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2014 DIGILAW 414 (ALL)

Om Prakash v. Chand

2014-02-06

VINOD PRASAD

body2014
JUDGMENT Vinod Prasad,J. This second appeal by appellants/ defendants arises out of judgement and decree dated 19.4 82 passed by Additional Civil Judge , Mathura in Civil Appeal No. 16 of 80, Misri Lal (since dead) and another versus Om Prakash and others, arising out of judgement and decree dated 15.12.79 passed by VIII Additional Munsif, Mathura on O.S.No. 393 of 1974, Misri Lal and another versus Om Prakash and others. By the impugned judgement and decree lower appellate court has partly allowed plaintiff's suit for possession but has dismissed it for permanent prohibitary injunction, which decree of possession has now been challenged in this second appeal by the appellants/ defendants. 2. Plaintiffs Misri lal and Onkar Singh filed O.S.No. 393 of 1974, Misri Lal and another versus Om Prakash and others before VIII Additional Munsif , Mathura for possession over suit property depicted by letters A,B,C,D in the map and for prohibitary injunction restraining appellants/ defendants, Om Prakash, Dina, Gopi, Damodar, and Jagdish from raising any construction and changing the nature of the said property. Plaintiff's case was that under a "Izzazatnama" he had taken 250 Sq.Yards of land, a portion of plot no.550 (old plot No. 1523) of Khata No. 129 situated in village Madhuri Khurd, Pargana and district Mathura, shown by letters A,B,C,D in the plaint map, from it's Zamindar Purshottam Lal, dated 22.11.42, and over the suit land he had constructed a katcha Nohra for rearing his cattle and for using it as a go-down to store Burji, Bitore(cow dung cakes) etc. Plaintiff Misri Lal had also planted a tamarind tree over the suit property and at the time of abolition of zamindari both, Nohra and tree, were existing on suit property and therefore, aforesaid land taken by "Izzazatnama" was settled with the plaintiffs u/s 9 of UPZA & LR Act. As a result of partition between father and sons, some portion of the property went to Onkar Singh plaintiff/ respondent no.2, who was the son of plaintiff no.1, and who since then was in peaceful possession over it. Said property never vested with Gaon Sabha nor Gaon Sabha had allotted it to anybody. In the rainy season, katcha Nohra caved in but the reminiscent of it's walls could be very well located. Said property never vested with Gaon Sabha nor Gaon Sabha had allotted it to anybody. In the rainy season, katcha Nohra caved in but the reminiscent of it's walls could be very well located. In due course of time plaintiffs were made aware that Gaon Sabha has allotted land in question(suit property) to appellants defendants Om Prakash and Dina by carving out plots and they, forcibly with police assistance, had started raising constructions over the suit property. As an emergent step plaintiffs wielded Magistrate/SDM's power u/s 145 Cr.P.C. but his endeavour failed as his application to initiate criminal proceeding under the aforesaid section was rejected by the SDM on 18.11.74, as no apprehension of breach of peace exited in his opinion. It was the above background which necessitated plaintiffs/ respondents to initiate and file O.S.No. 393 of 1974, Misri Lal and another versus Om Prakash and Others, before VIII Additional Munsif, Mathura, seeking reliefs of possession and permanent prohibitary injunction against the appellants/ defendants to save their suit property. 3. Appellants/ defendants contested the suit and their case in their written statements were that plaintiffs/ respondents were never the owners in possession of the suit property, which, in fact, belonged to Gaon Sabha and plaintiffs/ respondents case that they had taken the property from Zamindar and had constructed Nohra over it to rear his live stocks and for storing his burji and Bitora(cow dung cakes) is all false. "Izzazatnama" of the plaintiffs/ respondents is a sham and forged document and does not confer any right of ownership and possession over the suit property on the plaintiffs/ respondents. Suit property was never settled with plaintiff No.1 and since there was partition between plaintiffs no.1 and 2 , therefore plaintiff no. 2 was never in possession over any portion of the suit property. Suit property belonged to Gaon Sabha and defendants were in possession over it since last thirty years and their burji and Bitora(cow dung cakes) exist over it. Suit property is adjacent to the house and nohra of defendants over their chappar also exist. To avod legal complications defendants no. 1&2 had purchased suit property from Gaon Sabha on 30.9.73 and in April'74 , they had constructed their nohra over it and they were in settled possession over property in the suit. Suit property is adjacent to the house and nohra of defendants over their chappar also exist. To avod legal complications defendants no. 1&2 had purchased suit property from Gaon Sabha on 30.9.73 and in April'74 , they had constructed their nohra over it and they were in settled possession over property in the suit. !45 Cr.P.C. proceedings started by the plaintiffs were dropped by SDM after hearing both the sides and plaint map is incorrect and total area of the suit property is 350Sq. yards and not 250Sq. yards as claimed by the plaintiffs. Defendants also pleaded that the suit was barred by section 23 Specific Relief Act and Article 64 of Limitation Act. They also took objection to court fees and their case is that the suit was undervalued and court fees paid was insufficient. 