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2018 DIGILAW 770 (JHR)

Roja Orain v. Elias Oraon

2018-04-05

ANIL KUMAR CHOUDHARY

body2018
ORDER : Anil Kumar Choudhary, J. Heard the parties. 2. Interlocutory Application No.1390 of 2017 has been filed by the appellants with the prayer for substitution of the legal heirs/representatives of the deceased respondent Nos.3, 6, 7 and 8 and also to implead Ernest Oraon as proforma respondent No.15 after condoning the delay and setting aside the abatement, if any. 3. Interlocutory Application No.1391 of 2017 has been filed by the appellants with a prayer for condoning the delay in filing the petition for substitution of the legal heirs/representatives of the respondent Nos.3, 6, 7 and 8. 4. Learned counsel for the appellants submits that respondent No.3 namely Pascal Oraon died on 06.03.2009 leaving behind his only two legal representatives whose names, parentage and addresses have been mentioned in paragraph -11 of the Interlocutory Application No.1390 of 2017. It is further submitted that Ernest Oraon who is one of the sons of the said respondent No.3 Pascal Oraon but Ernest Oraon has been adopted by the appellant No.1 and his interest is co-terminus with the appellant No.1 hence instead of Ernest Oraon being impleaded as a legal representative of the respondent No.3, it is prayed that he should be made pro-forma respondent No.15. 5. It is further submitted by the learned counsel for the appellants that respondent Nos. 4 to 13 were the pro-forma defendants in the suit filed by the respondent Nos.1, 2 and 3 as plaintiffs in the trial court. 6. This Second Appeal after admission, was dismissed for non-compliance of the peremptory order of this court vide order No.22 dated 10.11.2004 and C.M.P. No.120 of 2005 was filed for restoration of this Second Appeal to file and in the said C.M.P. notices were validly served upon the respondent Nos.6, 7 and 8 in the year 2014, consequent upon the acknowledgment cards of the registered letters having returned after the same were received by one Kristina Ekka sometime between December, 2013 and January, 2014. C.M.P. No.120 of 2005 was allowed in terms of the order dated 05.02.2015 and this Second Appeal was restored to its original file. 7. On 30.01.2017, respondent Nos. 1 and 2 filed a petition under Order XXII, Rule 10-A of the Code of Civil Procedure whereby they intimated that Respondent Nos. 6, 7 & 8 namely Matius Oraon, Angelus Oraon & Yakub Oraon respectively have died leaving behind their legal heirs/representatives. 7. On 30.01.2017, respondent Nos. 1 and 2 filed a petition under Order XXII, Rule 10-A of the Code of Civil Procedure whereby they intimated that Respondent Nos. 6, 7 & 8 namely Matius Oraon, Angelus Oraon & Yakub Oraon respectively have died leaving behind their legal heirs/representatives. It is further submitted by the learned counsel for the appellants that Respondent No.6 namely Matius Oraon died on 02.01.2007 leaving behind his only three legal representatives whose names, parentage and addresses have been mentioned in para-8 of the Interlocutory Application No.1390 of 2017. Respondent No.7 namely Angelus Oraon died on 18.08.2001 leaving behind his only three legal representatives whose names, parentage and addresses have been mentioned in para-9 of the Interlocutory Application No.1390 of 2017 and Respondent No.8 namely Yakub Oraon died in April 2004 leaving behind his only three legal representatives whose names, parentage and addresses have been mentioned in para-10 of the Interlocutory Application No.1390 of 2017. It is further submitted that appellant No.1 is a tribal lady of 80 years of age and she is a rustic lady living in a remote village and is not aware of intricacies of law and requirements of substitution of the legal representatives of a deceased party to a civil proceeding. Hence, it is submitted that the delay in filing the petition for substitution of the legal representatives of the deceased respondent Nos.3, 6, 7 and 8 be condoned and the abatement, if any, be set aside and the legal representatives of the deceased respondent Nos. 3, 6, 7 and 8 be substituted in their place. 8. In support of his contention, learned counsel for the appellants relied upon the judgment of Hon'ble Supreme Court of India in the case of Perumon Bhagvathy Devaswom Perinadu Village v. Bhargavi Amma (Dead) by L.Rs. and Others., (2008) AIRSCW 6025 wherein in paras-8, 9, 10, 11, 12 and 13, the Hon'ble Apex Court has considered and summarized the principle for setting aside the abatement which reads as under:- 8. "The principles applicable in considering applications for setting aside abatement may thus be summarized 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 principles applicable in considering applications for setting aside abatement may thus be summarized 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 bona fides, 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. (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 refiling 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. (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. 9. Let us next also refer to some of the special factors which have a bearing on what constitutes sufficient cause, with reference to delay in applications for setting aside the abatement and bringing the legal representatives on record. 