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2014 DIGILAW 453 (RAJ)

Kailash Narain Mahavar v. Sona Bai

2014-02-11

ALOK SHARAM

body2014
JUDGMENT : ” This civil miscellaneous appeal has been filed against the order dated 27-1-2011 passed by the Additional District Judge (Fast Track) Dausa dismissing the appellant-plaintiff ” s (hereinafter ' the plaintiff ” ) application under Section 5 of the Limitation Act seeking condonation of delay in moving an application under Order 22, Rule 4, CPC for bringing on record legal representatives of defendant No.2 Kalu. 2. The facts of the case are that the plaintiff filed a suit in the year 2008 for specific performance of the agreement dated 24-2-2003 as also for declaration as void the relinquishment deed dated 17-5-2003 executed by defendant No.1 Sona bai in favour of defendants Nos. 2 to 11 as also for setting aside the consequent mutation in pursuance there-of. It was stated that the defendant No.1 Sona Bai entered into an agreement on 24-2-2003 with the plaintiff in respect of her 1/18th undivided share in the agricultural land detailed in the suit. But had subsequently executed the relinquishment deed dated 17-5-2003 in favour of the defendants Nos. 2 to 11 to defeat the plaintiff ” s rights. Based on the relinquishment deed dated 17-5-2003 mutation was opened on 5-7-2003. The plaintiff also averred as to his readiness and willingness to fulfill and discharge his obligation under the agreement dated 24-2-2003 at all times but alleged that the defendant Sona Bai had shown no interest in discharging her obligations under the agreement dated 24-2-2003. Hence the suit for specific performance. 3. It appears that during the pendency of the suit, the defendant Kalu died on 19-11-2008. The information with regard to this fact was supplied to counsel for the plaintiff before the trial court on 17-12-2008. The matter was adjourned to 25-3-2009 and thereafter to 15-7-2009. However no steps for bringing on record the legal representatives of defendant No.2 Kalu, a beneficiary of the relinquish deed, challenged before the trial court, were taken by the plaintiff. The information with regard to this fact was supplied to counsel for the plaintiff before the trial court on 17-12-2008. The matter was adjourned to 25-3-2009 and thereafter to 15-7-2009. However no steps for bringing on record the legal representatives of defendant No.2 Kalu, a beneficiary of the relinquish deed, challenged before the trial court, were taken by the plaintiff. In view of the failure of the plaintiff in impleading the legal representatives of the defendant No.2 Kalu in the suit, the defendant No.3 Kalyan moved an application on 5-10-2009 before the trial court stating that in view of failure of the plaintiff in impleading the legal representatives of the defendant No.2 Kalu within 90 days of his death on 19-11-2008 despite the information to his counsel to that effect on 17-12-2008, the suit be dismissed having abated. Nothing was done by the plaintiff either on the information on 17-12-2008 or on filing of the application on 5-10-2009. 4. It appears that thereafter on 22-9-2010 the plaintiff himself appeared before the trial court owing to the Advocates of the trial court having struck work. It is stated that thereupon he came to know about the death of defendant No.2 Kalu and immediately moved an application under Order 22, Rule 4, CPC along with an application under Section 5 of the Limitation Act seeking condonation of delay in moving the application for substitution of legal representatives of defendant No. 2 Kalu. Vide order dated 27-1-2011 the learned trial court found that the delay in moving the application Order 22, Rule 4, CPC for bringing on record legal representatives of Kalu along with an application under Section 5 of the Limitation Act seeking condonation of delay was wholly unexplained and there was no sufficient cause in the facts obtaining in the case to condone the delay in filing the said application. The application under Section 5 of the Limitation Act was dismissed, consequent to which the application under Order 22, Rule 4, CPC also stood dismissed. The suit for specific performance stood abated in the circumstances obtaining. 5. Heard learned counsel for the parties and perused the impugned order dated 27-1-2011 passed by the trial court. 6. The application under Section 5 of the Limitation Act was dismissed, consequent to which the application under Order 22, Rule 4, CPC also stood dismissed. The suit for specific performance stood abated in the circumstances obtaining. 5. Heard learned counsel for the parties and perused the impugned order dated 27-1-2011 passed by the trial court. 