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2006 DIGILAW 1465 (PNJ)

Jeet Ram v. Ganga Phal

2006-04-05

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. The legal representatives of appellant Jeet Ram, who had died on 5.4.1991, during the pendency of this Regular Second Appeal, filed by him have filed this application for re-calling the order dated 15.1.1998, passed by this Court, whereby the application (C.M. No. 4681-C of 1997) filed by them under Order 22, Rules 44, 9, and 11 C.P.C. for substituting them as legal representatives of deceased Jeet Ram appellant, after condoning the delay and setting aside the abatement of the appeal, was dismissed in their absence. 2. It has been stated in the application that when the aforesaid application i.e. C.M. No. 4681-C of 1997 was called for hearing on 15.1.1998, counsel for the applicants was busy in arguments before a Division Bench, therefore, he could not appear at the relevant time. It has been further stated that in the order dated 15.1.1998, it has been mentioned that the applicants did not seek the condonation of delay in filing the application for setting aside the abatement of the appeal, whereas, a specific prayer was made in the application for condoning the delay in filing the application. It has been further stated that case of the applicants is covered by the decision of the Supreme Court, where six years delay in filing the application for abatement of the appeal was condoned. Therefore, in the interest of justice, it has been prayed that the order dated 15.1.1998 be recalled, as the same was passed without hearing the counsel for the applicants. The application is supported by an affidavit. 3. Undisputedly, the application for re-calling the order dated 15.1.1998 was field within four days i.e. on 19.1.1998. Since the order dated 15.1.1998 was passed in the absence of the counsel for the applicants, without hearing him, therefore, it will be in the interest of justice that the order dated 15.1.1998 be recalled and the applicants be provided an opportunity of hearing before passing an order on their application for substituting them as party after setting aside the abatement of the appeal. 4. Consequently, this application is allowed and the order dated 15.1.1998, passed by this Court, is hereby re-called. C.M. No. 4681-C of 1978. 5. 4. Consequently, this application is allowed and the order dated 15.1.1998, passed by this Court, is hereby re-called. C.M. No. 4681-C of 1978. 5. 1 have heard the arguments of learned Counsel for the parties on this application under Order 22 Rules 4, 9 and 11 C.P.C., for substituting the applicants as legal representatives of deceased Jeet Ram, after setting aside the abatement and condonation of delay. 6. In the application, it has been stated that deceased Jeet Ram filed Regular Second Appeal against the judgment and decree dated 31.8.1981, passed by District Judge, Faridabad, whereby suit for possession filed by the plaintiff was decreed after reversing the judgment and decree of the trial Court. The appeal was admitted by this Court on 30.11.1981. It is further stated that during the pendency of this appeal, appellant Jeet Ram died on 5.4.1991. It has been stated that the applicants are residents of rural area and they did not know that on the death of Jeet Ram, the legal representatives have to be brought on record within certain time. When they came to know about the pendency of the appeal, they filed an application for their substitution as legal representatives of deceased Jeet Ram and for setting aside abatement of the appeal after condonation of delay. The said application was supported by an affidavit of one of the legal representatives. In the counter-affidavit filed by the respondents, it has been stated that the application for bringing on record the legal representatives of the deceased was not filed within the prescribed period of limitation and along with the application for setting aside abatement, even no application for condonation of delay has been filed, therefore, the application filed by the legal representatives of the deceased appellant is liable to be dismissed. 7. Learned Counsel for the applicants has submitted that the applicants are the illiterate villagers and are residing in a remote village. They were not aware that they have to intimate about the death of their predecessor to their Advocate in the High Court and then to file an application for their substitution within a prescribed period of limitation. Learned Counsel submits that the appeal was admitted on 30.11.1981 for hearing and the same was not listed for regular hearing till death of appellant Jeet Ram on 5.4.1991. Learned Counsel submits that the appeal was admitted on 30.11.1981 for hearing and the same was not listed for regular hearing till death of appellant Jeet Ram on 5.4.1991. He further submits that in the year 1997, when the applicants came to the Advocate and enquired about the appeal field by their predecessor, they were advised to file an application for their substitution as legal representatives and for setting aside the abatement. In these circumstances, the said application was field after delay on 6 years. Learned Counsel submits that there was no mala fide, intentional or any dilatory tactics in not filing the application within the prescribed limitation. The delay in filing the application occurred because of ignorance of the applicants, who are the rustic and illiterate villagers. Therefore, according to learned Counsel for the applicants, in the interest of justice, delay in filing the application be condoned and abatement of the appeal be set aside. Learned Counsel submits that the expression "sufficient cause" should receive a liberal construction so as to advance substantial justice, particularly when no negligence or inaction or want of bona fides is imputable to the applicants. Learned Counsel further submits that in the application for substitution of the applicants as legal representatives after setting aside the abatement, a specific prayer has been made that delay in filing the application be condoned. In view of this specific prayer in the application, it is of no consequence that a separate application under Section 5 of the Limitation Act has not been filed. 