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2017 DIGILAW 1035 (JK)

Shahid Hussain v. Mohd. Ramzan

2017-11-27

ALOK ARADHE

body2017
JUDGMENT : 1. With consent of learned counsel for the parties, the matter is heard finally. In this petition under Section 104 of the Constitution of the State of Jammu and Kashmir, the petitioners have assailed validity of the order dated 28.06.2016 passed by District Judge Kishtwar by which order passed by the Trial Court dated 20.12.2012 has been upheld by which applications preferred by the petitioners under Order 22 Rule 4 as well as under Order 22 Rule 9 were dismissed. 2. Facts giving rise to the filing of this writ petition briefly stated are that petitioners filed a suit on or about 27.04.2004 seeking a declaration and permanent injunction. The claim in the suit was based on the ground that the petitioners are in possession of the land on the basis of family settlement admeasuring 2 kanals and 13 marlas falling under Khasra No.3405-min situated in Kishtwar. It was further pleaded that Sale Deed dated 12.02.2004 executed in respect of three marlas by defendant No.1 in favour of defendant No.2 and defendant No.3 (Ghulam Mohd since deceased) is illegal and is not binding on the petitioners. The petitioners also sought relief of permanent injunction. The defendants filed written statement. During the pendency of the suit, the plaintiff No.2 died and his LRs were brought on record. 3. On 16.12.2010, the petitioner No.1 appeared in the witness box and during his cross examination, he admitted the factum of death of defendant No.3 and further admitted that he has left behind four/five sons and a widow. Thereafter, the petitioner No.1 consulted his counsel and after his examination as witness, who advised the petitioner to file an application seeking substitution of LRs of defendant No.3. The petitioner filed three applications on 31.12.2010, one for substitution of LRs, and another one was for setting aside of the abatement of the suit and the third application was filed for condonation of delay in filing the said applications. On 31.01.2011, counsel for the petitioners was absent but the counsel for the opposite party was present. The trial Court in the absence of the counsel for the petitioners and after hearing counsel for the opposite party, held that application for substitution has not been filed within a period of six months, therefore, the suit as against the defendant No.3 is abated and the suit was dismissed. Being aggrieved, the petitioners filed an appeal. The trial Court in the absence of the counsel for the petitioners and after hearing counsel for the opposite party, held that application for substitution has not been filed within a period of six months, therefore, the suit as against the defendant No.3 is abated and the suit was dismissed. Being aggrieved, the petitioners filed an appeal. By the aforesaid order, the lower appellate Court has upheld the order passed by the Trial Court and held that plaintiff has failed to make out any sufficient cause for condonation of delay. 4. Learned counsel for the petitioners submitted that petitioners had filed two suits seeking a relief of pre-emption. During the pendency of the suit, the defendant No.3 expired and in the aforesaid two civil suits, LRs of defendant No.3 were brought on record. It is further submitted that petitioners had instructed his counsel to file an application for substitution in the instant suit as well as out of which this petition arises. However, no application was filed. It is further submitted that the Trial Court did not hear the counsel for the petitioners and dismissed the application preferred by the petitioners and the lower appellate Court has upheld the same. It is further submitted that Courts below ought to have appreciated that for the fault on the part of the counsel, the petitioners could not have been penalized. In support of his submission, learned counsel for the petitioners has referred to decision of the Supreme Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (dead) By LRs & Ors, 2008 (8) SCC 321 . 5. On the other hand, learned Senior Counsel for respondents submitted that third suit was filed by way of counter blast and no inference can be drawn that the counsel has not acted diligently as the petitioners continued with the same counsel. It is further submitted that admittedly the petitioners had knowledge about the death of defendant No.3 and after a period of five years, the application for substitution was filed and the limitation for substitution starts from the date of the death. It is further submitted that admittedly the petitioners had knowledge about the death of defendant No.3 and after a period of five years, the application for substitution was filed and the limitation for substitution starts from the date of the death. In support of his submissions, learned senior counsel for the respondents has referred to the decisions of the Supreme Court in the cases of Union of India vs. Ram Charan & Ors, 1964 AIR 215, decision of the Supreme Court in the case of Katari Suryanarayana and Ors vs. Koppisetti Subba Rao & Ors in Civil Appeal No.2240 of 2009 dated 08.04.2009 and decision of Rajasthan High Court in the case of Lal Mohd. V. Mst. Haroon, AIR 1995 Raj 42 . 