10. The first is whether the appeal is pending in a court where regular and periodical dates of hearing are fixed. There is a significant difference between an appeal pending in a sub-ordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as "adjournment of hearing". In fact, this Court in Ram Charan, (1964) AIR SC 215 inferred that the limitation period for bringing the legal representative might have been fixed as 90 days keeping in mind the adjournment procedure : "The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party's absence." In contrast, when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non- listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent. 11. The second circumstance is whether the counsel for the deceased respondent or the legal representative of the deceased respondent notified the court about the death and whether the court gave notice of such death to the appellant. Rule 10-A of Order 22 casts a duty on the counsel for the respondent to inform the court about the death of such respondent whenever he comes to know about it. When the death is reported and recorded in the order-sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even after the court notifies him about the death of the respondent that may be indication of negligence or want of diligence. 12. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of the death of the respondent. In the absence of any material, the court would accept his claim that he was not aware of the death. 13. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement) : (i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed; (ii) Neither the counsel for the deceased respondent nor the legal representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim". 9. Learned counsel for the appellants further relied upon the judgment of Hon'ble Supreme of Court India in the case of Swami Prasad & Another. v. Lakhan Singh (deceased by L.Rs.) and Others., (2010) AIRSCW 6415 where Hon'ble Apex Court relying upon the case of Perumon Bhagvathy Devaswom Perinadu Village, (2008) AIRSCW 6025, condoned the delay of more than eight years in filing the petition for substitution for legal representatives. 10. Learned counsel for the appellants further relied upon the judgment of Hon'ble Supreme Court of India in the case of Sardar Amarjit Singh Kalra (Dead) by LRs. and Others v. Pramod Gupta (Smt.) (Dead) by LRs. and Others, (2003) 3 SCC 272 : ( AIR 2003 SC 2588 ), wherein the Hon'ble Apex Court has held in paragraph-26 as under:- 26. and Others v. Pramod Gupta (Smt.) (Dead) by LRs. and Others, (2003) 3 SCC 272 : ( AIR 2003 SC 2588 ), wherein the Hon'ble Apex Court has held in paragraph-26 as under:- 26. "Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even de hors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not inter-dependent upon one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of justice would require the remaining other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others as well." 11. It is pertinent to mention here that in connection with the petition for setting aside the abatement, a co-ordinate Bench of this court has recorded the deposition of two witnesses from the side of the appellants and one witness from the side of the respondents. In her the deposition the appellant No.1 who was examined as appellant witness No.2, has stated that one of the sons of Pascal namely Ernest resides with her and after the death of Pascal; Ernest had soon got the knowledge about the death of Pascal. 12. In her the deposition the appellant No.1 who was examined as appellant witness No.2, has stated that one of the sons of Pascal namely Ernest resides with her and after the death of Pascal; Ernest had soon got the knowledge about the death of Pascal. 12. The learned counsel for the respondents on the other hand submitted that the Pairvikar of the appellant who has sworn the affidavit in verification of the contents of these two interlocutory applications namely Basil Toppo s/o late Martin Toppo, has claimed himself to be the brother of appellant No.1 though in fact he is not the own brother of appellant No.1 as is apparent from the parentage given by the said Pairvikar namely Basil Toppo who has disclosed the name of his father as late Martin Toppo though the name of the father of appellant No.1 is Cheto Oraon as is evident from the cause title of the appeal memo. 13. It is further submitted by the learned counsel for the respondents that the appellant No.1 was very much aware about the death of the respondent No.3 almost immediately after his death and having not come to this Court for substitution, there is inordinate delay. Hence, the prayer for substitution of legal heirs/representatives of the deceased respondent Nos.3, 6, 7 and 8 be rejected. 