8. On the other hand, learned Counsel for the respondents submits that in this case, the application for setting aside the abatement has been filed after 6 years and no sufficient cause has been shown for condonation of delay. She submits that merely because the applicants are rustic and illiterate villagers, delay in filing the application for setting aside the abatement should not be condoned and abatement should not be set aside, particularly when no separate application for condonation of delay under Section 5 of the Limitation Act has been filed. 9. She submits that merely because the applicants are rustic and illiterate villagers, delay in filing the application for setting aside the abatement should not be condoned and abatement should not be set aside, particularly when no separate application for condonation of delay under Section 5 of the Limitation Act has been filed. 9. After hearing the arguments of learned Counsel for both the parties, I am of the opinion that the application filed by the applicants for substituting them as legal representatives of deceased Jeet Ram and for setting aside the abatement after condoning the delay deserves to be allowed and the appeal filed by appellant Jeet Ram be heard on merits. Abatement of suit/appeal for failure to move an application for bringing the LRs. of deceased plaintiff/appellant within the prescribed period of limitation is automatic and a specific order for dismissing the suit or appeal as abated is not called for. For a period of 90 days from the date of death of a party, the suit remains in a state of suspended animation and then it abates. Mithailal Dalsangar Singh v. Annabvai Devram Kini. In the instant case, the appeal was admitted on 30.11.1981. Jeet Ram, the sole appellant, died on 5.4.1991. Therefore, after the expiry of 90 days, when the legal representatives of Jeet Ram were not brought on record, the appeal filed by Jeet Ram stood abated. The instant application was filed on 26.8.1987 i.e. after 6 years of the abatement. An amendment in Order 22 Rule 3(2) C.P.C. was made by this Court vide notification dated 21.2.1992. This amendment was held to be applicable prospectively and not retrospectively. Since in the instant case, the death of appellant Jeet Ram took place on 5.4.1991, therefore, the amended provisions is not applicable in the instant case. Sub-rule (2) of Order 22 C.P.C. provides for setting aside the abatement by the Court on sufficient cause is being shown for not applying for impleading/substituting all the legal representatives of the deceased within the time prescribed. Sub-rule (3), further provides that the provision of Section 5 of the Limitation Act shall apply to an application filed under Sub Rule (2) for setting aside the abatement. 10. Sub-rule (3), further provides that the provision of Section 5 of the Limitation Act shall apply to an application filed under Sub Rule (2) for setting aside the abatement. 10. Now, the question arises for consideration in this case is whether the applicants, who have filed the application after 6 years of the abatement of appeal, have sufficiently explained the reason for condoning the delay in filing the application for setting aside the abatement. The Supreme Court in several judgments has laid down the principles for setting aside the abatement and for condoning the delay in filing the application for abatement. Abatement kills the right to sue and has the effect of unceremoniously terminating pending legal proceedings without adjudication on merits. Therefore, the provision of abatement has to be strictly construed and applied to such cases to which its applicability is undoubtedly attracted. This has been so held by the Supreme Court in Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy. In the case of Sital Prasad Saxena (dead) by LRs v. Union of India and Ors., the Supreme Court while dealing with a case where in second appeal, appellant died and an application for substitution after condonation of delay and setting aside the abatement was filed, has set aside the abatement while observing that "once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing. And in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party. And in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party. Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties." In anther case of Rama Ravalu Gavade v. Sataba Gavadu Gavade, where the High Court had refused to condone the delay in making an application for setting aside the abatement, the Supreme Court, while setting aside the order of the High Court and while condoning the delay in filing application directed the appellate Court to dispose of appeal on merit and observed that the High Court not right in refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer. In the case of N. Balakrishnan v. M. Krishnamurthy, again the Supreme Court considered and laid down the principle for setting aside the abatement, after condoning the delay, when the application for substituting the legal representatives of the deceased appellant was not filed within the prescribed period of limitation. In that case, the application for setting aside the abatement was filed after the delay of 883 days. The trial Court condoned the delay and set aside abatement after finding that sufficient cause was made out for condoning the delay. The said order was set aside in revision by the High Court. The Supreme Court, while setting aside the order of the High Court, observed that "Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. The said order was set aside in revision by the High Court. The Supreme Court, while setting aside the order of the High Court, observed that "Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.?" The Supreme Court further observed that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice, the time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. It has been further observed that a Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. It has been held that the words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lend against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be brone in mind that he is a loser and he too would have incurred quite large litigation expenses. In Ram Nath Sao alias Ram Nath Sahu and Ors. While condoning the delay, the Court should not forget the opposite party altogether. It must be brone in mind that he is a loser and he too would have incurred quite large litigation expenses. In Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors., the Supreme Court has observed as under: 12. Thus, it becomes plain that the expression: "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provisions should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the court should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking, steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when strokes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way. Again the Constitutional Bench of the Supreme Court in Sardar Amarjit Singh Kalra (Dead) by LRs and Ors. v. Pramod Gupta (Dead) by LRs and Ors. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way. Again the Constitutional Bench of the Supreme Court in Sardar Amarjit Singh Kalra (Dead) by LRs and Ors. v. Pramod Gupta (Dead) by LRs and Ors. has observed that the Court should adopt a liberal approach in the matter of condonation of delay. The High Court should have, on the very perception it had on the question for abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of theirs. It has been observed that interest of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection of the application to set aside the abatement, condonation of delay and bringing the record the legal representatives is not in conformity with the object of the Court to do real, effective and substantial justice. The Supreme Court further observed as under: ...A careful reading of the provisions contained in Order 22 C.P.C. as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The Supreme Court has also observed as under: 27. The provisions contained in Order 22 are not be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The Supreme Court has also observed as under: 27. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws, Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. ...With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tends to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. In view of the aforesaid laid down by the various judgments of the Supreme Court, delay in filing the application for setting aside abatement of the appeal is liable to be condoned, as in my opinion, the applicants have shown the sufficient cause for condoning the delay. I do not find any substance in the contention of learned Counsel for the respondents that no separate application under Section 5 of the Limitation Act for condonation of delay has been filed. Undisputedly, in the application, filed by the applicants, for setting aside abatement, a specific prayer has been made that delay in filing the application be condoned. In my opinion, this prayer in the application itself is sufficient and the same can be treated a prayer for condonation of delay under Section 5 of the Limitation Act. Merely because a separate application has not been filed, the prayer for condoning the delay in filing the application for setting aside the abatement of appeal cannot be declined. In Mithailal Dalsangar Singhs case (supra), an application for bringing on record the LRs was filed after the expiry of the period of limitation. In the said application, a specific prayer for setting aside abatement was not made. A contention was raised that in absence of such a prayer, abatement of the appeal cannot be set aside. In Mithailal Dalsangar Singhs case (supra), an application for bringing on record the LRs was filed after the expiry of the period of limitation. In the said application, a specific prayer for setting aside abatement was not made. A contention was raised that in absence of such a prayer, abatement of the appeal cannot be set aside. While rejecting the contention, the Supreme Court has observed that too technical approach in such cases, is not called for. Thus, in the instant case, where there is a specific prayer for condoning the delay, same is sufficient and can be treated as a prayer made under Section 5 of the Limitation Act. 11 In view of the foregoing discussion, the application filed by the applicant is allowed. Consequently, the delay in filing the application is condoned, abatement of the appeal is set aside and the applicants are substituted as legal representatives of the deceased appellant.R.S.A. No. 1980 of 1981. 12. Adjourned to May 08, 2006 for hearing the appeal on merits.