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2018 DIGILAW 559 (ALL)

Gaya Deen v. Mangaru

2018-03-07

VED PRAKASH VAISH

body2018
JUDGMENT : Ved Prakash Vaish, J. There is an application under Order XXII Rule 3 read with Section 151 Code of Civil Procedure, 1908 for substitution of legal representatives of appellant no. 1, namely, Gaya Deen and for substitution of legal representatives of the sole respondent, Mangaroo, bearing Civil Misc. Substitution Application No. 364075 of 2016 and an application for condonation of delay bearing no. 364074 of 2016 in filing the application for substitution. Reply/counter affidavit on behalf of respondent has been filed. 2. There is another application for abatement bearing no. 85602 of 2015 filed on behalf of legal heirs of the deceased-respondent. 3. I have heard learned Counsel for both the parties and perused the material placed on record. 4. Learned Counsel for the appellants/applicants submits that the appellant no. 1, namely, Gaya Deen died on 8.1.2005 and the sole respondent, namely, Mangaroo died in the year 1998 and Jokhan, son and legal representative of sole respondent also died in the year 1991. The appellant no. 1 and the sole respondent left behind the legal heirs mentioned in para 9 of the affidavit which has been filed along with the application for substitution. 5. Learned Counsel for the appellants/applicants submits that the appellant who is the son of the deceased-appellant no. 1 was minor and he was not aware about the pendency of the present second appeal. He also submits that the application for substitution could not be filed as the applicant was not aware about the pendency of the present second appeal, the applicant came to know regarding pendency of the present second appeal in the month of October, 2016 when the legal representative of the sole respondent threatened to dispossess the applicant from the disputed property. 6. The applications have been opposed by learned Counsel for the proposed LRs of the respondent. Learned Counsel for the proposed LRs of the respondent submits that the applicant was fully aware regarding the death of appellant no. 1 and the death of sole respondent who died long back but no effort was made by him to move an application for substitution of the legal representatives. He further pointed out that in the revenue records, the name of deceased-appellant no. 1 and the death of sole respondent who died long back but no effort was made by him to move an application for substitution of the legal representatives. He further pointed out that in the revenue records, the name of deceased-appellant no. 1, namely Gaya Deen was deleted and in his place, the name of his legal representative was recorded vide order dated 28.1.2008 but the applicant did not move any application for substitution of the legal representative. He further submits that the applicant is residing in the same locality and he was well aware about the death of the sole respondent but no application for substitution of the legal representative of the respondent was filed. 7. At this juncture, it is relevant to mention here that the provisions of Order XXII, Rule 3 of Code of Civil Procedure, 1908 provides that where the plaintiff dies, and the right to sue survives, the Court, on an application made in that behalf, shall cause legal representatives of the deceased-plaintiff to be made a party and shall proceed with the suit. 8. Order XXII, Rule 11 of Code of Civil Procedure, 1908 provides that in the application of this order to appeals, the word “plaintiff” shall be held to include “appellant”. Thus, the Order XXII, Rule 3 of Code of Civil Procedure, 1908 makes it obligatory to seek substitution of legal representatives of the deceased-appellants/plaintiffs within the specified period. 9. As regards, the limitation for filing the application for substitution of legal representatives, it may be mentioned that Article 120 of Schedule of Limitation Act, 1963 provides period of 90 days for moving an application for substitution. The Limitation Act, 1963 also provides period of 60 days for setting aside the abatement. 10. In the present case, the appellant no. 1 stated to have expired on 8.1.2005 and the application for substitution of legal representative was filed on 24.11.2016 i.e. after more than 11 years. Similarly, the respondent, namely, Mangaroo stated to have died in the year 1998 and the application for substitution of legal representative was filed on 24.11.2016 i.e. more than 18 years of death of the sole respondent. 11. Similarly, the respondent, namely, Mangaroo stated to have died in the year 1998 and the application for substitution of legal representative was filed on 24.11.2016 i.e. more than 18 years of death of the sole respondent. 11. Submission of learned Counsel for the appellants-applicants is that the applicant, namely, Charan Singh Yadav was minor, does not appeal to reason simply because the age of the applicant who has sworn the affidavit, is stated to be about 29 years and the father of applicant died on 8.1.2005. The affidavit is dated 18.11.2016. The same shows that the deponent, Charan Singh Yadav was major at the time of death of appellant no. 1. 12. It is true that the application under Order XXII, Rule 3 read with Section 151 Code of Civil Procedure, 1908 for substitution of legal representative is accompanied an application under Section 5 of Limitation Act, 1963 for condonation of delay but the application for condonation of delay is not supported by affidavit of the applicant. No sufficient ground for condonation of delay has been shown in the application. 13. The Hon'ble Supreme Court in the case of 'Shanti Devi and others Vs. Kaushaliya Devi' 2015 AIR SCW 6799, dismissed the application for substitution and setting aside abatement which was filed after eleven years. It was also held that the delay cannot be condoned on insufficient grounds and by abusing process of law. 14. Moreover, the sole respondent, namely, Mangaroo is stated to have expired in the year 1998 but the exact date of his death has not been disclosed in the application or in the affidavit filed along with an application for substitution. The application for substitution of legal representative of the deceased-respondent has been filed on 24.11.2016 i.e. after about 18 years. Further, the legal heirs of the respondent moved an application for abatement on 13.3.2015 and it is stated that the respondent died in the month of September, 1999. But the appellant did not move application for substitution for a period of about 20 months. 15. The appellant no. 1 died on 8.1.2005 and an application for substitution has been filed on 24.11.2016 i.e. after more than 11 years. There is inordinate delay in filing the application for substitution of the legal representatives of the appellant no. 1 and the sole respondent. 16. 15. The appellant no. 1 died on 8.1.2005 and an application for substitution has been filed on 24.11.2016 i.e. after more than 11 years. There is inordinate delay in filing the application for substitution of the legal representatives of the appellant no. 1 and the sole respondent. 16. In view of aforesaid facts and circumstance and law laid down in the aforesaid judgment, the application for abatement is allowed. The application for condonation of delay bearing no. 364074 of 2016 is dismissed. The application for substitution of legal representatives bearing no. 364075 of 2016 is also dismissed. The sole respondent, namely, Mangaroo has died and the legal representatives of the deceased-respondent has not been brought on record, therefore, the appeal is dismissed as abated.