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2017 DIGILAW 374 (RAJ)

Majid v. Hassu

2017-02-02

PRASHANT KUMAR AGARWAL

body2017
ORDER : Prashant Kumar Agarwal, J. 1. This order will dispose of application under Order 22 Rule 4 read with Rule 9 read with Section 151 CPC filed by the applicant-appellant with a prayer to set aside the order of abatement dated 6.3.2012 passed by this Court in S.B. Civil First Appeal No. 421/2009 and also application under Section 5 of the Limitation Act with prayer to condone the delay caused in filing the aforesaid application. 2. Brief relevant facts for the disposal of these applications are that Civil Suit No. 209/2007 filed by the plaintiff-appellant for specific performance of agreement to sell was dismissed by Additional District Judge (Fast Track) Tijara (District Alwar) vide judgment and decree dated 7.7.2009 which was challenged by the appellant by way of Civil First Appeal No. 421/2009 and the said appeal was admitted by this Court vide order dated 22.7.2009 and notice was ordered to be issued to respondent-defendant. The notice sent for service upon the respondent was received back with a report by the process server that the respondent has died a month ago and a note of aforesaid fact was recorded by the office vide order-sheet dated 11.11.2009 and learned counsel for the appellant was asked to take necessary steps in this regard. As necessary steps were not taken by the appellant to bring the legal representatives of the deceased sole respondent, vide order dated 6.3.2012 the appeal was ordered to have been automatically abated as the prescribed period of 90 days has already been expired. It is to be noted that none was present on behalf of the appellant on 6.3.2012. Aforesaid application under Order 22 Rule 4 read with Rule 9 CPC alongwith affidavit of appellant was filed by the appellant on 17.8.2012 with a prayer to recall the order dated 6.3.2012 and re-admit the appeal to its original number. It is to be noted that alongwith this application, application under Section 5 of the Limitation Act was not filed and it was filed on 3.8.2015 alongwith affidavit. Notices were issued to the legal representatives of the deceased-respondent who appeared through their counsel but reply to the aforesaid applications was not filed. 3. In the facts and circumstances of the case, it is to be considered whether these applications can be allowed and the order dated 6.3.2012 is to be set aside and recalled. 4. Notices were issued to the legal representatives of the deceased-respondent who appeared through their counsel but reply to the aforesaid applications was not filed. 3. In the facts and circumstances of the case, it is to be considered whether these applications can be allowed and the order dated 6.3.2012 is to be set aside and recalled. 4. It was submitted by learned counsel for the appellant that fact of death of respondent was not in the knowledge of appellant and when on 8.8.2012 he telephonically contacted his counsel about proceedings to be taken in the appeal, next day it was informed to him by his counsel's clerk that the appeal has been abated vide order dated 6.3.2012 as necessary steps were not taken to bring legal representatives of the respondent who is reported to have expired during pendency of the appeal. It was further submitted that on such intimation being given by the clerk of his counsel, appellant made inquiry about legal heirs of the respondent and application under Order 22 Rule 4 read with Rule 9 CPC was filed alongwith the copy of voter list and death certificate of respondent without any unreasonable delay on 7.8.2012. It was also submitted that as the aforesaid application was filed after expiry of the prescribed period, application under Section 5 of the Limitation Act alongwith affidavit with a prayer to condone the delay caused was filed on 3.8.2015 as the same could not bonafidely be filed alongwith the aforesaid application. It was submitted by the learned counsel for the appellant that the delay caused in filing the application to bring legal representatives of the deceased-respondent was not intentionally and it was bonafide by the reason that appellant did not come to know about death of respondent in time and after getting information from his counsel it took him some time to obtain his death certificate and as soon as it was obtained the aforesaid application was filed without any unreasonable delay. It was further submitted that it is well settled legal position that the technicalities should not come in the way while deciding application for condonation of delay and if sufficient cause is shown to the satisfaction of the Court the delay deserves to be condoned and the Court should decide the matter on merits in order to do substantial justice and the technical considerations should be given on a go-bye. It was further submitted that it will be in the interest of justice that the delay caused in filing the application be condoned and the first appeal filed by the appellant be restored to its original number and heard and decided on merit. 5. In support of his submissions, learned counsel for the appellant replied upon the case of Manoharan v. Sivarajan & Ors. reported in (2014) 4 SCC 163 . 