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Madhya Pradesh High Court · body

2013 DIGILAW 449 (MP)

Bhagwandas v. Ram Sahai

2013-04-03

Sanjay Yadav

body2013
ORDER 1. IA No. 13984/2011, an application under Order 22 Rule, Code of Civil Procedure, 1908 for setting aside the abatement of appeal qua respondent No. 2, who expired on 26.4.2011. 2. It is contended on behalf of appellant that the knowledge of death of respondent No. 2 Kamal Kumar could be gathered through communication made by the Counsel vide application under Order 22 Rule 10A, CPC on 27.6.2011. It is further contended that except the information there were no details regarding legal representives of respondent No. 2 and the appellants only after gathering the information and the details of the legal representatives of respondent No. 2 contacted the lawyer in second week of November 2011. By that time the period having expired for filing an application under Order 22 Rule 4 CPC has led to abatement of appeal. It is contended that the non-filing an application within the time stipulated from the date of knowledge was because of the time taken to collect the details regarding legal representatives of respondent No. 2. 3. Though the application has been opposed at by respondents No. 1,3,5,6 and proposed legal representatives of respondent No. 2; however, taking into consideration the fact that appellants for the first time came to know about the death of respondent No. 2 on 26.4.2011, vide application under Order 22 Rule 10A CPC, wherein there was no details of the legal representatives surviving respondent No. 2, some time must have got consumed in searching the name of legal representatives. It cannot, therefore, be presumed that the appellants were diligent in taking steps to bring the legal representatives on record. 4. In view whereof the application under Order 22 Rule 9 CPC deserves to be and is allowed and abatement of appeal qua respondent No. 2 is set aside. Consequently, IA No. 13983/2011 an application for condonation of delay in filing the application under Order 22 Rule 9 CPC, IA No. 13984/2011, and IA No. 13989/2011 an application under Order 22 Rule 4 for substitution of legal representives of the respondent No. 2 are allowed. 5. IA No. 13991/2011, an application under Order 22 Rule 9 CPC for setting aside the abatement of second appeal qua respondent No. 4, IA No. 13982/2011 is an application for condonation of delay and applying for substitution of legal representatives of respondent No. 4. 6. 5. IA No. 13991/2011, an application under Order 22 Rule 9 CPC for setting aside the abatement of second appeal qua respondent No. 4, IA No. 13982/2011 is an application for condonation of delay and applying for substitution of legal representatives of respondent No. 4. 6. It is contended that respondent No. 4 expired in October, 2006, i.e., after filing of second appeal. That, he was not represented and since the appellants are illiterate villagers, resident of a backward tribal village of district Mandla, they were not vigilant about the consequences of non-impleadment of his legal representatives. It is submitted in the course of hearing that it was only after when the information was given by the counsel for respondent No. 2 of the death vide application under Order 22 Rule 10A and while inquiring about his legal representatives that the appellants could sense the consequences of non-impleadment of deceased respondent. Consequently, they informed about the death of respondent No. 4 to the counsel in second week of November 2011 whereon the present application was filed. 7. On the self same ground appellants seek condonation of delay in substituting the legal representatives on record. 8. Though the application under Order 22 Rule 9, application for condonation of delay under section 5 of Limitation Act, 1963 and application under Order 22 Rule 4 CPC are being opposed by respondents Nos. 1, 3, 5, 6 and proposed legal representatives of respondent No. 2 on the ground that being resident of same village it cannot be presumed that appellants were not aware of the death of respondent No. 4. In respect of the contention that appellants are illiterate, it is submitted on behalf of respondents that the ignorance of law cannot be a ground for setting aside an abatement. In support reliance is placed on the decisions in Katari Suryanarayana and others v. Koppisetti Subba Rao and others (2009) 11 SCC 183 and Lanka Venkateswarlu (dead) by LRs. v. State of Andhra Pradesh and others (2011) 4 SCC 363 . 9. It is not in dispute that appellants hail from backward village of Tribal District Mandla. It is also not in dispute that appellants are illiterate and are not well versed with the procedural aspect of law. v. State of Andhra Pradesh and others (2011) 4 SCC 363 . 9. It is not in dispute that appellants hail from backward village of Tribal District Mandla. It is also not in dispute that appellants are illiterate and are not well versed with the procedural aspect of law. It appears that when information tendered by respondents vide their application under Order 22 Rule 10A CPC that they got apprised of the consequences of non-substitution of legal representatives in the matter, which led them to prefer an application. An ignorance in respect of procedural aspect was a sufficient cause; whereby, the appellants got prevented from filing an application under Order 22 Rule 4 CPC for substitution of legal representatives of respondent No. 4. 10. Trite it is that the expression ‘sufficient cause’ has to be construed liberally as would lead to advancement of justice. In Dolatram v. Kishan and others [ 1999 (2) MPLJ 620 ] placing reliance on the decision of Supreme Court in Sital Prasad v. Union of India ( AIR 1985 SC 1 ), Bhagwan Swaroop v. Moolchand ( AIR 1983 SC 355 ), State of Haryana v. Chandra Mani ( AIR 1996 SC 1623 ) and Rama Ravalu Gavade v. Sataba Gavadu Gavade [ (1997) 1 SCC 261 ], it was held that in case of illiterate rustic villagers the approach should be liberal while considering the application for condonation of delay or for even setting aside the order of abatement. It was held therein in paragraph 9 that “ignorantia juris non excusat” is not an inflexible rule when the Court is dealing with the case of a rustic farmer. In Rama v. Sataba (supra) it has been observed: “6. In view of the fact that the appellant is an illiterate farmer, the appropriate steps should have been taken by the counsel for the appellant on proper advice. In view of the fact that the counsel has not properly advised the appellant to taken necessary steps, delay had occasioned. The High Court, therefore, was not right in refusing to condone the delay. It is brought to our notice that no application has been filed for setting aside the abatement and the appeal also stands abated. In view of the fact the delay now stands condoned the abatement also stands set aside.” 11. The High Court, therefore, was not right in refusing to condone the delay. It is brought to our notice that no application has been filed for setting aside the abatement and the appeal also stands abated. In view of the fact the delay now stands condoned the abatement also stands set aside.” 11. In view of above pronouncement of law application under Order 22 Rule 9 deserves to be and is hereby allowed. Consequently application for condonation of delay in bringing the legal representative of respondent No. 4 on record as well as an application under Order 22 Rule 4 CPC is also alowed. 12. Let necessary correction in the cause-title be carried out within a period of seven days. 13. Since the proposed legal representatives are already represented through counsel, the notices on them are dispensed with.