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Madhya Pradesh High Court · body

2007 DIGILAW 1137 (MP)

STATE OF M. P. v. PREM SINGH

2007-10-25

N.K.MODY

body2007
Judgment ( 1. ) BEING aggrieved by judgment and decree dated 11-4-1996 passed by Additional District Judge, Sardarpur, Dist. Dhar in Civil Suit No. 5-A/94, whereby the suit filed by respondent was decreed, present appeal was filed on 8-7-1996, which was admitted for final hearing on 1-10-1996. I. A. No. 6040/04 is filed by the appellants wherein it is alleged that respondent has died on 22-5-2002 and his legal representatives be taken on record. Since there was a delay in filing the application, therefore, MCP 2925/04 is filed under section 5 of the Limitation Act and IA No. 6041/04 is filed under Order XXII, Rule 9 of Civil procedure Code for setting aside the amendment. In the application it is alleged that when the status report of the case was collected by Collector, Dhar at that time from the office of this Court it came to the notice of the appellants that respondent has died, thereafter without any delay applications were filed. ( 2. ) THE reply has been filed by the respondent wherein the facts stated in the application were denied by the respondent. It was submitted that the deceased respondent Premsingh was not an ordinary person but Jagirdar of village dattgaon. It was alleged that respondent was elected as MLA of Badnawar and he was a famous person in the society. It was also alleged that since it was a sudden death, therefore, certain formalities were also done by the authorities of the State Government such as matter was inquired into and the print media also published about his death in daily news papers for a long period. It was alleged that all these facts clearly show that it is impossible that State Government could not know regarding death of respondent. In the reply it was alleged that the documents submitted by the appellants are prepared by the appellants with an oblique motive to condone the delay. It was prayed by the appellants to dismiss the applications as no case is made out for setting aside the abatement. ( 3. ) AMIT Agrawal learned counsel for the respondent submits that since application was not filed in time, therefore, a valuable right has accrued in favour of respondent. It was prayed by the appellants to dismiss the applications as no case is made out for setting aside the abatement. ( 3. ) AMIT Agrawal learned counsel for the respondent submits that since application was not filed in time, therefore, a valuable right has accrued in favour of respondent. Reliance was placed on a decision of Apex Court in UOI vs. Ram charan, AIR 1964 SC 215 wherein the Honble Apex Court dismissed the application filed by the Central Government for condonation of delay and observed as under :-There is no question of construing the expression sufficient cause liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions 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 is 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. It is true that it is no duty of the appellant to make regular inquiries from time to time about the health or existence of the respondent, but it does not mean that the mere fact of the appellants coming to know of the respondents death belatedly will, by itself, justify his application for setting aside the abatement. That is not the law. That is not the law. Rule 9 of O. XXII of the Code require the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know of the death of the opposite party is not sufficient. He had to state reasons which, according to him led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit. It is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how for those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to bring the legal representatives of the deceased respondent earlier on record. ( 4. ) FURTHER reliance was placed on decision of this Court in the State Govt. vs. Phoolchand Mahajan, reported in 1983 Weekly Notes 569 wherein this Court dismissed the application filed by the State on the ground that State were well aware of the death of the respondent and in the application under section 5 of the condonation of Delay, the delay of each days not explained. Mr. S. D. Bohra, learned counsel for the appellant placed reliance on a decision of the Apex Court in the matter of State of M. P. vs. S. S. Akolkar, reported in AIR 1996 SC 1984 , wherein it was held that it is settled law that the consideration for condonation of delay under section 5 of Limitation Act and setting aside of the abatement under Order 22 are entirely distinct and different. The Court always liberally considers the latter, though in some case, the Court may refuse to condone the delay under section 5 in filing the appeals. The Court always liberally considers the latter, though in some case, the Court may refuse to condone the delay under section 5 in filing the appeals. After the appeal has been filed and is pending, Government is not expected to keep watch whether the contesting respondent is alive or passed away. After the matter was brought to the notice of the counsel for the State, steps were taken even thereafter after due verification belated application came to be filed. It is true that section 5 of Limitation Act would be applicable and delay is required to be explained. The delay in official business requires its broach and approach from public justice perspective. Further reliance was placed on a decision of Apex Court in the matter of nagina Singh and others vs. Naga Singh and others, reported in AIR 2002 SC 3028 , wherein in a partition suit one of the party was died, Honble Apex Court observed that "though there is a serious dispute as to the dates of death, we are of the considered view that in the facts and circumstances of this case, the application for substitution of legal representatives of the aforesaid appellants should not have been rejected, having regard to the fact that all the contesting parties were on record and these appellants were brought on record only as legal representatives of appellant No. 1 who had died during the pendency of the appeal. Having regard to the facts of the case and the interest of justice, the High court ought to have condoned the delay, if any, in filing of the application for substitution and could have compensated the respondents by award of cost. This we consider appropriate, having regard to the interest of justice. The parties have litigated since the year 1974 and it is only fair that there should be adjudication on merit. From perusal of the record it appears that appeal was filed in the year 1996 and the appearance was made on behalf of deceased respondent on 22-2-1997 and respondent died on 22-5-2002 while the applications were filed on 30-11-2004. There is nothing on record to show that the fact has come on record that respondent has died, therefore, allegations made in the application that from the office of this Court appellants came to know about the death of the respondent, appears to be incorrect on the face of it. There is nothing on record to show that the fact has come on record that respondent has died, therefore, allegations made in the application that from the office of this Court appellants came to know about the death of the respondent, appears to be incorrect on the face of it. However Order 22, Rule 10a, Civil procedure Code, it is the duty of the counsel of party to inform the Court about the death and thereafter the Court has to give a notice of such death to the other side. Since the appeal was filed in the year 1996 and it was admitted for final hearing and the appearance was made by the respondent on 22-2-1997, thereafter it was not expected from the appellants to know about the existence of the respondent. Counsel for the respondent did not inform about the death of the respondent which took place on 22-5-2002, till the date when applications were filed for bringing the legal representatives on record and for setting aside the abatement. Since the counsel for respondent failed in discharging his duties, therefore, the application filed by the appellants cannot be dismissed on the ground that no sufficient ground is made out for condoning the delay. In the facts and circumstances of the case sufficient ground is made out for condoning the delay and for setting aside the abatement. In view of this applications are allowed. Appellants are directed to make necessary correction in the memo of appeal within a period of seven days. Petition allowed.