6. On the other hand, learned counsel for the legal representatives of the deceased-respondent submitted that appellant and respondent reside in the same village and appellant from the date of death of respondent-Shri Hassu was in the knowledge of his death but necessary steps were not taken by him to bring his legal representatives on record although the fact of death of respondent was reported by the process server on the notice sent by this Court for service upon the respondent and even the office vide order-sheet dated 11.11.2009 recorded the fact so made by the process server and asking the counsel for the appellant to take necessary steps in this regard. It was further submitted that it has wrongly been stated by the appellant that fact of death of respondent came into his knowledge when he telephonically contacted his counsel on 8.8.2012 about the status of his appeal and it was informed by counsel's clerk that the appeal has been abated vide order dated 6.3.2012 by the reason that necessary steps have not been taken to bring legal representatives of the deceased-respondent. It was also submitted that the appellant in the present case is guilty of inaction on his part to file an appropriate application for setting aside the abatement within the prescribed period and, therefore, the application cannot be allowed merely by asking as it is well settled legal position that in such cases discretion conferred upon the Court cannot be exercised in favour of a party who is guilty of inaction. 7. 7. Sub-rule (1) of Rule 4 of Order 22 CPC provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to survives, the court, on an application made in that behalf shall cause the legal representatives of the defendant to be made party and shall proceed with the suit. It is not in dispute that as per Article 120 of Limitation Act such application is required to be filed within a period of 90 days from the date of death of the defendant. Sub-rule (3) provides that where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. It is well settled legal position that if application required under Sub-rule (1) is not filed within the prescribed period of 90 days, the suit shall automatically abate against the deceased-defendant and no specific order is required to be passed by the Court. In the present case, vide order dated 6.3.2012 it was ordered that the appeal stands automatically abated as the prescribed period of 90 days has elapsed. It is not disputed that as per Rule 11 of Order 22 CPC, provisions of Rules 4 and 9 are also applicable to appeals and if during the pendency of an appeal, respondent dies application for substitution of legal representatives is required to be filed within the prescribed period of 90 days from the date of death of the respondent. 8. Sub-rule (2) of Rule 9 of Order 22 provides that the plaintiff or the person claiming to be the legal representative of a deceased plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. Sub-rule (3) thereof provides that the provisions of Section 5 of the Limitation Act shall apply to applications under Sub-rule (2). 9. Sub-rule (3) thereof provides that the provisions of Section 5 of the Limitation Act shall apply to applications under Sub-rule (2). 9. It is not in dispute that as per Article 121 of Limitation Act, application under sub-rule (2) of Rule 9 is required to be filed within a period of sixty days from the date on which the suit or appeal stood abated and if such an application is not filed within the prescribed period of sixty days, an application under Section 5 of the Limitation Act can be filed with a prayer to condone the delay after showing sufficient cause to the satisfaction of the Court. 10. Sub-rule (5) of Rule 4 of Order 22 CPC provides that where the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act and the suit has in consequence abated and the plaintiff applies after the expiry of the period specified therefore in the Limitation Act for setting aside the abatement and also for admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall in considering the application under the said Section 5 have due regard to the fact of such ignorance, if proved. 11. It is thus clear that ignorance of plaintiff or appellant as the case may be about death of the defendant or respondent as the case may be is a sufficient ground, if proved, for setting aside the abatement as well as for admission of application filed under Section 5 of the Limitation Act to condone the delay caused in filing such an application. In the present case, the ground taken by the appellant is that he was ignorant about the death of the respondent-Shri Hassu. It is to be seen whether appellant has been able to prove to the satisfaction of the Court that he was actually ignorant about death of respondent. In the present case, the ground taken by the appellant is that he was ignorant about the death of the respondent-Shri Hassu. It is to be seen whether appellant has been able to prove to the satisfaction of the Court that he was actually ignorant about death of respondent. It is not in dispute that both appellant and respondent are residents of the same village and appellant filed suit for specific performance of agreement to sell allegedly executed by the respondent in respect of land in dispute in his favour. As already stated, appeal was admitted by this Court vide order dated 22.7.2009 and notice was ordered to be issued to the respondent and on the notice so issued it was reported by the process server that the respondent has expired. The office asked the counsel for the appellant vide order-sheet dated 11.11.2009 to take necessary steps in this regard. It is not the case of the