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2014 DIGILAW 1140 (HP)

Manju Singh v. Champa Mahajan

2014-08-26

DHARAM CHAND CHAUDHARY

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JUDGMENT : - Dharam Chand Chaudhary, J. (oral). Challenge herein is to an order passed on 7.9.2013 by learned Civil Judge (Junior Division), Dalhousie in an application under Order 22 Rule 9(2) read with Section 151 CPC registered as CMA No. 57 of 2009 whereby the application has been allowed on condonation of delay as well as setting aside the abatement. The petitioners herein, legal representatives of deceased defendant Ranjeet Singh, have been ordered to be brought on record as defendants. 2. The challenge to the impugned order is on the grounds inter alia that the application being hopelessly time barred has been allowed by liberally construing the question of delay and also misreading the facts of the case and also the evidence available on record. 3. On behalf of the petitioners-defendants it is canvassed that the factum of the death of defendant Ranjeet Singh was well within the knowledge of the plaintiff and the ground raised in the application that she came to know about his death only during the course of execution proceedings is neither tenable nor supported by evidence. 4. Learned counsel, while fairly submitting that in an application of this nature, the question of delay is to be construed liberally, has, however, urged that in this case when the factum of death was well within the notice of respondent-plaintiff, the application should have been filed at an appropriate stage during the pendency of the suit. On the death of the defendant and for want of consequential steps, the suit had abated and on the abatement of the suit, a valuable right accrued in favour of the petitioners-defendants, which, according to learned counsel, should have not been taken away by construing the question of delay liberally. 5. On the other hand, Shri Anand Sharma, Advocate, learned counsel representing the respondent-plaintiff has strenuously contended that the respondent-plaintiff could have come to know about the death of sole defendant only during the execution proceedings as prior to that she had no occasion to acquire such knowledge. It has also been urged that the mere knowledge of the plaintiff and her attorney qua the death of defendant was not sufficient to have filed the application, they being not aware about the legal intricacies. 6. It has also been urged that the mere knowledge of the plaintiff and her attorney qua the death of defendant was not sufficient to have filed the application, they being not aware about the legal intricacies. 6. Having gone through the record and also the contentions raised on both sides, it is seen that the suit after substitution of legal representatives of deceased defendant Ranjeet Singh vide the order under challenge in this petition is at the stage of recording of evidence. Deceased defendant Ranjeet Singh has expired on 23rd February, 2004 during the pendency of the suit. He was duly represented by a counsel in the suit. After his death, the suit came to be listed from time to time for further proceedings i.e. recording of evidence etc. The trial Court was not informed by either party that defendant Ranjeet Singh is no more. On the other hand he was ordered to be proceeded against exparte. Ultimately, in the suit, exparte decree came to be passed on 23.7.2005. The plaintiff initiated execution proceedings by filing execution petition in the trial Court. 7. The case of the respondent-plaintiff that she came to know about the death of deceased defendant Ranjeet Singh on 28th June, 2006 during the course of execution proceedings seems to be plausible for the reason that it is at this stage there was an occasion for respondent-plaintiff to have come to know about the legal implications of the death of a party in the suit and the consequential steps, which are required to be taken. No doubt, her attorney during the course of proceedings in the application has stated that he was in the knowledge of the death of deceased defendant at the time when the suit was decreed. The statements so made by him cannot be taken to believe that he was also in the knowledge of the procedure to be followed on the death of defendant at that time. His statement Annexure P-8 has also been referred to in this petition and on the basis thereof it is contended that even the plaintiff was also in the knowledge of the death of the defendant in the year 2004 itself. Though he has stated so, however, at the same time it is clarified that his sister (plaintiff) came to know about the death of defendant during the course of execution proceedings. 8. Though he has stated so, however, at the same time it is clarified that his sister (plaintiff) came to know about the death of defendant during the course of execution proceedings. 8. Be it stated that the expiry of time for filing the suit/petition extends a valuable right in favour of opposite party and such right should not be taken away without there being any plausible explanation and sufficient cause to the delay so occurred in filing the same, however, it is well settled that in the matter of setting aside the abatement and substitution of the legal representatives, the law has to be construed liberally. It is held so by Hon’ble Supreme Court in Perumon Bhagvathy Devaswom, Perinadu Village versus Bhargavi Amma (dead) by LRs and Other, (2008) 8 SCC 321 .It is apt to reproduce the operative portion of the judgment, which reads as follows:- “13. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows: (i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ‘sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refilling the appeal after rectification of defects. (v) Want of ‘diligence' or ‘inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” 9. In the case in hand as noted in para supra, the respondent-plaintiff had an occasion to come to know about the death of the defendant during the course of execution proceedings and after coming to know she had taken consequential steps by filing the application decided, vide the order under challenge in this petition. The deceased defendant was duly represented by learned counsel throughout. The provisions contained under Order 22 Rule 10-A of the Code of Civil Procedure casts duty upon the counsel representing the party to a lis to apprise the Court or the opposite party about the death of deceased party. In this case the counsel representing the defendant did not apprise the Court or learned counsel representing the respondent-plaintiff about the death of the deceased defendant. The deceased defendant when not appeared in the Court, the counsel should have enquired about his whereabouts. No such efforts seem to have been made and this has ultimately led in proceeding the defendant against exparte and in passing exparte decree in the suit. The deceased defendant when not appeared in the Court, the counsel should have enquired about his whereabouts. No such efforts seem to have been made and this has ultimately led in proceeding the defendant against exparte and in passing exparte decree in the suit. Therefore, the respondent-plaintiff alone cannot be blamed in this behalf. 10. On behalf of the petitioners-defendants reliance has been placed on the judgment of the apex Court in Balwant Singh (Dead) versus Jagdish Singh & Others, (2010) 8 SCC 685 . It has been held in this judgment that the delay as occurred in filing an application under Order 22 rule 9 CPC can be condoned, if sufficient cause is found to have been shown from the record. Similar is the ratio of the judgment of the apex Court in Lanka Venkateshwarlu (dead) by L.Rs. versus State of Andhra Pradesh & Others, (2011) 4 SCC, 363. 11. There is no quarrel to the legal principles so settled by Hon’ble apex Court in these judgments. However, this Court is of the view that in this case, the respondent-plaintiff has been able to show sufficient cause and as such learned trial Court has not committed any illegality and irregularity in condoning the delay and setting aside the abatement as well as substitution of the legal representatives of deceased defendant Ranjeet Singh as defendants. The order passed by learned trial Court is neither erroneous nor perverse and rather result of correct appreciation of the given facts and circumstances and also the evidence available on record. The same, therefore, calls for no interference by this Court in the exercise of its supervisory powers vested in it under Article 227 of the Constitution of India. The petition, therefore, being devoid of merits, fails and the same is accordingly dismissed. 12. The parties through learned counsel representing them are directed to appear in the trial Court on 27th September, 2014. Record be sent back to the trial Court forthwith so as to reach there well before the date fixed.