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2004 DIGILAW 209 (HP)

Sheetal Singh v. Shankar Dass

2004-09-02

K.C.SOOD

body2004
JUDGMENT : K.C. Sood, J. Dis-satisfied with the judgment and decree of the learned Additional District Judge, Kullu, District Kullu, dated 22nd June, 1995, appellant-plaintiffs laid a second appeal in this Court in September, 1995. 2. The appeal was admitted on 29th September, 1995. It appears, during the pendency of this appeal, the sole appellant Sheetal Singh died on 14th April, 1999. No steps were taken to substitute legal heirs of the sole appellant for more than four years. It was on 18th September, 2003 that these three applications under Order 22, Rule 3 of the Code of Civil Procedure, Section 5 of the Limitation Act and Order 22, Rule 9 of the Code of Civil Procedure, were filed for substitution of the legal representatives of the sole appellant. The appeal abated in 1999 itself and the applications were filed after four years and seven days of the expiry of the period of the limitation. According to the applicant, the appeal was filed by the appellant through his General power of Attorney Sardul Singh and Sardul Singh was under bonafide mistake that the appeal is "duly filed". It was on 6m August 2003 Sardul Singh came to Shimla to inquire about the appeal and informed his counsel that appellant Sheetal Singh has died. Counsel advised him to bring legal heirs certificate which was obtained on 8th August, 2003 and therefore, the delay in filing the applications deserved to be condoned. In the other application under Order 22, Rule 9 of the Code of Civil Procedure similar cause is pleaded. The plea of the appellant as spelt out in para-6 of the application is: That as the appeal was filed by the said General Power of Attorney Shri Surdul Singh the said also Attorney remain under bonafide mistake of fact that the appeal is duly filed and it was only on 06.08.2003 when he came to Shimla to inquire about the appeal and its out come in Hon'ble Court, he apprised his counsel that Sh. Sheetal Singh has died whereby he was advised to brig legal heir certificate which he obtain on 08.8.2003 and death certificate of Sh. Sheetal Singh which is being filed with this application." 3. The question which raisers for consideration is: Whether there is sufficient cause to condone the long delay of four years and seven days? 4. Mr. Sheetal Singh has died whereby he was advised to brig legal heir certificate which he obtain on 08.8.2003 and death certificate of Sh. Sheetal Singh which is being filed with this application." 3. The question which raisers for consideration is: Whether there is sufficient cause to condone the long delay of four years and seven days? 4. Mr. O.P. Sharma, learned Senior Counsel for the applicants proposed legal representatives would submit that there was a bonafide mistake on the part of Sardul Singh, General Power of Attorney, which caused the delay and this would be sufficient cause for condonation of the delay. 5. Mr.Sharma heavily rely on Bhagwan Swaroop and others v. Moot Chand and others, AIR 1983 SC 355 and Piara Singh and others v. Natha Singh and others, AIR 1991 SC 1529 in support of his contention. 6. The application is opposed on the grounds that no sufficient cause is either shown or made out. The factum of death was known to the applicants being sons, grand-son and daughter-in-law of Sheetal Singh. The General power of Attorney, Sardul Singh is none other than the son of appellant Sheetal Singh. There is no explanation for the delay in filing this petition. 7. Sufficient cause" it is well settled, is a cause which is beyond the control of the party claiming the condonation of delay under Section 5 of the Limitation Act. The cause for delay, which a party could have avoided by exercise of due care and diligence, will not be a "sufficient cause'. The test is to see whether the delay is bonafide or due to remissness or lack of care and caution in pursuing the litigation. In deed delay due to remissness or lack of care would not make out sufficient cause. 8. It is true that expression "sufficient cause" must receive a liberal construction to advance substantial justice, but this can only be done if no negligence or inaction or want of bonafide is attributable to the applicants. It must be remembered that litigant acquire a valuable right on the abatement of a suit or appeal. It is always for the applicant to spell out cogent grounds for condoning the delay and such explanation must cover the entire period for delay. 9. In the present case, there is no explanation at all for this inordinate delay for more than four years. It is always for the applicant to spell out cogent grounds for condoning the delay and such explanation must cover the entire period for delay. 9. In the present case, there is no explanation at all for this inordinate delay for more than four years. According to the appellant, the General Power of attorney was under bonafide mistake that appeal is duly filed and therefore, he did not care to inform his counsel about the death of appellant Sheetal Singh. It is the case of the applicants that Sardul Singh came on 6th August 2003 to inquire about the appeal and it is then he apprised his counsel for the death of appellant. It is difficult to believe that for more then four years, Sardul Singh, the attorney of the deceased appellant, did not care to find out about the appeal. 