Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 799 (PAT)

Md. Hasan v. Meena Devi

2013-07-11

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard Mr. Syed Firoz Raza, learned counsel for the petitioners and Mr. Ganpati Trivedi, Learned counsel appearing on behalf of the respondent No. 1. 2. The petitioners are aggrieved by an order dated 15.01.2011 passed by learned Additional District Judge-I, West Champaran, Bettiah, in Misc. Appeal No. 21 of 2009, whereby he has reversed the order dated 26.05.2008 passed by learned Sub-Judge-I, Bettiah, in Title Suit No. 121 of 1999 and set aside the abatement of suit as against defendant No. 7 (Mantara Devi) and allowed the substitution petition filed on 24.12.2007. 3. There are certain facts which are not in dispute. Defendant No. 7 of Title Suit No. 121 of 1999 died on 25.11.2005. Upon an enquiry made by the plaintiffs, information as regards date of death of defendant No. 7 was furnished to the plaintiff on 19.03.2007. On 26.11.2007, the defendants filed a petition before learned trial Court to the effect that suit stood abated as against defendant No. 7, as the plaintiffs failed to substitute the legal heirs of defendant No. 7. After her death on 25.11.2005, which was within their knowledge at least since 19.03.2007, on 24.12.2007, the plaintiffs, who are respondents herein, filed an application for setting aside the abatement as well as for substitution of legal heirs of defendant No. 7. The said petition dated 24.12.2007 was dismissed vide an order dated 26.05.2008 passed by learned Sub-Judge-I, Bettiah, on the ground that the respondents / plaintiffs failed to give any sufficient cause, which prevented them from filing the petition for setting aside the abatement within time. Learned Sub-Judge, while rejecting the petition dated 24.12.2007 took into consideration the admitted relationship between the plaintiff and defendant No. 7 inasmuch as defendant No. 7 happened to be own Mausi (Mother’s sister) of the plaintiffs. 4. An appeal vide Misc. Appeal No. 21 of 2009 was preferred by the plaintiffs/ respondents against the said order dated 26.05.2008 passed by learned Sub-Judge-I, Bettiah. The appeal was finally heard by learned Additional District Judge-I, West Champaran, Bettiah, who vide impugned order dated 15.01.2011 allowed the miscellaneous appeal. The order dated 26.05.2008 passed by learned Sub-judge-I, Bettiah was set aside. He also allowed the petition dated 24.12.2007 filed for setting aside the abatement and substitution of legal heirs of defendants No. 7, subject to payment of a cost of rupees one thousand, payable to the defendants / petitioners. 5. The order dated 26.05.2008 passed by learned Sub-judge-I, Bettiah was set aside. He also allowed the petition dated 24.12.2007 filed for setting aside the abatement and substitution of legal heirs of defendants No. 7, subject to payment of a cost of rupees one thousand, payable to the defendants / petitioners. 5. Assailing the impugned order dated 15.01.2011 passed by learned Additional District Judge-I, West Champaran, Bettiah, in Miscellaneous Case No. 21 of 2009, Mr. Syed Firoz Raza, learned counsel for the petitioners submits that apparently the plaintiffs / respondents failed to make out a case that there was sufficient cause which prevented them from filing an application for substitution of the legal heirs of defendants No. 7 within the stipulated time and as such learned Appellate Court without considering all the aspects which were considered by the learned trial Court allowed the miscellaneous appeal in contravention of statutory provisions. He submits that unless sufficient reason and due diligence is shown, the delay in filing of substitution petition cannot be condoned as a matter of course. He submits that there was culpable negligence on the part of the plaintiffs / respondents in filing substitution petition within time in spite of knowledge of death of defendant No. 7. He accordingly submits that learned appellate Court wrongly allowed the appeal against a reasoned order passed by learned Sub-Judge-I, Bettiah. In support of his contention he has placed reliance on following two judgments:– (1) A.I.R. 1964 SC 215 (Union of India Vs. Ram Charan, deceased, through his legal representatives) and (2) A.I.R. 1976 Cal 299 (The Corporation of Calcutta Vs. Murari Churn Law) (F.B.). 