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2000 DIGILAW 1528 (PNJ)

Kali Ram v. Mangat Ram

2000-12-12

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a civil revision and has been directed against the order dated 21.5.1996 passed by Civil Judge (Jr. Division), Jagadhri, who dismissed the application of the LRs of Telu Ram under Order 22 Rule 3 CPC as a result of that the suit filed by Telu Ram was dismissed in default. 2. Some facts can be noticed in the following manner:- Telu Ram son of Asha Ram deceased filed a suit for declaration against Mangat Ram to the effect that he is the owner of the property fully described in the head note of the plaint. He further prayed that directions be issued to the defendant to restore the vacant possession of the property to the plaintiff. The suit was contested. During the pendency of the suit Telu Ram plaintiff died on 5.3.1992. According to the applicant/petitioners, they are the LRs of deceased Telu Ram plaintiff and there is no other LR of said Telu Ram. In these circumstances they made an application for impleading them as LRs in place of Telu Ram plaintiff. Notice of the application was given to the respondent/defendant, who filed the reply and denied the allegations. According to the respondent/defendant Telu Ram died in February 1992 and not in March 1992. Moreover, the applicants are not the LRs of Telu Ram. In the alternative it was pleaded by the respondent that the application is not within the limitation and requires dismissal. 3. The parties addressed arguments before the trial Court and for reasons given in para 4 and 5 of the impugned order, the learned trial court dismissed the application and also dismissed the suit in default. Paras 4 and 5 of the impugned order can be quoted in the following manner :- "4. The Ld. counsel for the appellants has argued that death certificate has been placed on file which proves that Telu Ram expired on 5.3.1992 and not in February 1992 as alleged by the respondent-defendants. Paras 4 and 5 of the impugned order can be quoted in the following manner :- "4. The Ld. counsel for the appellants has argued that death certificate has been placed on file which proves that Telu Ram expired on 5.3.1992 and not in February 1992 as alleged by the respondent-defendants. He also drew my attention in the insertion made on 4th February 1992 in sub-rule (2) of the Rule 3 of the order, 22 CPC which reads as under :- "Where within the time limited by law no application is made under Sub- rule (1) the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect on it, has (had it?) been pronounced before the death took place and the contract between the deceased and the pleader in that event shall continue to subsist." Due to the above stated insertion the suit shall not abate as against the deceased plaintiff and therefore the applicant should be allowed to be impleaded as L.Rs of the deceased plaintiff. On the other hand the Ld. counsel for the respondent-defendants has argued that the application is not within time and therefore, it deserves to be dismissed. He also cited the following authority i.e. PLR Vol. CII (1992-2) 497 in case titled as Mehant Niranjan Dass v. Shiromani Gurdwara Prabandhak Committee. In this case it was held by the Honble Supreme Court that :- "Article 120 of the Limitation Act, 1963 clearly provides period of 90 days for having L.Rs of the deceased plaintiff or appellant or of a deceased defendant or respondent to be made a party." 5. I have heard the ld. counsel, for the parties. Keeping in view the above authority cited by the ld. counsel for the respondent-deceased I hereby hold that the application is not within time i.e. not within the period of 90 days from the date on which the plaintiff had expired i.e. on 5.3.1992 whereas the present application has been filed by the applicants on 26.8.1992. The applicants have also not filed any application for condonation of delay stating therein reasons for such a delay. The applicants have also not filed any application for condonation of delay stating therein reasons for such a delay. I hereby on this ground i.e. application being the time barred dismiss the application but keeping in view the insertion made in sub-rule (2) of Rule 3 Order 22 of CPC also hold that the suit shall not abate as against the deceased plaintiff and further that as the application is dismissed there is none today to appear on behalf of or represent the plaintiff. The suit is, therefore, being dismissed in default." 3. I have heard Mr. M.S. Guglani, Advocate on behalf of the petitioners and Mr. Ravinder Jain, Advocate behalf of the respondent. 4. The High Court has amended Order 22 Rule 3 CPC vide Punjab and Haryana High Court Amendment dated 25.2.1992 w.e.f. 4.2.1992 and sub-rule (2) of Rule 3 of Order 22 CPC reads as follows :- "Where within the time limited by law no application is made under sub-rule (1), the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contact between the deceased and the pleader in that event shall continue to subsist." 5. Thus the reading of the above amendment would show that w.e.f. 4.2.1992, in the event of the death of the plaintiff his suit shall not abate and it will be presumed that if the contract between the client and the lawyer is continuing one. In this case the death of Telu Ram took place on 5.3.1992. It has not been proved on the record that the death of Telu Ram took place prior to 4.2.1992 as alleged by the respondent. In this view of the matter the suit of plaintiff Telu Ram could not be dismissed by the trial Court nor it could abate because an application has already been moved by the LRs of the deceased for impleading them as party to the suit. This application was moved on 26.8.1992. 