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2001 DIGILAW 198 (HP)

PRABHA DEVI v. HARI KRISHAN SHARMA

2001-08-20

K.C.SOOD, KAMLESH SHARMA

body2001
JUDGMENT PER KULDIP CHAND SOOD, J.-Orders passed by learned Additional District Judge, Mandi dated November 18, 1996 are impugned in this appeal. 2. To appreciate the controversy, necessary facts may be noticed. 3. Plaintiffs Radha Devi and H. K. Sharma laid a suit before the learned Sub Judge 1st Class, Mandi, claiming that a room constructed over Khasra Number 1317 measuring 27.38 sq. yds. Situate in Mandi Town is jointly owned and possessed by the plaintiffs to the extent of 2/3rd share and the remaining 1/3rd share is jointly owned and possessed by defendant No. 1 Shri Krishna Nand. The property, it was alleged, was joint and un-partitioned between the plaintiffs and defendant No. 1 Krishan Nand, defendant, started dismantling room in question on April 7,1990 with intention to raise new construction without the consent of the plaintiffs. Such an action on the part of the defendant will have the effect of dispossessing the plaintiffs from that room. 4. The suit was resisted by the defendants. It was maintained that earlier khasra number 1317 was in possession of plaintiff Radha Devi and defendant Krishna Nand who had constructed their rooms "in equal portions". Plaintiff raised construction on her portion about 12 years back. Defendant started construction on his portion about 4/5 years back considering themselves to be exclusive owner(s) to the extent of their possession by mutual arrangement and private partition. It was denied that property is joint and unpartitioned between the Plaintiff Radha Devi and defendant Krishna Nand. It is further pleaded that Plaintiff No.2 Shri Hari Krishan Sharma had no concern with this property and, therefore, there is no question of plaintiffs No. 1 and 2 being dispossessed. 5. Learned trial Court by his judgment and decree dated February 29, 1992 decreed the suit holding that the property subject matter of dispute was joint and negatived the plea of the defendant Radha Krishan that there was private partition. Trial Court held that as exclusive possession of the defendants over the suit property was not established, therefore, they had no right to raise any construction without the consent of the other co-sharers. The trial Court accordingly passed a decree permanent prohibitory injunction restraining the defendants from raising any construction over the disputed property and also passed a mandatory injunction directing the defendants to remove the construction including pillars etc., which had been raised by them. 6. The trial Court accordingly passed a decree permanent prohibitory injunction restraining the defendants from raising any construction over the disputed property and also passed a mandatory injunction directing the defendants to remove the construction including pillars etc., which had been raised by them. 6. Dis-satisfied with this judgment and decree, defendants filed an appeal before the District Judge. 7. During the pendency of the appeal before the learned Additional District Judge, Mandi, one of the plaintiffs/respondent Radha Devi expired on August 29, 1993. No application was moved by the appellants to bring on record her legal representatives within the stipulated time. On April 4, 1994, two applications, one under Order 22 rule 4 and other under Order 22 rule 9 read with Section 5 of the Limitation Act were moved for bringing on record the legal representatives of deceased Radha Devi after setting aside the abatement and condoning the delay in filing the application. It was pleaded that it was on March 24, 1993 that the applicants/appellants came to know that Radha Devi had expired. Appellants ascertained the date of death from Municipal records and came to know that Radha Devi expired on August 29,1993. Radha Devi was survived by her sons Om Parkash, Santosh Kumar, Rajinder Kumar, Gaggu and Smt. Vinod Sharma. It was prayed that they may be permitted to be brought on record. Similar averments were made in the application for the setting aside of the abatement. It was pleaded that the applicants were not aware till March 24, 1994 about the death of Radha Devi and, therefore delay in filing the application be condoned, abatement set aside and legal representatives of deceased Radha Devi be permitted to be brought on record. 8. Application(s) were opposed by respondent H.K. Sharma on the ground that the defendants/appellants were aware of the death of Radha Devi on August 28, 1993 itself inasmuch as defendant participated in the death ceremonies of Radha Devi in her house on August 28, 1993. In any event, it was pleaded, that replying respondent Hari Krishan Sharma had informed the applicant in the Court on September 17, 1993 that Radha Devi has expired and inspite of such information, no steps were taken to bring on record the legal representatives of deceased Radha Devi. The appeal consequently abated and there are no sufficient cause to condone the delay and set-aside abatement. 9. The appeal consequently abated and there are no sufficient cause to condone the delay and set-aside abatement. 9. Learned Additional District Judge settled the following issues: 1. Whether there are sufficient grounds to condone the delay in filing of the application under order 22 rule 4, CPC? 2. In case Issue No. 1 is held in affirmative, whether the proposal legal representative of the deceased respondent Smt. Radha Devi are entitled to be brought on record in her place as prayed for? OPA. 3. Relief. 