in different villages or towns. The size of the village has not been show n, but it is on record that the appellant is the ex-Zamindar. It cannot be, therefore, believed that he did not have knowledge of the death of the respondent for 8 or 9 months. What is more likely is that he evinced little interest in the second appeal as the order of the two courts below regarding ejectment was concurrent. It cannot be, therefore, believed that he did not have knowledge of the death of the respondent for 8 or 9 months. What is more likely is that he evinced little interest in the second appeal as the order of the two courts below regarding ejectment was concurrent. According to his own application he moved in the matter only after receiving an urgent letter from his counsel that any delay in substitution application would be fatal to the appeal. To quote the exact words from the application itself. "The appellant then per force had to send his son to Allahabad with instruction to do Pairwi on his behalf." The above circumstances clearly establish that in the present case sufficient cause for setting aside the abatement has not been established. Accordingly the application for setting aside the abatement is hereby rejected. 10. The second appeal stands abated under Section 3 of Limitation Act.