4. Learned VIII Additional Munsif, Mathura framed in all issues and after vetting through the evidences decided all the issues against the plaintiffs and ultimately by judgement order and decree dated 15.12.79, he was pleased to dismiss plaintiff/respondent's suit with cost. 5. Plaintiffs challenged Additional Munsif's aforesaid judgement order and decree dated 15.12.79 was made on First Appeal 16 of 80, Misri Lal and another versus Jagdish and others. Said appeal was heard and decided by learned Additional Civil Judge, Mathura, vide impugned judgement order and decree dated 19.4.82 and lower appellate court was pleased to partly allow/ decree the suit with cost for the relief of possession over suit property marked as A,B,C,D in the plaint map but was pleased to dismiss it for prohibitary permanent injunction. Challenge in this second appeal by the defendants/ appellants is to the aforesaid judgement and decree passed by lower appellate court. 6. To complete the chain of sequence of events, in brief, it is recorded that during pendency of appeal first plaintiff/ appellant in lower appellate court Misri Lal expired and therefore was substituted with his heirs and legal representatives 1/1 Sri Chand,1/2 Smt. Shyam Devi,1/3Smt. Angoori Devi,1/4 Smt. Hardei and 1/5 Smt. Chironja Devi. 7. This second appeal was admitted on 6.5 84 for deciding following substantial question of law: - ''Whether the first appellate court was justified in raising a presumption under section 114 of the Evidence Act on account of nonproduction of registers of the Gaon Sabha and not considering the documents filed by the appellants on the account.?' 8. 7. This second appeal was admitted on 6.5 84 for deciding following substantial question of law: - ''Whether the first appellate court was justified in raising a presumption under section 114 of the Evidence Act on account of nonproduction of registers of the Gaon Sabha and not considering the documents filed by the appellants on the account.?' 8. To avoid prolixity and eschewing not to germane orders passed interregnum, it is mentioned that pending final decision, appellant/defendants no.2,3 and4 died on 4.3.89, 25.4 2000, and 5.2 86 respectively but no substitution application/ applications for bring their heirs/ heir on record has been filed till date. Likewise respondent/plaintiff no.5 Smt Chironja and respondent/ plaintiff no. 6 Onkar Singh died respectively on 15.11.92 and 9.10.2007, but till date no substitution application has been filed to bring their heir/ heirs on record. Sri Chand one of the plaintiffs/ respondent meanwhile filed an abatement application along with his affidavit (application no. 331696/ 2012) on 2.11.2012 after serving it's copy on the counsel for the appellants/ appellants slating aforesaid dates and facts regarding death of plaintiffs/respondents and defendants/ appellants and that application was directed to come up with previous papers. The appeal then came up for orders on 16.12.2013 and on that date following order was passed by this court: - "Shri P.K.Singh, learned counsel for the appellants prays for and is granted one month and no more time to file substitution application.(As per abatement application filed by learned counsel for the respondents on 7.11.2012appellants nos.2,3,4 and respondents nos5 and 6 have died long before) List on 20.1.2014.". 9. Inspite of above order no substitution application has been filed till date and the appeal is listed today and when it was called out in the revised call a request for passing over the appeal for the day was made by learned counsel for the appellants. Since there is no justification much less to say a reasonable one that prayer is refused. 10. Law enunciated in matters of abatement of appeals in the event of non-filing of substitution application/ applications with time allowed by law( ninety days from the date of death) after death of a plaintiff or plaintiffs or defendant or defendants have been elaborately and illucidely enunciated in many a apex court decisions and are now too entrenched and too well settled. It will be appropriate to take stock of some of those decisions. It will be appropriate to take stock of some of those decisions. In the case of Mithailal Dal Singar Singh versus Annabai Devaram Kini : (2003) 10 SCC 691 apex court has gone to the extent of holding that provisions of abatement has to be construed strictly and in fact the law does not mandate passing of a formal order of abatement, which is not at all necessary if no substitution application is filed within the time allowed by law. It has been laid down in that decision as under: - "7. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for." 11. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for." 11. In Balwant Singh (Dead) v. Jagdish Singh and Ors.: AIR 2010 SC 3043 Supreme court has examined question of abatement succinctly and in detail and has held that an unreasonable delay, if not explained properly and convincingly, should not be condoned by adopting a too liberal approach. It has been observed in the aforesaid decision: - "It is a settled position of law that a suit or an appeal abates automatically if the legal representatives, particularly of the sole plaintiff or appellant, are not brought on record within the stipulated period. Rule 1 of Order 22, CPC mandates that the death of a defendant or a plaintiff shall not cause the suit to abate if the right to sue survives. In other words, in the event of death of a party, where the right to sue does not survive, the suit shall abate and come to an end. In the event the right to sue survives, the concerned party is expected to take steps in accordance with provisions of this Order. Order 22, Rule 3, CPC, therefore, prescribes that where the plaintiff dies and the right to sue has survived, then an application could be filed to bring the legal representatives of the deceased plaintiffppellant on record within the time specified (90 days). Once the proceedings have abated, the suit essentially has to come to an end, except when the abatement is set aside and the legal representatives are ordered to be brought on record by the Court of Competent jurisdiction in terms of Order 22, Rule 9 (3), CPC. Order 22, Rule 9 (3) of the CPC contemplates that provisions of Section 5 of the Indian Limitation Act, 1963 shall apply to an application filed under sub-rule 2 of Rule 9 of Order 22, CPC. In other words, an application for setting aside the abatement has to be treated at par and the principles enunciated for condonation of delay under Section 5 of the Limitation Act are to apply pan materia. In other words, an application for setting aside the abatement has to be treated at par and the principles enunciated for condonation of delay under Section 5 of the Limitation Act are to apply pan materia. Section 3 of the Limitation Act requires that suits or proceedings instituted after the prescinded period of limitation shall be dismissed. However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows 'sufficient cause' for not preferring the application within the prescribed time. The expression 'sufficient cause' commonly appears in the provisions of Order 22, Rule 9 (2), C.PC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be decided on similar grounds. The decision of such an application has to be guided by similar precepts. It will be appropriate for us to trace the law enunciated by this Court while referring, both the provisions of Order 22, Rule 9, CPC and Section 5 of the Limitation Act. In the case of Union of India v. Ram Charan, [ AIR 1964 SC 215 ], a three Judge Bench of this Court was concerned with an application filed under Order 22, Rule 9, CPC for bringing the legal representatives of the deceased on record beyond the 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. The Court applied the principle of 'reasonable time' even to such situations. While stating that the Court was not to invoke its inherent powers under Section 151, C.P.C. it expressed the view that the provisions of Order 22, Rule 9, CPC should be applied. The Court held as under : "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. The Court held as under : "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. 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. xxx xxx xxx 10....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. 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, [ AIR 1962 SC 89 ] and Jhanda Singh v. Gurmukh Singh, C.A. No. 344 of 1956, D/-10-4-1962 (SC). 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, [ AIR 1962 SC 89 ] and Jhanda Singh v. Gurmukh Singh, C.A. No. 344 of 1956, D/-10-4-1962 (SC). Any way, that question does not arise in this case as the sole respondent had died. XXX XXX XXX 12....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. 171 for an application to set aside the abatement of the suit, but also made the provisions of Section 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. It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause' for setting aside the abatement or for the plaintiff's 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." 