10. Learned Additional District Judge, after hearing the parties, concluded that there was no sufficient ground to condone the delay in the filing of the application and accordingly, dismissed both the applications. Resultantly, the appeal was dismissed having been abated. Aggrieved, the defendant-appellants are in this appeal. 11. We have heard Mr. Kuldip Singh, learned Senior counsel for the appellants and Mr. Y. Paul, learned counsel for respondent No. 1. 12. Learned counsel for the appellants contend that delay in filing the application(s) for setting aside of the abatement and to bring on record the legal representatives of deceased Radha Devi was neither deliberate nor visited with negligence. It is submitted that the appellants were not aware of the death of Radha Devi and they came to know about her death only on 24th of March, 1994 after ascertaining the factum of death of Radha Devi from municipal records at Mandi promptly. The defendants thereafter moved the application on 4th April, 1994. In the facts and circumstances, submitted learned Senior Counsel, the abatement ought to have been set-aside. 13. It is the evidence of applicant Krishna Nand (AW1) that in November/December, 1993, he had gone on All India tour and, therefore, he could not know about the death of Radha Devi. This statement does not inspite confidence. Firstly, Radha Devi admittedly expired on 28th August, 1993 and, therefore the factum of applicant Krishna Nand having gone on All India tour in November/December, 1993, is of no consequence. Secondly, there is overwhelming evidence to show that the applicant was aware of the death of Radha Devi. H.K. Sharma, one of the respondent, categorically stated that he informed the Court about the death of Radha Devi on 17th of September, 1993. Perusal of the orders dated 17th September, 1993 shows that on that date, there was no Presiding Officer. Secondly, there is overwhelming evidence to show that the applicant was aware of the death of Radha Devi. H.K. Sharma, one of the respondent, categorically stated that he informed the Court about the death of Radha Devi on 17th of September, 1993. Perusal of the orders dated 17th September, 1993 shows that on that date, there was no Presiding Officer. The Reader of the Court noticed the presence as on the previous date of hearing and further recorded "learned counsel for the respondents has stated that Smt. Radha Devi has been died". When the matter came up on 20th November, 1993, learned Additional District Judge passed a specific order that case should be listed on 22.12.1993 for filing of the application to bring on record the legal representatives of the deceased respondent. The order dated 20th November, 1993 Ext. RW1/A reads : "20.11.93 : Present: Sh. D.C. Guleria, Id. counsel for the appellant. Sh. H.K. Sharma, Id. counsel for the respondent. Now to come up for filing the application of L.Rs. on 22.12.93" 14. Inspite of this order, no steps were taken by the appellants to bring on record the legal representatives till 4th of April, 1994. There is no explanation for such in-action. This delay has not been explained. 15. Learned counsel for the appellants contended that information to the counsel about the death of Radha Devi cannot be construed to be knowledge of the appellants. The contention is misplaced. We find that appellant Krishna Nand appearing as PW1 categorically stated in his cross-examination that he had been attending each date of hearing. In his own words, "Since the filing of the appeal, I have been attending each date of hearing alongwith my counsel". It is no doubt true that he at one stage of his testimony stated that he had gone on All India tour in November or December, 1993 but he does not say when precisely he left Mandi on All India tour. Parties admittedly are close relatives. It is difficult to believe that applicant-appellants were unaware of the death of Radha Devi. Hari Krishan Sharma (RW1) categorically states In his evidence that father of Krishna Nand and Radha Devi were real brothers. It is his evidence that on the date of death of Radha Devi, Krishna Nand, appellant, his wife Prabha Devi and he himself participated in the last rites. Hari Krishan Sharma (RW1) categorically states In his evidence that father of Krishna Nand and Radha Devi were real brothers. It is his evidence that on the date of death of Radha Devi, Krishna Nand, appellant, his wife Prabha Devi and he himself participated in the last rites. He went on to state that Krishna Nand appellant was present during cremation of the dead body. Now this part of the evidence is not disputed in the cross-examination of this witness. 16. In view of the evidence on record, no fault can be found with the findings of learned Additional District Judge that appellant/applicants were well aware of the death of Radha Devi on 28th August, 1993 itself. In any event, on 17th September, 1993, it was brought to the notice of the counsel for the respondents that Radha Devi had expired. On 20th of November, 1993, adjournment was specifically given to move appropriate application to bring on record the legal representatives of deceased Radha Devi. But no such application was moved. An application to bring on record the legal representatives of deceased respondent has to be made within 90 days from the date of death of the deceased as required under Article 120 of the Limitation act. If no application is made within the time limited, the suit or appeal abates under order 22 rule 4(3) of the Code of Civil Procedure, however, it is always open to the appellants or any other party to apply for setting aside of the abatement within 60 days from the date the abatement takes place. It is, true that an application for