10. So far the plea of the applicants that Sardul Singh was not aware that legal heirs of the deceased appellant are required to be substituted is concerned, suffice it to say that ignorance of law is not recognised as an excuse. May be the General Powers of Attorney was ignorant about the law of limitation, but this in itself is no reason to condone the delay ignorance of law cannot be pleaded to overcome the limitation provided under the Limitation Act. 11. This apart, the Courts, as pointed by the Apex Court in Lachhman Dass Arora v. Ganeshi Lai and others, (1999) 8 SCC 532 , cannot extend the period of limitation on equitable grounds. The law of limitation may harshly affect a particular party, but it has to be applied with all its vigour when the statute so prescribes. 12. In the present case, there is no whisper as to why the fact of appellant having died was not brought to the notice of the counsel more so, when none other than own son of the appellant was a General Power of Attorney who himself was prosecuting the case. 13. In Bhagwan Swaroop, relied upon by the learned counsel for the appellant, an application to bring on record the legal representatives was moved under Order 1, Rule 10 of the Code of Civil Procedure. The High Court rejected the application saying that legal representatives cannot be substituted under Order 1, Rule 10 of the Code of Civil Procedure. 13. In Bhagwan Swaroop, relied upon by the learned counsel for the appellant, an application to bring on record the legal representatives was moved under Order 1, Rule 10 of the Code of Civil Procedure. The High Court rejected the application saying that legal representatives cannot be substituted under Order 1, Rule 10 of the Code of Civil Procedure. It is in this context that the Apex Court observed that resort to provision to bring on record the legal representatives was made under Order 22, Rule 4 of the Code of Civil Procedure, but this in itself was not sufficient to reject the application. The Court, in this context, observed that such cases have to be approached with a view to do substantial justice between the parties Technical rules or procedures must not override the consideration to decide the case on merits. Never-the-less. My Lord Amarendra Nath Sen, one of the members of the Bench, observed that the application made by the heirs of the deceased for substitution under Order 1, Rule 10 of the Code of Civil Procedure was misconceived and was rightly held to be so by the High Court and it could not be said that the High Court acted with any impropriety or illegality. His Lordship expressed doubt as to whether it was proper for the Apex Court to interfere with such orders passed by the High Court. However, doubts were not pressed to the point of dissent, in view of the facts and circumstances of the case. 14. In Piara Singh legal representatives of one of the appellants were already on record and it was only in respect of another appellant that legal representatives were not brought on record immediately on the death of the appellant. In that case one of the appellants died in June 1990. An application for substitution was moved on 7m March 1991. It is in this context that the Apex Court in the absence of any counter affidavit condoned the delay noticing the fact that diligent steps were taken in respect of earlier death of other appellants. 15. In the present case, there is no explanation, least reasonable or satisfactory, for condoning the delay. Merely saying that General Power Attorney of the appellant was under bonafide mistake that appeal is duly constituted after the death of the appellant is no explanation. Callousness, remissness and lack of bonafide are writ large. 15. In the present case, there is no explanation, least reasonable or satisfactory, for condoning the delay. Merely saying that General Power Attorney of the appellant was under bonafide mistake that appeal is duly constituted after the death of the appellant is no explanation. Callousness, remissness and lack of bonafide are writ large. Discretion to condone the delay vests in the Court only if sufficient cause for excusing delay is shown. 16. In N. Balakrishanan v. M. Krishanmurthy, (1998) 7 SCC 123 , the Apex Curt held that acceptability of explanation for the delay is the only criterion and the length of delay is not relevant. As already pointed out, in the present case, the explanation given by the applicants is not satisfactory. 17. A Division Bench of this Court in Prem Chand v. Rup Chand and others, (CMP(M) No. 482 of 1999 and CMP No. 71 of 1999, decided on 26.4.2000) held: "Be it stated that law of limitation may harshly affect a party to the case but it has to be applied with all its rigour as provided by the statute. The court may in exercise of powers under Section 5 of the Limitation Act condone the delay in filing application appeal if sufficient cause therefore (sic-therefor) is shown. However, the Courts have no powers to condone the delay and thereby extend the period of limitation on equitable grounds nor can the delay be condoned in a casual manner otherwise the very purpose of law of limitation will be defeated." 18. To conclude, the explanation furnished by the applicants is neither acceptable nor sufficient to condone the delay. Consequently, the applications are dismissed. RSA No. 321 of 1995 19. In view of the abatement of the appeal, the appeal too stands dismissed having been abated.