Research › Search › Judgment

Chhattisgarh High Court · body

2012 DIGILAW 157 (CHH)

RAM BHAROS CHHAPARIYA v. NEETA DEVI

2012-06-25

N.K.AGARWAL

body2012
ORDER 1. This order shall govern the disposal of I.A.No.01, an application under Order 22 Rule 9(2)3 read with Rules 3 and 11 of the Code of Civil Procedure (for short 'the Code') for setting aside the abatement of appeal and for substitution of names of the applicants as appellant.s in place of deceased appellant- Ram Sharos and I.A.No.02, an application under Section 5 of the Limitation Act for condonation of delay in filing the application (I.A.No.01) for setting aside the abatement. 2. The plaintiff-respondent tiled a suit for specific performance of Contract against the original appellant/defendant - Ram Sharos. 3. The 6th Additional District Judge, Durg decreed the plaintiff's suit bearing Civil Suit No. 10-A/2000 vide judgment and decree dated 20.01.2001. 4. Feeling aggrieved and dissatisfied with the judgment and 'decree impugned, the instant appeal under Section 96 of the Code has been preferred by the appellant/defendant - Ram Sharos. 5. As the appeal was barred by II days and the Court fee has also not been affixed by the appellant, therefore, the appellant has also filed two applications, one M.C.P.No. M.C.P.I 042/2001 for condonation of delay in filing the appeal and the other, IANo.3180/2001 for exemption from payment of Court Fees. The above two applications are still pending consideration before this Court. 6. Meanwhile, on 01.03.2003, the sole appellant - Ram Sharos died and his legal representatives were not brought on record in time. 7. In execution of the decree, the respondent/plaintiff filed an application for bringing the applicants on record as legal representatives of deceased appellant-Ram Sharos. The same was allowed by the Executing Court vide order dated 25.01.2006. 8. Feeling aggrieved and dissatisfied with the above order, the applicants filed a Writ Petition, i.e. W.P.(C) No.2488/2007 before this Court, inter alia on the ground, the same has been filed by decree-holder after a period of 90 days and the execution proceedings stand abated. 9. This Court, vide order dated 25th September, 2008, dismissed the petition holding the provisions of order 22 Rules 3, 4 & 8 are not applicable to the proceedings in execution of a decree or order. 10. 9. This Court, vide order dated 25th September, 2008, dismissed the petition holding the provisions of order 22 Rules 3, 4 & 8 are not applicable to the proceedings in execution of a decree or order. 10. The applicants, i.e., legal representatives of the deceased-appellant have moved an application for bringing them on record in place of deceased appellant for setting aside the abatement and for condonation of delay in filing the application for setting aside the abatement (LA.No.01 and I.A.No.02) on 11.01.2010, i.e. after a period of about 7 (seven) years. In substance, the ground taken in the application for condonation of delay is reproduced as under : "That about a month ago the applicant Nos. 1, 2, 3, 5 and 6, who have been substituted in the execution case relating to the same ,case before the trial court, engaged Shri Gopal Das Vaishnav a senior advocate, of Durg in that execution case. That on 7-1-2010 Shri G.D.Vaishnav Advocate, as above, told the applicant No.2 Santosh that from the file of the execution case it appears that an appeal against the decree of the trial court has been filed in the high Court. That thereafter the applicant No.2 rushed to Bilaspur on 8-1-2010 contacted counsel here to verify the pendency of any appeal against the decree of the trial court and came to definite knowledge about the pendency of the instant appeal on 8-1-2010." 11. Shri H.B.Agrawal, learned Senior Advocate would submit: the delay has occurred in filing the application for setting aside the abatement due' to mistake of the counsel, and therefore, the delay deserves to be condoned and the application for setting aside the abatement and for substitution of the applicants in place of deceased appellant - Ram Bharos may be allowed. He placed reliance upon the judgment of Supreme Court in the case of Bhagwan Swaroop and others Vs. Moo/chand and others•, in which the Supreme Court has held: the laws of procedure are devised for advancing justice and not impending the same. 12. He placed reliance upon the judgment of Supreme Court in the case of Bhagwan Swaroop and others Vs. Moo/chand and others•, in which the Supreme Court has held: the laws of procedure are devised for advancing justice and not impending the same. 12. Per contra, the submission of Shri P. R. Patankar, learned counsel for the respondent, is that the appeal already abated and no cause much less sufficient cause, has been shown for setting aside the abatement and after condoning the delay in filing the application for setting aside the abatement the right accrues in favour of the respondent in appeal and it will be unfair and unjust to take away her vested right on such flimsy and baseless ground for which no foundation has been led in the application. It is further contended by Shri Patankar that the fact of pendency of appeal was just within the knowledge of the applicants since its inception, even they did not file a substitution application in the instant appeal; on the contrary they have prayed for dismissal of execution proceedings filed by the respondent for execution of the decree on the ground of its abatement. It is also submitted: pursuant to the decree passed by the trial Court the sale deed had already been executed and the appeal has now become infructuous. 