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2001 DIGILAW 148 (HP)

SANT RAM v. PURAN CHAND

2001-07-16

M.R.VERMA

body2001
JUDGMENT M.R. Verma, Judge.-Being aggrieved by the judgment and decree passed by the learned Additional District Judge, Solan in Civil Appeal No. 7-S/13 of 1987, the appellants/defendants (here-after referred to as the appellant) have preferred a regular second appeal which is pending disposal after admission. These two petitions (CMP. (M) Nos. 148 and 149 of 1999) have been moved in the said appeal. 2. The relevant and material facts for the purpose of present discussion are that the plaintiff/respondent No. 1 (hereafter referred to as the plaintiff) instituted a suit for declaration that he is a co-sharer/co-owner of the land measuring 14 bighas being 1/4th share of land comprising Khewat Khatauni Nos. 77/86 and 76/85, more specifically detailed in para 1 of the plaint and that the revenue entries inconsistent with the rights of the plaintiff are wrong, illegal, invalid, void, fictitious and nonest and as such inoperative on his rights to remain a co-sharer in possession to the extent of his share and for permanent prohibitory injunction restraining the defendants from interfering with his possession over the suit land in any manner. In the said suit as many as 21 defendants were impleaded. Out of them the appellants and respondent No. 2 to 10 were impleaded as defendants and the remaining respondents herein were impleaded as proforma defendants. It is also the case of the plaintiff that he has no dispute with proforma respondents out of whom the performs respondent No. 11 to 13 and 16 to 18 have the rights identical to those of the plaintiff and proforma respondent No. 14 and 15 are transferees from proforma respondent No. 11 and 12. Thus, he has claimed the relief against the appellants/defendants and respondents No. 2 to 10. 3. Written statement contesting the claim of the plaintiff was filed on behalf of the contesting defendants. However, proforma respondents No. 11 to 18 have, admittedly, not contested the claim of the plaintiff, the suit of the plaintiff was partly decreed by the learned trial Judge vide judgment dated 28-11-1996. Feeling aggrieved, the appellants preferred an appeal which was dismissed by the learned Additional District Judge, Solan by the impugned judgment. Hence the said appeal which was admitted for hearing on 4-9-1998. 4. Feeling aggrieved, the appellants preferred an appeal which was dismissed by the learned Additional District Judge, Solan by the impugned judgment. Hence the said appeal which was admitted for hearing on 4-9-1998. 4. During the pendency of the appeal the appellants filed CM.P. (M) No. 148 of 1999 under Order 22 Rules 4 and 9 read with Section 151 of the Code of Civil Procedure, and also filed CM.P. (M) No. 149 of 1999 under Section 5 of the Limitation Act for condonation of delay if filing CM.P. (M) No. 148 of 1999. 5. I have heard the learned counsel for the parties and have also gone through the records. 6. CM.P. (M)No. 149 of 1999 The sum and substance of the grounds for condonation of delay in filing CM.P. (M) No. 148 of 1999 is that the appellants/applicants had argued before the lower appellate Court that because of the death of three proforma defendants the suit had abated and that the lower appellate Court also did not grant any time to the appellants/applicants to substitute the legal representatives of such deceased respondents/defendants. It is also claimed that the appeal was admitted by this Court on 4-9-199.8 and on 26-11-1998 the counsel for the appellants was granted three weeks time to take steps to bring on record the legal representatives of the deceased proforma respondents/defendants. It took time to collect the requisite information which was finally received on 18-12-1998 and thereafter the application for substitution of the legal representatives of the deceased proforma respondents/defendants had been filed within limitation. Therefore, the delay which had occurred is neither intentional nor wilful but is because of the facts and circumstances as briefly stated here-in-above which were beyond the control of the appellants/applicants. It is also claimed that when-ever cause of substantial justice is pitted against the technical pleas like limitation etc., the latter has to give way to the former and that the principles of natural justice, equity and fair play do require that the delay that has occurred in filing the application for bringing on record the legal representatives of the deceased proforma respondents/defendants deserves to be condoned. 7. 