6. Learned counsel for the appellant submitted that the learned trial court ought to have allowed in the facts of the case the application under Section 5 of the Limitation Act and so to the application under Order 22, Rule 4, CPC to bring on record the legal representatives of defendant No.2 Kalu. He submitted that even though no formal application under Order 22, Rule 9, CPC was filed by the plaintiff, yet the learned trial court ought to have set aside the abatement of the suit as an implied prayer in the application under Order 22, Rule 4, CPC. Counsel submitted that the advocate engaged by the plaintiff before the trial court had not informed the plaintiff of the death of defendant No.2 Kalu as per information received on 17-12-2008 or even of the application dated 5-10-2009 seeking dismissal of the suit as having abated filed by Kalyan the defendant No.3. It was submitted that the plaintiff came to know of the fact of the death of defendant No.2 Kalu only on 22-9-2010 when he appeared before the trial court owing to a strike by the advocates. Thereupon he had immediately moved an application under Order 22, Rule 4, CPC along with an application under Section 5 of the Limitation Act seeking condonation of delay in the moving of application for substitution of legal representatives of defendant No.2 Kalu following his death. 7. Heard. Considered. 8. In my considered opinion, there is no force in the submission of the learned counsel for the plaintiff. Law of limitation is a statute of repose and based on public policy. No doubt delay in taking remedies can be condoned under Section 5 of the Limitation Act, yet sufficiency of cause for the delay has to be explained to the satisfaction of the court by the party seeking indulgence and exercise of discretion of the court. Law of limitation is a statute of repose and based on public policy. No doubt delay in taking remedies can be condoned under Section 5 of the Limitation Act, yet sufficiency of cause for the delay has to be explained to the satisfaction of the court by the party seeking indulgence and exercise of discretion of the court. The case set up by the plaintiff with regard to his Advocate not informing him of the death of defendant No.2 when information was received by him in court on 17-12-2008 as also in regard to the application dated 5-10-2009 by the defendant No.3 Kalyan is transparently incorrect and the argument is of no avail. For one, the Advocate of a party before the court acts as an agent of the party, and information to his advocate tantamounts to information to the party itself/ himself. Further it is the duty of the litigant to keep himself informed and abreast with the proceedings before the trial court in the case instituted by him. In this case the plaintiff is not an illiterate villager. He appears to be a denizen of a city and well informed as his address in the appeal indicates that he is a resident of Jagatpura, Jaipur. The proposition that an illiterate litigant ought not to be turned away on technical grounds such as limitation, does not apply to the case of the plaintiff. No proof of the plaintiff ” s poverty or illiteracy has been proferred. Aside of aforesaid, the learned trial court has also noted that the advocate of the plaintiff was appearing before it on each and every occasion, and hence the plea of the plaintiff that his advocate was not acting properly and did not inform him of the death of Kalu or the requirement of moving an application for bringing on record his legal representatives could not be countenanced. More so when the plaintiff admits that his advocate required him to appear before the trial court on 22-9-2010 owing to strike of the advocates. If indeed the advocate of plaintiff had been negligent in conducting the plaintiff ” s case he would not have required the plaintiff to appear before the trial court on the day of the advocate ” s strike. From the facts on record, it transpires that the advocate of the plaintiff was acting with responsibility and promptness. If indeed the advocate of plaintiff had been negligent in conducting the plaintiff ” s case he would not have required the plaintiff to appear before the trial court on the day of the advocate ” s strike. From the facts on record, it transpires that the advocate of the plaintiff was acting with responsibility and promptness. The desperate attempt to foist blame on the plaintiff ” s erstwhile advocate before the trial court does not appear to be justified. In the facts obtaining, apart from lack of sufficiency of cause for condoning the delay in moving the application under Order 22, Rule 4, CPC to this court it appears, in the facts of the case, that the ground for condonation of delay agitated by the plaintiff about the lethargy of his erstwhile advocate appears to be palpably false. Besides the aspects detailed above, to establish the advocate ” s negligence no material was placed before the trial court or this court to show that any action was taken by the plaintiff against his advocate. Advocates cannot be allowed to become whipping boys on baseless and unauthenticated allegations which fly in the face of the facts on record and probabilities arising thereon. The plea taken by the plaintiff with regard to negligence on the part of his erstwhile advocate before the trial court was/ is without of any credence. The trial court in the facts of the case rightly disbelieved it and found that no sufficient cause had been shown for condonation of delay in filing the application under Order 22, Rule 4, CPC. 9. There is no error, perversity or misdirection in the impugned order. 10. Consequently, I find no force in the miscellaneous appeal and the same is therefore dismissed. Appeal dismissed.