13. I have heard learned counsel for the parties. 14. Order 22 of the Code provides for consequences arising out of death, marriage and insolvency of parties. Rule I thereof provides that the death of a plaintiff defendant shall not cause the suit to abate if the right to sue survives. Rule 2 lays down the procedure where one of the several plaintiffs died and the right to sue survives. Order 22 Rule 3 lays down the procedure in case of death of one of the several plaintiffs or the sole plaintiff for bringing on record the heirs and legal representatives of a deceased plaintiff or one of the plaintiffs. Order 22 Rule 4 lays down the procedure in case of death of one of the several defendants or the sole defendant for bringing on record the heirs and legal representatives of deceased defendant or one of the defendants, an application is required to be filed within the time prescribed therefor. The period prescribed for such an application indisputably is 90 days. The period prescribed for such an application indisputably is 90 days. Sub-rule (3) of Rule 4 of Order 22 provides for consequences of not filing such an application, i.e., that the suit shall abate so far as the deceased defendant is concerned. 15. Vide Rule 11 of Order 22, the above procedure has been made applicable in case of appeals. 16. Order 22 Rule 9 of the C.P.C. reads thus: "9. Effect of abatement or dismissal.- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the Receiver in, the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit (3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2). Explanation.- Nothing in this Rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order." 17. In Union of India Vs. Ram Charan2, a three-Judge Bench of the Supreme Court was concerned with an application filed under Order 22 Rule 9 C.P.C. for bringing the legal representatives of the deceased on record beyond prescribed period of limitation. The Court expressed the view that mere allegations about belated knowledge of death of the opposite party would not be sufficient cause. The Court applied the principle of "reasonable time" even to such situations and observes in paras - 8, 10 and 12 : "8. 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. 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 appellant's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement. 10. It is not necessary to consider whether the High Court applied its earlier Full Bench decision correctly or not when we are to decide the main question urged in this appeal and that being the first contention Rules 3 and 4 of O.XXII, C.P.C. lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff, as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. It does not say who is to present the application. Ordinarily it would be the plaintiff, as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased Plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other considerations as held by this Court in State of Punjab v. Nathu Ram (1) and Jhanda Singh v. Gurmukh Singh (2). Any way, that question does not arise in this case as the sole respondent had died. 12. The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action. Sub-rule (1) of r. 9 bars a fresh suit. The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time. The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit. This means that the applicant had to allege and establish facts which, in the view of the Court, be a sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicants not continuing the suit by taking necessary steps within the period of limitation. Such would be a very rare case. This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will not ordinarily be sufficient for the Court's holding that the applicant had sufficient cause for not impleading the legal representatives within time. Such would be a very rare case. This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will not ordinarily be sufficient for the Court's holding that the applicant had sufficient cause for not impleading the legal representatives within time. If the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement, the legislature would have expressed itself differently and would not have required the applicant to prove that he was prevented by any sufficient cause from continuing the suit. The period of limitation prescribed for making such an application is three months, under Art. 171 of the First Schedule to the Limitation Act. This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of the persons who are his legal representatives within that period. The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party's absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause' for setting aside the abatement or for the plaintiffs not applying to bring the legal representatives of the deceased defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiff's negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to 'sufficient cause' or not Courts have to use their discretion in the matter soundly in the interests of justice." 