6. The learned counsel for the respondent has different attacks on the submissions raised by the learned counsel for the petitioners. He wants to support the impugned order. This application was moved on 26.8.1992. 6. The learned counsel for the respondent has different attacks on the submissions raised by the learned counsel for the petitioners. He wants to support the impugned order. His first submission is that the amendment of the High Court only protects the suit but it does not give any additional right to the LRs of deceased Telu Ram that they could make an application for impleading them as LRs at any time. According to the respondent, the limitation for making the application is 90 days and the present application has been moved on 26.8.1992. Moreover, the application which has been moved by the petitioners is not supported by an affidavit. Thus, there is no sufficient cause for the condonation of delay and this aspect of the case has been discussed by the trial Court. It has also been submitted by the learned counsel for the respondent that the High Court has no jurisdiction to curtail the period of limitation. It was further submitted that how the LRs of the deceased plaintiff would be in a position to lead evidence if they are not brought on the record within limitation. 7. I have considered all the submissions raised by the learned counsel for the respondent and in my opinion these are totally devoid of any merit. The legislature has given powers to the High Courts for making rules. Section 125 C.P.C. lays down that High Courts other than the Courts specified in section 122, may exercise the powers conferred by that section in such manner and subject to such conditions as the State Government may determine : Provided that any such High Court, after previous publication, make a rule extending within the local limits of its jurisdiction any rules which have been made by any other High Court. Section 122 CPC further lays down that High Courts not being the court of a Judicial Commissioner, may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. Thus the combined reading of sections 122 and 125 leaves no manner of doubt that the High Court was within its right to amend or alter Order 22 Rule 3 CPC. 8. Thus the combined reading of sections 122 and 125 leaves no manner of doubt that the High Court was within its right to amend or alter Order 22 Rule 3 CPC. 8. With regard to the limitation aspect that the present application has been moved on 26.8.1992, after 90 days, this point was also considered by the High Court in Ram Chand v. Lachhman Dass and others, HRR 1993 P&H 504 and in para No. 2 of the judgment it was held as follows :- "2. Learned counsel for the petitioner states that the view taken by this Court in Sunit Kumar Jains case (supra) was also taken by this Court in Hardevi v. Joginder Singh, 1988 PLJ 375 : (1988 HRR 427), but this view was not accepted by the Supreme Court and was specifically orderruled by the Supreme Court in a judgment rendered in Mahant Niranjan Dass v. S.G.P.C., AIR 1992 SC 492 : (1992 HRR 284). However, I find that now sub-rule (2) of Rule 3 of Order 22 of the Code of Civil Procedure has been substituted. The same reads as under :- "Rule 3(2) : "Where within the time limited by law no application is made under sub-rule (1), the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between the deceased and the pleader in that event shall continue to subsist." This amendment was not taken into consideration by the trial Court at the time of deciding the application. Consequently, the impugned order is set aside. The matter is remitted back to the trial Court with a direction to decide the application of the legal representatives keeping in view the aforesaid amendment." 9. Consequently, the impugned order is set aside. The matter is remitted back to the trial Court with a direction to decide the application of the legal representatives keeping in view the aforesaid amendment." 9. The learned counsel for the petitioners submitted that his clients hail from rural background amd they are not much conversant with the procedure of limitation and if there is delay in filing the application for impleading them as LRs of deceased Telu Ram the same can be condoned as this aspect of the case has also been taken note of in a judgment reported as Surtan v. Baboo and others, 1996(1) RRR 724 (Madhya Pradesh) and the Honble Judge was pleased to hold that if the LRs of the deceased plaintiff do not come forward within the prescribed period of limitation and if these persons belong to rural background the delay can be condoned. The observations of His Lordship can be accepted in the present case also. The learned counsel for the petitioners yet invited my attention to Ram Sumiran and others v. D.D.C. and others, 1985 PLJ 164, where the Honble Supreme Court condoned the delay of six years when the Honble Judges came to the conclusion that the applicants were from the rural background. In my opinion also the lis of the parties should not fail on technicalities and procedural wrangles. 10. In this view of the matter, this revision is hereby allowed and the impugned order dated 21.5.1996 is hereby set aside; the application of the LRs. of Telu Ram plaintiff for impleading them as LRs is allowed and directions are given to the trial Court to restore the suit and proceed according to law. Parties through their counsel are directed to appear before the learned trial Court on 8.1.2001. Revision allowed.