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2014 DIGILAW 421 (UTT)

Rashpal Singh v. Kishtopad Gharami

2014-09-24

SERVESH KUMAR GUPTA

body2014
JUDGMENT Servesh Kumar Gupta, J. Having heard learned Counsel for the either parties, it transpires that one of the defendants/respondents Kishtopad Gharami died on 18.11.2011. The application was moved by rest of the defendants/respondents to dispose of this second appeal as against the deceased Kishtopad Gharami treating the same abated because no substitution application had been moved even after the lapse of almost a year of the death of Mr. Kishtopad Gharami. The appellant/plaintiff, having received the copy of this application, moved the substitution application (CLMA 11042 of 2012) within seven days on 10.10.2012 along with the delay condonation application (CLMA 11043 of 2012) under Section 5 of the Limitation Act. In the enclosed affidavit as well as in the delay condonation application, the prayer was made to condone the delay of 267 days on the ground that since the plaintiff/appellant is a village rustic person, so he was quite ignorant about the law and the procedure casting a duty on him to move the application within certain time limit. Learned Counsel for the appellant/plaintiff has argued that in the High Court, at second appeal stage the litigants do not remain in touch every time to attend the Court on the date fixed unlike of the lower courts. So, he too could not gather any information regarding the death of Kishtopad Gharami. This was the cause of delay. In support of his contention, he has relied upon a judgment of Hon’ble Supreme Court, and that reliance has been answered by the learned Counsel of the defendants/respondents on the basis of the Full Bench judgment of the Supreme Court in another case. The sum and substance of all the precedents relied by either of the parties is that although ignorance of law is no excuse, all the same the delay in moving a substitution application may be looked into considering the background of the parties and their surroundings. Learned Counsel of the defendants/respondents has unfolded the history of the litigation which is persisting between the parties for last more than one and half decades regarding the property in question. In brief, that can be summarised as under. Learned Counsel of the defendants/respondents has unfolded the history of the litigation which is persisting between the parties for last more than one and half decades regarding the property in question. In brief, that can be summarised as under. There are three khasra numbers making out the whole property, in question, and out of these three khasras, two are claimed by the defendants/respondents under their title and possession, while the plaintiff, claiming all the khasra numbers under his own title, filed an original suit seeking injunction against the defendants/respondents. Prior to the filing of that original suit, Mr. Rashpal Singh, who is the plaintiff/second appellant before this Court, went before the revenue court under Section 229B of the Zamindari Abolition Act seeking the declaration of his rights/title on those two khasra numbers, whereupon the title is claimed by the respondents/defendants. During the pendency of 229B proceedings, Mr. Kishtopad Gharami died. Yet, Mr. Rashpal Singh went on and got the ex parte decree. It was disclosed by the learned Counsel of the plaintiff that in the proceedings of 229B, although written statement was filed and issues were framed, but later on account of the absence of the opposite parties (who were non other but the present defendants), the revenue court was constrained to pass decree of declaration of title under Section 229B of the Zamindari Abolition Act. No sooner the declaration was made, Mr. Rashpal Singh allegedly executed sale deeds in favour of certain other persons. At the strength of those sale deeds, when the purchasers expressed their intention to take the possession of the land, in question, the kins of Kishtopad Gharami woke up and approached the revenue court for setting aside that ex parte decree. However, the matter was interfered by the High Court in Civil Contempt Petition No. 30 of 2014 (in different perspective), wherein this High Court made an observation that since Kishtopad Gharami had died during the pendency of litigation under Section 229B of the Zamindari Abolition Act, hence any decree awarded by the revenue court against a dead person was a nullity. In the original suit, instituted by Rashpal Singh, as aforementioned, there was a counter-claim raised by the defendants expressing their possession/title over two khasra numbers. The original suit for claim and counter-claim was dismissed by the Trial Judge. Both the parties went in first appeal. First appeal of Mr. In the original suit, instituted by Rashpal Singh, as aforementioned, there was a counter-claim raised by the defendants expressing their possession/title over two khasra numbers. The original suit for claim and counter-claim was dismissed by the Trial Judge. Both the parties went in first appeal. First appeal of Mr. Rashpal Singh was allowed party only on one khasra number, while his claim was rejected on rest of two khasra numbers and for these two khasra numbers, the claim of Kishtopad Gharami and his kins was decreed. Feeling aggrieved, now Rashpal Singh is in this second appeal before this Court challenging only the rejection of his claim over the two other khasra numbers. In the backdrop of the history, as has been stated hereinabove, it was contended by learned Counsel for the defendants/respondents, with the precedent of Hon’ble Apex Court, to consider the ignorance of the real litigants softly should not be interpreted in favour of the appellant/plaintiff because when the appellant/plaintiff is fighting such a vigorous litigation at every level, then he cannot of so ignorant regarding the lapse which he has committed in moving the substitution application. More so, when both the parties, fighting each other, are residing in the close vicinity and there was every reason for Rashpal Singh to remain aware about the death of Mr. Kishtopad Gharami. True, this Court cannot accept that Rashpal Singh could not be aware about the death of Kishtopad Gharami, but as regards the statutory compulsion to move the substitution application within 90 days and then further 60 days for setting aside abatement application are somewhat very technical requirements and a person leading a rural life though attending the courts at different levels inasmuch as High Court level may not be sometime aware about the technicalities deeply. I feel that the substitution application moved by the plaintiff/appellant should be allowed along with the delay condonation application. Accordingly, both these applications (CLMA 11042 of 2012 & CLMA 11043 of 2012) are allowed. Delay is condoned. Substitution is permitted. Let the amended memo of the parties be filed by 10th October 2014. CLMA 11044 of 2012 stands disposed of accordingly. Learned Counsel for the respondents/defendants has fairly conceded that there is no need for the plaintiff/appellant to send notices to the kins of Kishtopad Gharami and they are ready to represent them also as they have already filed Vakalatnama on their behalf. CLMA 11044 of 2012 stands disposed of accordingly. Learned Counsel for the respondents/defendants has fairly conceded that there is no need for the plaintiff/appellant to send notices to the kins of Kishtopad Gharami and they are ready to represent them also as they have already filed Vakalatnama on their behalf. List this matter for final hearing on 15th October 2014 in the daily cause list. Urgency application (IA 3579 of 2014) stands disposed of.