18. The Supreme Court, in Katari Suryanarayan and others Vs. Koppi Setti Subba Rao and other;, while considering the provisions contained in Order 22 Rule 9 of the Code in case of death of respondents has held in para 14 & 15 as under: "14. It may be true that a distinction exists where an application for setting aside of the abatement is filed in a suit and the one which .is required to be filed in a second appeal before the High Court but the same, in our opinion, by itself may not be sufficient to arrive at a conclusion that the parties were not aware of the consequences thereof. 15. The appellants themselves rely on the provisions of Order 22 Rule 10-A of the Code of Civil Procedure, which was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976. It does not, however provide for consequences. 15. The appellants themselves rely on the provisions of Order 22 Rule 10-A of the Code of Civil Procedure, which was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976. It does not, however provide for consequences. It does not take away the duty on the part of the plaintiff or the appellant, as case may be, to file an application for condonation of delay in bringing on record the heirs and legal representatives of a deceased plaintiff/appellant or defendant/respondent with the period prescribed." 19. The Supreme Court in the case of Balwant Singh (Dead) Vs. Jagdish Singh and others4, dealt with the subject in detail. After considering its several earlier pronouncements, the Supreme Court has held as under : "Liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction. on the part of the applicant, to whom want of bona fide is imputable. The expression "sufficient cause" implies• the presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. Even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of its acting vigilantly. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. Delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. It is difficult to state any straitjacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case." 20. Delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. It is difficult to state any straitjacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case." 20. Reverting to the facts of the present case, it is difficult for this Court to believe that the persons who have been impleaded in the execution proceedings in place of deceased appellant and have also challenged the order of their substitution in the execution by filing writ petition were not aware about the filing of the appeal by deceased-appellant, particularly, in a case, in which, the counsel who had filed the Writ Petition (C) No.2488/2007 and the present appeal is same. There is no explanation on record as to why the application for setting aside the abatement was not filed immediately on the death of Ram Bharos. Further, liberal construction of expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. The applicants filed the application for bringing them on record as heirs and legal representatives of deceased-appellant after a period of 7 years for which the ground taken by the applicants in the application, by no stretch of imagination, can be termed as "sufficient cause". 21. It is also pertinent to note that cause of delay (mistake of the counsel) shown by the applicants' counsel for not filing the application for setting aside the abatement after a period of 7 years runs counter to the stand taken in the application. The judgment of the Supreme Court, on which Shri Agrawal relied upon, is of no help to him in the facts and circumstances of the present case. 22. Indisputably, there is delay of more than 7 years in filing the application for abatement. Section 5 of Limitation Act, 1963 confers power to condone delay if the applicant is successful in showing that he was prevented from preferring the appeal/revision/M.C.C. for sufficient cause. It is the sufficient cause which gives jurisdiction to a court to condone the delay. 22. Indisputably, there is delay of more than 7 years in filing the application for abatement. Section 5 of Limitation Act, 1963 confers power to condone delay if the applicant is successful in showing that he was prevented from preferring the appeal/revision/M.C.C. for sufficient cause. It is the sufficient cause which gives jurisdiction to a court to condone the delay. Normally, after the expiry of the period right to sue extinguishes and the other side acquires right which normally should not be disturbed. Only in case of proving a sufficient cause the applicant is entitled to continue the litigation further. At the same time, the court should adopt a liberal approach while dealing with an application under Section 5 of the Limitation Act. 23. Thus, I have no hesitation in dismissing I.A.No.2/2010 for condonation of delay in filing the application for setting aside the abatement and consequently I.A.No. 1/2010 for setting aside the abatement does not survive for consideration and is also dismissed. 24. In the result, the appeal having already abated, also stands dismissed. 25. No order as to costs. Application and Appeal Dismissed.