setting aside abatement can be admitted if the applicant satisfies the Court that he has sufficient cause for not making the application within the stipulated period of 60 days. In the j present case, respondent Radha Devi died on 28th of August, 1993. Appeal therefore abated on 26th of November, 1993 and, therefore, it was necessary for the appellants to have moved appropriate application for setting aside of the abatement by 25th of December. However, no such application was filed till 4th of April. This is inspite of orders of the court on 20th November, directing the appellant to move appropriate application to (sic) on record the legal representative by 22.11.1993. Sufficient cause pleaded by the appellants/applicants is found to be not competent. However, no such application was filed till 4th of April. This is inspite of orders of the court on 20th November, directing the appellant to move appropriate application to (sic) on record the legal representative by 22.11.1993. Sufficient cause pleaded by the appellants/applicants is found to be not competent. On the other hand, there is preponderance of evidence that the appellant/applicants were aware of the death of Radha Devi respondent on the very day she died, yet failed to take steps to substitute the legal representatives within the period limited by law. 17. It is now well settled that setting-aside of abatement deprives the opposite party of a valuable right and, therefore, it should not be set-aside as a matter of routine. The Supreme Court in Union of India Vs. Ram Charan (deceased) through his legal representatives. AIR 1964 Supreme Court 215 observed that the provisions relating to setting aside of the abatement are made with a view to advance the cause of justice. The Court observed : "The provision of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set-aside the appellant so deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellants default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement". (emphasis supplied). 18. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellants default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement". (emphasis supplied). 18. We are of the view that the appellant/applicant has not been able to show that he was prevented by any "sufficient cause" in moving an appropriate application for bringing on record the legal representatives of the deceased or setting aside the abatement. 19. Learned Senior Counsel for the appellants then relying upon Mohammad Mustaqueen and other, petitioners v. Aftab Ahmad and others, respondents, AIR 1983 Allahabad 368 contended that heirs of Radha Devi moved an application under Order 1 rule 10 of the Code of Civil Procedure for adding them as applicants in the case and, therefore, there was no question of abatement of the appeal moreso when the legal representatives of the deceased would have been benefited by the abatement of the appeal. 20. The contention is fallacious and cannot be accepted, it is true that the legal representatives of deceased Radha Devi made an application under Order 1 Rule 10 of the Code on 27th of June, 1996 alleging that mother of the applicants Radha Devi expired during the pendency of the appeal and that applicants, who are the legal representatives of Smt. Radha Devi, may be allowed to be brought on record in the interest of justice. This application was moved almost after two years and seven months of the abatement of the appeal. The applicants obviously could not be brought on record unless the abatement was set-aside. It is true that so far application to bring on record the legal representatives of respondent, under order 22 rule of the Code, is concerned, it is immaterial who makes the application. Even this application under order 1 rule 10 made by the legal representatives of deceased respondent could be considered as an application under order 22 rule 4 C.P.C. provided it was filed within 90 days of the death of the respondent. This application having been filed beyond the period limited by law, was not maintainable. Even this application under order 1 rule 10 made by the legal representatives of deceased respondent could be considered as an application under order 22 rule 4 C.P.C. provided it was filed within 90 days of the death of the respondent. This application having been filed beyond the period limited by law, was not maintainable. The Apex Court in Ramcharan held that the Court cannot even "invoke its inherent powers under Section 151 CPC" to implead the legal representatives if deceased respondent if the suit had abated "on account of the appellants not taking appropriate steps within time to bring the legal representatives of the deceased party on record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for setting aside of the abatement within time". 21. This apart appellant/applicants took no steps to bring on record the legal representatives of the deceased inspite of the opportunity granted by the learned Additional District Judge on 20th of November, 1993 which shows gross negligence and remissness on the part of the appellants and, therefore, the appellants are not entitled to any indulgence of the Court. We find support, for the view we have taken, from Thakur Dass and others vs. Smt. Vidyawati and others, 1987 (Supp) Supreme Court Cases 154. In that case, the legal representatives of the deceased-respondents were not brought on record despite the opportunity afforded to them to do the needful. The appeal in the circumstances was disposed of having been abated. 22. For the foregoing reasons, we find no merit in this appeal and the same is dismissed. No order as to costs.