14. It is pertinent to mention here that it is a settled principle of law as has been held by the Hon'ble Supreme Court in the case of Ram Sumiran and Others v. D.D.C. and Others, (1985) AIR SC 606 wherein the Hon'ble Apex Court in the facts and circumstances of that case condoned the delay of six years in filing the petition for substitution of the legal representatives of the deceased-respondent No.5 of that case by observing as under :- "It is true that no steps were taken by the appellants for bringing the legal representatives of the deceased respondent No.5 on record for about six years even though according to respondent No.4 the appellants knew about the death of respondent No.5. But merely because no application was made by the appellants for bringing the legal representatives of the deceased respondent No.5 on record we do not think that in the circumstances of the present case that would be a valid ground for refusing to grant the application of the appellants for setting aside the abatement and bringing the legal representatives of the deceased respondent No.5 on record because the appellants are admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased respondent No.5 should have been granted. We accordingly allow the appeal, set aside the order of the High Court and direct that the abatement, if any, shall be set aside and the legal representatives of deceased respondent No.5 shall be brought on record and the writ petition shall be remanded to the high Court for disposal according to law." (Emphasis given) 15. So far as the contention of the respondents regarding the claim of the Pairvikar as brother of appellant No.1 is concerned, the said Pairvikar has also been examined as witness No.1 of the appellant in connection with petition for substitution of legal representatives and in his cross-examination he has categorically stated that he is related to appellant No.1 namely Roja Orain as brother due to village relationship. 16. It is not disputed that the appellants are old rustic tribal ladies residing in remote village. Considering the facts and circumstances of the case as well as the principle of law as discussed above, this Court is of the considered view that this is a fit case where the delay in filing the petition for substitution of legal representatives of respondent Nos.3, 6, 7 and 8 be condoned and the abatement, if any, be set aside. 17. So far as the contention of the appellants regarding impleadment of Ernest Oraon as pro-forma Respondent No.15 is concerned, in the counter affidavit to this petition for substitution, the contesting respondents have disputed the claim of the adoption of Ernest Oraon by the appellant No.1. 17. So far as the contention of the appellants regarding impleadment of Ernest Oraon as pro-forma Respondent No.15 is concerned, in the counter affidavit to this petition for substitution, the contesting respondents have disputed the claim of the adoption of Ernest Oraon by the appellant No.1. No document has been filed on behalf of the appellant No.1 nor any specific date or the manner by which the alleged adoption of Ernest Oraon was made by the appellant No.1 has been mentioned in this petition. Though the said appellant No.1 has been examined as a witness in connection with adoption matter but she has just stated that Ernest resides with her. But she remained silent about adoption of Ernest by her. 18. Under such circumstances, this Court is of the considered view that as it is not disputed that Ernest Oraon is the son of Pascal Oraon, let him be impleaded as legal representative of Pascal Oraon instead of being impleaded as independent respondent No.15 and the delay in fling the petition be condoned and the abatement, if any, be set aside of course subject to payment of costs. 19. Accordingly, the delay in filing the petition for substitution of legal heirs/representatives of respondent Nos.3, 6, 7 and 8 is condoned and abatement, if any, is set aside and the prayer for substitution of the legal representatives of respondent Nos.3, 6, 7 and 8 is allowed but Ernest Oraon be impleaded as legal representative of Pascal Oraon-respondent No.3 instead of being impleaded as independent pro-forma respondent No.15, subject to payment of costs of Rs. 1,000/-(Rupees one thousand) by the appellants to the respondents through the learned counsel appearing in the appeal for them within two weeks, failing which, this conditional order shall not be given effect to and the Interlocutory Application shall stand rejected. 20. I.A. Nos.1390 of 2017 and 1391 of 2017 are disposed of accordingly. S.A. No.137 of 1998 (R) 21. In case the appellants file the proof of payment of cost of Rs. 1,000/-(Rupees one thousand) to the respondents through the learned counsel appearing for them in the appeal, registry is directed to incorporate the name of the legal representatives of deceased respondent Nos. 3, 6, 7 and 8 whose name and address has been mentioned in paras-11, 8, 9 and 10 respectively of Interlocutory Application No. 1391 of 2017 in place of Respondent Nos. 3, 6, 7 and 8 whose name and address has been mentioned in paras-11, 8, 9 and 10 respectively of Interlocutory Application No. 1391 of 2017 in place of Respondent Nos. 3, 6, 7 and 8 as respondent Nos. 3 (a), (b), 6(a), ( b) and (c), 7(a), (b) and (c), 8(a), (b) and (c) respectively. 22. The appellants are directed to file requisites in both ways for service of notice upon Respondent Nos. 3 (a), (b), 6(a),( b) and (c), 7(a), (b) and( c), 8(a), (b) and (c) within four weeks, failing which this appeal shall stand dismissed against those respondents without further reference to the Bench. Order accordingly. Petition disposed of.