6. Mr. Ganpati Trivedi, learned counsel appearing on behalf of the respondent No. 1 / plaintiff has contended that the impugned order cannot be said to be perverse. He submits that for the ends of justice, if the Court below allows the application for setting aside the abatement and for substitution of legal heirs of deceased defendant No. 7, such order need not be interfered with in exercise of revisional power or supervisory power of this Court under Article 227 of the Constitution of India. 7. He further submits that in such matters, the term “sufficient cause” should be interpreted liberally for the ends of justice. He has placed reliance on a Supreme Court judgment reported in Ram Nath Sao Vs. Gobardhan Sao reported in 2002 (3) P.L.J.R. (SC) 247. 7. He further submits that in such matters, the term “sufficient cause” should be interpreted liberally for the ends of justice. He has placed reliance on a Supreme Court judgment reported in Ram Nath Sao Vs. Gobardhan Sao reported in 2002 (3) P.L.J.R. (SC) 247. 8. The Supreme Court in case of Union of India Vs. Ram Charan (supra), relied upon by learned counsel for the petitioners that though the Court in considering whether the appellant established “sufficient cause” for not applying for setting aside of abatement within time need not be over strict in expecting such proof of suggested cause as it would accept for holding certain established, both because question does not relate to the merit of the dispute between the parties and because if the abatement is set aside, the merits of dispute can be determined while, if the amendment is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. The Supreme Court however, observed that it did not mean that the Court should readily accept whatever the appellant alleges to explain away his defaulted. 9. In case of Union of India Vs. Ram Charan (supra), the application for setting aside abatement was rejected by the Court below and the Supreme Court in facts and circumstances of that case refused to interfere with such order of rejection of the application for setting aside the abatement order. From paragraph-14 of the said judgment it will appear that Supreme Court in the facts and circumstances of that case and keeping in view the conduct of the parties refused to interfere with the impugned order. Calcutta High Court, in case of Calcutta Municipality Vs. Murari Churn Law (supra) reiterated the settled law that the Court had a discretion in the matter and that if Court was satisfied that there were materials before it which did not disclose culpable negligence or mala fide, abatement would be set aside. 10. In case of Ram Nath Sao Vs. Gobardhan Sao and Ors. (supra) reliance upon which has been placed upon by Mr. 10. In case of Ram Nath Sao Vs. Gobardhan Sao and Ors. (supra) reliance upon which has been placed upon by Mr. Ganpati Trivedi, learned counsel for respondent No. 1, the Court in paragraph-11 held that sufficient cause within the meaning of Section 5 of the Limitation Act or Order XXII Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice, when no negligence or inaction or bona fide is imputable to a party. Mr. Trivedi has specifically referred to paragraphs 9 and 11 of Supreme Court judgment reported in 1998 (7) SCC 123 in case of N. Balakrishnan Vs. M. Krishnamurthy which lays down the law as follows:– “9. It is axiomatic that condonation of delay is a mater of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such findings, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. 11. 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. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.” 11. In view of above discussion and judicial pronouncements noted above I am of the view that there being positive exercise of discretion by the Court below by setting aside the abatement, this Court is not required to interfere with such discretion in exercise of revisional or supervisory jurisdiction. From the impugned order, it appears that some reason has been assigned by learned Court below while setting aside the abatement and such reason in my opinion cannot be said to be perverse. This is settled law that this Court in exercise of power under Article 227 of the Constitution of India will not interfere even with an erroneous order unless it is shown that such order is grossly unjust and would cause grave injustice to the parties. I do not find such situation in the present case. 12. In view of the above, I do not find any merit in this application. This application is accordingly dismissed. 13. Before parting with this order, I would like to record my appreciation for the valuable assistance extended by learned counsel appearing for the parties in this case. ?