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The State of Uttar Pradesh Vs. Nauratan Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. 1662 of 1965 in First Appeal No. 608 of 1956
Judge
Reported inAIR1968All255
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rule 9
AppellantThe State of Uttar Pradesh
RespondentNauratan Singh
Appellant AdvocateJunior Standing Counsel
Respondent AdvocateKrishna Sahai, Adv.
DispositionApplication rejected
Excerpt:
.....of a deceased - government did not come to know of the death of respondent - until information of death was furnished by the other side - held, sufficient cause not made out for setting aside abatement. - - he died on 21st of july, 1957 and on 18th of march, 1958 an application was presented to the high court on behalf of the appellant under order 22 rule 4 read with section 151 of the civil procedure code stating that ram charan died on 21st of july, 1957 and that the divisional engineer, telegraph ambala cantonment learnt of his death on february 3, 1958. the application for substitution was opposed and was dismissed by the high court on the ground that the union of india had failed to show that it was prevented from any sufficient cause from continuing the appeal. 3...........aside the abatement. it is true that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of respondent, but it does not mean that the mere fact of the appellant's coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement. that is not the law. rule 9 of order xxii of the code requires the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit. the mere allegation about his not coming to know of the death of the opposite party is not sufficient he had to state reasons which according to him, led to his not knowing of of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the court,.....
Judgment:

C.B. Capoor, J.

1. The State of Uttar Pradesh preferred a First appeal against an order made by the Civil Judge, Bijnor, in a reference under Section 18 of the Land Acquisition Act. During the pendency of the appeal Nauratan Singh the sole respondent died on 15th of December, 1960 and on 5th of March, 1965 an application was made by the State of Uttar Pradesh for bringing the legal representatives of the since deceased respondent on record. This application was accompanied by an application under Section 5 of the Limitation Act supported by an affidavit filed by one Sri J. S. Rajput. Land Acquisition Clerk in the Office of the Collector Bijnor. In the aforesaid affidavit it was stated in the main that the fact of death of the since deceased respondent was conveyed for the first time on 26th of February, 1965 when at the time of the hearing of the first appeal a statement was made by the learned counsel appearing for the respondent that the respondent died on 15th of December, 1960. A counter affidavit was filed on behalf of Smt. Rani Prakashwati, the widow of the since deceased respondent that the appellant became aware of the fact of her husband's death soon after his death. It was stated therein that on the death of the aforesaid respondent all firearms of which licence was held by him were surrendered to the Collector, Bijnor and that on an application made by her the licences for the fire arms were granted to her on 31st July, 1961.

It was also stated therein that an application for the mutation of her name was given by her which was allowed by the Tahsildar Nagina district Bijnor and further that after the death of her husband several letters were received by her from the office of the Collector Bijnor some of which were dated 18th of September, 1962 and 20th of June, 1963 which indicated that the Collector, Bijnor and his office were aware of the death of her husband. Subsequent to the filing of the counter affidavit the appellant filed supplementary affidavits by the aforesaid Sri Rajput, by the Land Ac-Acquisition Officer, Bijnor, by Officers who had held the office of the Collector. Bijnor during the period between the date of death of the sole respondent and February, 1965, and by officers under whose signatures the letters relied upon in the counter-affidavit were issued. The main allegations which were made in those affidavits were (1) that the record pertaining to the aforesaid first appeal was consigned to the Record Room on 25th of August, 1957, after proceedings regarding translation and printing of the paper book had been completed, that the aforesaid file was requisitioned from the record room on receipt of a letter from the Standing Counsel, Allahabad, dated 8th of September, 1964 in connection with the settlement of certain accounts in connection with the First Appeal and when the account matter was dealt with the file was again consigned to the record room and was requisitioned again on receipt of a letter from the standing Counsel for the making of enquiry about the alleged death of the respondent; (2) that the Collector. Bijnor and the Tahsildar Nagina were not aware of the pendency of the instant appeal, when the licences for fire arms were granted in favour of the widow of the deceased respondent or her name was mutated in the revenue papers as against the landed property; (3) that the Land Acquisition officer or his office were not aware of the fact of the death of the respondent until letter was received from the office of the Standing Counsel in February 1965; and (4) that the delay in the making of the substitution application was not occasioned by negligence on the part of any of the officers or officials of the Government. A supplementary counter affidavit has also been filed by the aforesaid Rani Prakashvati reiterating the stand taken by her initially.

2. The main question that crops up for decision is as to whether sufficient cause hasbeen shown on behalf of the appellant for the setting aside of abatement. The latest reported case decided by the Supreme Court in which the law on the question under consideration has been laid down is Union of India v. Ram Charan, AIR 1964 SC 215. The facts of that case were that the Union of India presented an appeal on 6th of April, 1955 against a decree for monev passed in favour of Ram Charan who figured as a sole respondent to the appeal. He died on 21st of July, 1957 and on 18th of March, 1958 an application was presented to the High Court on behalf of the appellant under Order 22 Rule 4 read with Section 151 of the Civil Procedure Code stating that Ram Charan died on 21st of July, 1957 and that the Divisional Engineer, Telegraph Ambala Cantonment learnt of his death on February 3, 1958. The application for substitution was opposed and was dismissed by the High Court on the ground that the Union of India had failed to show that it was prevented from any sufficient cause from continuing the appeal. That order was maintained hv the Supreme Court on appeal.