6. I have considered the submissions made by learned counsel for the parties and have perused the record. In Union of India vs. Ram Charan & Ors, 1964 AIR 215, it has been held by the Supreme Court that the provisions of the Code have been enacted with a view to advance the cause of justice and in considering the question whether a party is accepting sufficient cause, the Court should not be over strict. In Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 , it has been held that the expression sufficient cause which gives the Court discretion should receive liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to a party. In N. Balakrishnan v. M. Krishnamurthy, 1998 (7) SCC 123 , the Supreme Court has held that condonation of delay is a matter of discretion of the Court and the length of delay is no matter, acceptability of the explanation is the only criteria. Sometimes, delay of shortest range may be un-condonable 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. It was further held that the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The rules of limitation are not meant to destroy the rights of the parties. It was further held that the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The rules of limitation are not meant to destroy the rights of the parties. In Ram Nath Sao v. Gobardhan Sao, 2002 (3) SCC 195 , the Supreme Court has held that the expression “sufficient cause” within the meaning of Section 5 of the Limitation Act or under Order 22 Rule 9 of the Code or any other similar provision should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. It was further held that acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to a defaulting party. The Supreme Court summarized the principles with regard to condonation of delay and setting aside of the abatement in the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (dead) By LRs & Ors, 2008 (8) SCC 321 held 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. 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. 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 re-filing 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. 7. In the backdrop of the aforesaid well legal propositions, facts of the case may be seen. In the instant case, the plaintiffs/petitioners in support of their case examined three witnesses. Admittedly, the petitioners are rustic and illiterate villagers. Admittedly, the plaintiffs had knowledge about of death of defendant No.3. He had informed his counsel about the death of defendant No.3. Thereupon the counsel for plaintiffs/petitioners made an application for substitution in two civil suits. However, for the reasons best known to him counsel for the petitioners did not make any application in the third suit i.e. the suit out of which this present proceeding arises. He had informed his counsel about the death of defendant No.3. Thereupon the counsel for plaintiffs/petitioners made an application for substitution in two civil suits. However, for the reasons best known to him counsel for the petitioners did not make any application in the third suit i.e. the suit out of which this present proceeding arises. In other words, no negligence or inaction on the part of petitioners can be attributed as the petitioners had informed his counsel about the factum of death of defendant No.3 and it was the duty of the counsel of defendant No.3 to take action for substitution of LRs of defendant No.3 in the third suit as well. However, for some unexplainable reason, the application for substitution was not filed in the third suit. 8. It is trite law that for inadvertence on the part of counsel, the party cannot be penalized. (See : AIR 1981 SC 1400 and AIR 2009 SC 514 ). In the instant case, the petitioners had acted with due diligence and it cannot be said that they were either negligent or did not act with bona fide in prosecuting the proceeding. Therefore, Courts below have taken hyper-technical view of the matter and have failed to appreciate that the cause of substantial justice deserves to be preferred over the technicalities and the rules of procedure are not meant to defeat the justice. The impugned orders suffer from the error apparent on the face of record. The impugned orders dated 28.06.2016 and 20.12.2012 are hereby quashed. The applications preferred by the petitioners under Order 22 Rule 4, under Order 22 Rule 9 as well as application under Section 5 of the Limitation Act are hereby allowed and the Trial Court is directed to proceed with the trial expeditiously in accordance with law. Accordingly, the petition is disposed of.