appellant that any time after 11.11.2009 he was informed by his counsel that it has been reported that respondent has expired and his legal representatives are required to be taken on record so that the appeal can be continued against them. As per the averments made in the application the appellant after expiry of about three years telephonically contacted his counsel on 8.8.2012 about present status of the appeal upon which his counsel's clerk on next day intimated that the appeal has been ordered to be abated on 6.3.2012 and the appellant informed the clerk that he is ignorant about the death of respondent. As per the copy of death certificate filed alongwith the application respondent died on 3.9.2009 and the fact of his death was registered by Gram Panchayat, Palpur (District Alwar) on 7.9.2009 and the copy of death certificate was issued on 17.7.2012. In the opinion of this Court when copy of death certificate was issued to appellant on 17.7.2012, it is incorrect on the part of the appellant to claim that he was ignorant about the death of respondent till 9.8.2012. 12. In the opinion of this Court when copy of death certificate was issued to appellant on 17.7.2012, it is incorrect on the part of the appellant to claim that he was ignorant about the death of respondent till 9.8.2012. 12. The application under Order 22 Rule 4 read with Rule 9 CPC was filed by the petitioner on 17.8.2012 and it is clear that a false plea was taken by him that till 9.8.2012 he was ignorant about death of respondent only to show his bonafides that as soon as he was intimated about abatement of the appeal he without any delay immediately collected information about date of death and legal representatives of the deceased-respondent and filed the application. 13. The question of sufficient cause for setting aside abatement of suit and condonation of delay in bringing legal representatives on record under Order 22 Rule 9 (2) and (3) CPC was considered by Hon'ble Supreme Court in detail in the case of Balwant Singh (Dead) v. Jagdish Singh & Ors. reported in (2010) 8 SCC 685 . It was held that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. The Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If the Court should take a very liberal approach and interpret these provisions in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. 14. If the Court should take a very liberal approach and interpret these provisions in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. 14. It was further held that liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bonafide is imputable. The expression 'sufficient cause' implies the presence of legal and adequate reasons. The word 'sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. 15. It was also held that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of its acting vigilantly. 16. It was further held that the explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. Delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. 17. If in the light of aforesaid legal principle, the merits of the present application is considered, it is noticed that except for a vague averment that the appellant came into knowledge of the death of the respondent when he was intimated about order dated 6.3.2012 by his counsel's clerk, there is no other justifiable reason stated in the application. I have already said that the application does not contain correct and true facts as the copy of death certificate of respondent filed alongwith the application shows that it was issued on 17.7.2012. This fact alone shows that the fact of death of respondent was definitely in the knowledge of the appellant atleast some time before 17.7.2012 and it was also in his knowledge that steps are required to be taken to bring legal representatives of the deceased-respondent and copy of death certificate is required for that purpose but even then deliberately wrong averments were made in the application that the appellant telephonically contacted his counsel on 8.8.2012 inquiring about status of his appeal. It has not been explained by appellant if till 9.8.2012 he was not aware of death of respondent, native of the same village, for what purpose death certificate of respondent was obtained by him on 17.7.2012. Apart from this, it is also clear that appellant was negligent to pursue his appeal as he did not inquire about its status (after filing it in the year 2009) till 8.8.2012 as claimed by him when he telephonically inquired about its present status. It is also to be noted that although the application for setting aside of abatement was hopelessly barred by limitation as it was filed long after expiry of 150 days but even then application under Section 5 of the Limitation Act was not filed alongwith and it was filed only on 3.8.2015 after seeking time from the Court vide order dated 22.7.2015. Thus, want of bonafides is imputable to the appellant. There is no reason or sufficient cause shown as to what steps were taken by the appellant after respondent expired on 3.9.2009 and why immediate steps were not taken by him. It is abnormal conduct on the part of the appellant so as not to take appropriate steps within the reasonable time. The cumulative effect of all these circumstances is that the appellant has miserably failed in showing any sufficient cause for condonation of delay in filing the applications in question. 18. Consequently, both the applications being devoid of any merit are, hereby, dismissed.