3. While the court considered it futile to lay down precisely as to what considerations would constitute 'sufficient cause' for setting aside the abatement it made the following observations

'But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiff's negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of the mind by the Court in determinine whether the facts and circumstances of a particular case amount to 'sufficient cause' or not. Courts have to use their discretion in the matter soundlv in the interests of justice.'

Head note (b) to the report of the case in AIR 1964 SC 215 (Supra) reads as below:

'There it no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with r view to advance the cause of iustice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the partips and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellantis deprived of his proving his claim on account of his culpable negligence or lack of vigilance, This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinise it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement. It is true that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of respondent, but it does not mean that the mere fact of the appellant's coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement. That is not the law. Rule 9 of Order XXII of the Code requires the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know of the death of the opposite party is not sufficient He had to state reasons which according to him, led to his not knowing of of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secrued a valuable right on the abatement of the suit. It is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party The Court will then decide how for the reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to bring the legal representatives of the deceased respondent earlier on the record'

4. It would thus appear that under the law it is the duty of a plaintiff or an appellant to bring on record the legal representatives of a deceased defendant or respondent, bearing in mind the provisions of the Code and that those provisions are not to be liberally construed While the plaintiff or the appellant does not labour under the duty of making regular enquiries from time to time about the health or existence of the defendant or the respondent he or she has to be vigilant and to see that the suit or the appeal may not abate on account of any negligence or lapse on his or her part

5. On account of India being a welfare State the activities both of the Central and the State Governments have considerably increased since the coming into force of the Constitution and they have become involved in numerous litigationsboth as plaintiff and defendant and in cases in which they figure either as plaintiff or appellant and in particular when such litigation is expected to have a protracted life it is expected of them to be more vigilant than before so that compliance with the provisions of the Code may be made in time. The opposite parties to the litigations initiated by the Government, either as plaintiff or appellant, would be either the residents of villages, town Areas, Notified Areas, Municipal, or Nagar Mahapalika Areas. Some of them would be owners of --and/or possessors of land or house in rural and/or urban areas and holders of licences lor fire arms etc. Some of them might be in service of the Government or under local bodies or in educational institutions etc, and some of them might be in the category of 'have-nots' not owning or possessing any land or house and not being in service. Where the opposite party to a litigation happens to be the owner or possessor of land in rural area or holder of licences for fire arms etc. either in the rural area or in the urban area information about his death may easily be gathered by issuing directions to the Lekhpal, the Tahsildar and the officer who may be entrusted with the work of issuing, renewing and cancelling licences for fire-arms etc. to submit information as to the death of the defendant or respondent as soon as the factum of death comes to their knowledge. Such information may also be gathered from non-official agencies such as the Gaon Samai which, so far as our State at least is concerned, are required to maintain 'kutumb' register, Information about the persons in service may be gathered from their employers. Similarly the gathering of information about the death of opposite parties residing in urban areas who happen to own or possess houses should not be beset with such difficulty. The authorities which are entrusted with the duty of maintaining register of birth and death and of mutating the names on death may be required to furnish the information as to the death as soon as they come to know of the same.

6. So far as the 'have nots' are concerned, the only source which can be tapped for gathering information regarding their death is the person whose duty it is to maintain the register of birth and death and there is a possibility that that person, due to rush of work, may in some cases not be able to furnish the required information in time but that possibility cannot be a justification for dispensing with the tapping of that source If despite the making of effort the Government is not able to gather the information as to the death of a defendant or a respondent in time a case under Section 5 of the Limitation Act may be made out. But a mere allegation that the Government did not come to know of the death of a defendant or respondent--as the cast may be--prior to the information of death furnished by the other side can, in my humble opinion, not constitute a sufficient cause for the setting aside of the abatement.

7. In the instant case Nauratan Singh, the since deceased respondent, was not only owner of land in rural area but was also a holder of licences for more than one fire arm and I venture to submit that if the Collector, Bijnor, had taken the precaution of issuing direction to the Lekhpal of the village, the Tahsildar concerned, the offi-cer-in-charge of issuing, renewing or cancelling the licences for fire arms etc. to report about his death as soon as the said official or officers come to know of the same, the Land Acquisition Office must have been apprised of the required information prior to the expiry of the period of time for bringing on record the legal representatives of a deceased party and for the setting aside of the abatement.

8. On behalf of the appellant capital has been made of the fact that the record of the case maintained in the Land Acquisition Office had been consigned to the Record Room. My attention has not been invited to any rule in pursuance of which the record was consigned to the record room. On behalf of the appellant it has been urged that as the decision of the first appeal in the High Court was anticipated to take a long time the record was consigned to the Record Room. The argument has not impressed me well. The aforesaid anticipation, far from being a ground for the consignment of the record to the Record Room, should have been a reason for keeping the case pending. If the case was not expected to be decided early the possibility that the respondent may pop off during the pendency of the appeal would be there and the record of the case should not have been consigned to the record room and an earnest effort should have been made to gather information about the death of the respondent if the same occurred during the pendency of the appeal. The act of consigning the record to the Record Room was not an act of prudence and as such it cannot be availed of for the condonation of delay in bringing the legal representatives of the since deceased respondent on the record or for the setting aside of abatement.

9. In tine I am of the opinion that in the instant case the appellant was negligent and a sufficient cause has not been made out for the non-filing of an application for bringing on record the legal representatives of the since deceased respondent within the permissible period of time or for the setting aside of the abatement. The application is in consequence rejected and the appeal is declared to have abated.


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