7. It may be pointed out at the very outset that the delay in filing any application or appeal can be condoned only on sufficient cause made out for such condonation, the period of limitation cannot be extended nor the delay can be condoned on the principles of natural justice, equity and fair play. Law of limitation through may some time harshly affect a party, but nevertheless it has to be applied with ail its rigours. Therefore, the delay in this case can be condoned only if sufficient cause is shown by the appellants/ applicants for such condonation. 8. The appellants/applicants knew as far back as on 3-2-1994 about the death of respondent No. 12 and 13 (Achhri and Surat Ram respectively) as their counsel made a statement on 3-2-1994 before the trial Court that the said respondents had died. A perusal of the record reveals that the names of the said deceased respondents were thereafter ordered to be deleted on the concession given by the counsel for the appellants before the trial Court vide Zimni order dated 17-8-1994. Not only this, the counsel for the appellants further moved an application on 12-6-1994 before the trial Court informing that defendants No. 13,15 and 16 (Chuni LaL, Achhri Devi and Surat Ram respectively) had died. Vide order dated 24-6-1996 the trial Court found that out of the aforesaid persons defendant No. 13 before the trial Court (Chuni LaL) was alive and that the names of defendant No. 15 and 16 before the trial Court had already been ordered to be deleted. Despite this knowledge, the appellants did not care to ensure that the memo of parties in their appeal before the (earned Additional District Judge was correctly prepared in accordance with the fact as were within their knowledge. In so far as respondent No. 14 and 16 (Bachna and Parwati respectively) are concerned/the facturn of their death had come to the knowledge of the appellants on 20-10-1997 when such fact was noticed by the learned Additional District Judge in his Zimni order dated 19-10-1997. The appellants did not take steps, if any required to bring on record the legal representatives of the said deceased persons till the disposal of the appeal by the lower appellate Court. The appellants did not take steps, if any required to bring on record the legal representatives of the said deceased persons till the disposal of the appeal by the lower appellate Court. Having due knowledge of the death of the aforesaid deceased respondents/defendants the appellants have impleaded them as respondents in the second appeal pending in this Court. It is, therefore not a case where the appellants had no knowledge of the death of the respondents whose legal representatives are now sought to be brought on record. The contention that the lower appellate Court did not allow them time to bring on record the legal representatives of the said deceased, is devoid of any merit and substance. The appellants were not to be asked by the lower appellate Court to take steps to bring on record the legal representatives of such deceased parties about whose death the appellants had the knowledge. It was for the appellants to make appropriate application which they failed to do. Evidently, there is no explanation what-so-ever as to why despite the knowledge of death of the respondents No: 12,13,14 and 16 the appellants did not take appropriate steps to implead their legal representatives if so required in the memo of the appeal. The delay cannot be condoned on the ground that after the filing of the appeal the Court permitted the appellants to take steps for bringing on record the legal representatives of the deceased nor can the delay be explained on the ground that some time was taken by the appellants in collecting the information about the dates of death of the deceased parties when they knew years before about their death. In fact there is no cause much less a sufficient cause for condonation of delay in filing the application to bring on record the legal representatives of the deceased respondents about whose deaths the appellants had due knowledge years before. 9. As a result CM.P. (M) No. 149 of 1999 merits dismissal and is accordingly dismissed. 10. CM.P. (M) No.148/99 In view of the dismissal of the aforesaid CM.P. (M) No. 149 of 1999, this petition is dismissed as time barred. 11. In view of the above orders, the names of respondent No. 12,13,14 and 16 be deleted from the array of the proforma respondents and amended memo of parties be filed by the appellants within a week. 12. 11. In view of the above orders, the names of respondent No. 12,13,14 and 16 be deleted from the array of the proforma respondents and amended memo of parties be filed by the appellants within a week. 12. It is, however, clarified that in case the averments as in para 1 (h) of the memorandum of appeal may raise any substantial question of law, the appellants shall be at liberty to raise such question.