8. 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." 8. In the case of P.K. Ramachandran v. State of Kerala, [ (1997) 7 SCC 556 ] : ( AIR 1998 SC 2276 : 1998 AIR SCW 2177 ) where there was delay of 565 days in filing the first appeal by the State, and the High Court had observed, "taking into consideration the averments contained in the affidavit filed in support of the petition to condone the delay, we are inclined to allow the petition". While setting aside this order, this Court found that the explanation rendered for condonation of delay was neither reasonable nor satisfactory and held as under: "3. It would be noticed from a perusal of the impugned order that the court has not recorded any satisfaction that the explanation for delay was either reasonable or satisfactory, which is an essential prerequisite to condonation of delay. 4. That apart, we find that in the application filed by the respondent seeking condonation of delay, the thrust in explaining the delay after 12.5.1995 is: ".....at that time the Advocate General's office was fed up with so many arbitration matters (sic) equally important to this case were pending for consideration as per the directions of the Advocate General on 2.9.1995." 5. This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. In the reply filed to the application seeking condonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub-Judge, Kollam on 30-10-1993, the scope for filing of the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and the Advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but later on, despite the opinion referred to above, the appeal was filed as late as on 18.1.1996 without disclosing why it was being filed. The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent-State for condonation of the inordinate delay of 565 days. 6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time. No costs." 9. In the case of Mithailal Dalsangar Singh ( AIR 2003 SC 4244 : 2003 AIR SCW 4878 ) (supra), a Bench of this Court had occasion to deal with the provisions of Order 22, Rule 9, CPC and while enunciating the principles controlling the application of and exercising of discretion under these provisions, the Court reiterated the principle that the abatement is automatic and not even a specific order is required to be passed by the Court in that behalf. It would be useful to reproduce paragraph 8 of the said judgment which has a bearing on the matter in controversy before us : "7. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for." 10. Another Bench of this Court in a recent judgment of Katari Suryanarayana v. Koppisetti Subba Rao, [ AIR 2009 SC 2907 ] : ( 2009 AIR SCW 4640 ) again had an occasion to construe the ambit, scope and application of the expression 'sufficient cause'. The application for setting aside the abatement and bringing the legal heirs of the deceased on record was filed in that case after a considerable delay. The explanation rendered regarding the delay of 2381 days in filing the application for condonation of delay and 2601 days in bringing the legal representatives on record was not found to be satisfactory. Declining the application for condonation of delay, the Court, while discussing the case of Perumon Bhagvathy Devaswom v. Bhargavi Amma [ (2008) 8 SCC 321 ] : (AIR 2009 SC (Supp) 886 : 2008 AIR SCW 6025) in its para 9 held as under : 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 bona fides, deliberate inaction or negligence on the part of the appellant." 12. Examining the facts of present appeal within the scope and ambit of above expounded law it becomes more that evident that three of the defendants appellants died years ago. Appellant/defendant no. 4 Damodar died on 5.2.86, Appellant/ defendant no. 2 Deen dayal @ Dina died on 4.3.89 and appellant/ defendant no. Gopi died on 25.4.2000. No Substitution application till date has been filed by the appellants inspite of seeking time of one month from this court on 16.12.2013. In such a fact situation there is absolutely no evidence on record to show that after abatement right to sue will still survive as against remaining plaintiffs and defendants and hence Order XXII Rule 1 has no application on the facts of the appeal. Appellants/ defendants are very callous and careless in pursuing their appeals and they do not seems to be any longer interested in doing so. Delay of 26,23 and 13 years in not bringing substitution applications are so enormous that by no stretch of imagination and carving out any hypothesis , the same can be condoned consequently the appeal deserves to be abated entirely. 13. Resultantly this second appeal stands abated under Order XXII Rule 3(2) and Order XXII Rule 4(3) CPC and is dismissed as such.