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Gulab Bai and ors. Vs. Abirchand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 323 of 1980
Judge
Reported inAIR1982MP29; 1981MPLJ674
ActsCode of Civil Procedure (CPC) , 1908 - Order 22 Rules 4 and 9; ;Limitation Act, 1963 - Sections 5
AppellantGulab Bai and ors.
RespondentAbirchand and anr.
Appellant AdvocateR.D. Jain, Adv.
Respondent AdvocateR.K. Lahoti, Adv.
DispositionRevision dismissed
Cases Referred and Krishanlal v. Beant Singh
Excerpt:
- - the trial court, after evaluating the evidence on both sides came to hold the view that the witnesses, examined on the side of the deceased defendant's lrs were highly interested and unreliable. put the plaintiff or appellant or petitioner can well have another 60 days within which, he can apply to have the abatement, set aside and heirs or lrs substituted, on proving that he was prevented by sufficient cause from continuing the suit. 2 babulal which are both mutually corroborative, it is clear that abirchand had learnt about the death of gendalal for the first time, on 30-9-1976. contention to the contrary that abirchand had attended the funeral of gendalal and other ceremonies is without cogent and reliable proof;.....case, article 120 of the limitation act, 1963 would apply and that limitation would start from the date of death of gendalal and not from the date of knowledge of death. it is further argued that the evidence on record has not been properly appreciated and that the plaintiffs had already full knowledge as to when gendalal died and this knowledge they had, on the very date of his death.5. i have considered the arguments on both sides. vide article 120 of the limitation act, 1963, it is within 90 days from the date of death that the lrs may be substituted in place of the deceased. law is settled that limitation runs from the date of death and not from the date of knowledge of death. (see union of india v. ram charan. air 1964 sc 215, s. r. gaitindo v. j. j. fonseca, air 1976 goa 11 and.....
Judgment:
ORDER

M.D. Bhatt, J.

1. This is the revision, preferred by the legal representatives of the deceased-defendant Gendalal against the trial Court's Order dated 16-1-1979 allowing plaintiffs' application under Order 22, Rule 9, CPC for bringing the LRs. of the deceased defendant on record.

2. Facts not in dispute are briefly these :

The sole defendant Gendalal, during the pendency of eviction suit against him, had died on 3-5-1976. On 29-7-1976, which was the date of the hearing in the suit, defendant Gendalal's counsel pleaded no instructions nor did he apprise the Court or anyone that Gendalal had already died. 30-9-1976 was the next date for the ex parte evidence in the case and the plaintiff No. 1 Abirchand had attended the trial court for ex parte evidence. It was on 20-10-1976 that the plaintiffs filed an application in the Court for bringing the LRs. of the deceased defendant Gendalal on record. Condonation of delay was equally prayed for. Proposed LRs were noticed and they filed their objections to the plaintiffs' application under Order 22, Rule 9, CPC.

3. According to the plaintiffs, they learnt about the death of Gendalal for the first time on 30-9-1976 when Abirchand was returning from the hearing of the Court after giving his evidence. It was then that he, after making inquiries regarding the LRs of the deceased defendant, had filed an application on 20-10-1976 for bringing the LRs on record. According to the plaintiffs they had sufficient cause for not making the application within the prescribed time for substitution of the LRs of the defendant on record since they were ignorant of the defendant's death. The proposed LRs of the deceased defendant vehemently opposed the application contending that the plaintiffs had full knowledge regarding the death of the defendant Gendalal, inasmuch as one of the plaintiffs viz., Abirchand had actually attended the funeral and also, inasmuch as, the plaintiffs were regular visitors of Bajrangarh, where they had in their occupation the first floor of the building in which the suit premises situated on the ground floor were located. It was, hence, urged that the plaintiffs were not entitled to any condonation of delay. The trial Court, after evaluating the evidence on both sides came to hold the view that the witnesses, examined on the side of the deceased defendant's LRs were highly interested and unreliable. Relying on the evidence of the plaintiffs' side, it was held that the plaintiffs were ignorant of the death of Gendalal till 30-9-1976, on which date alone they learnt about the death of Gendalal for the first time. According to the trial Court, there was sufficient cause for the plaintiffs in not applying for substitution of the LRs of the deceased defendant Gendalal; and as such, plaintiffs' application for substitution of the LRs of the deceased defendant was allowed. Hence now, the present revision.

4. The learned counsel for the applicants viz., the proposed LRs of the deceased defendant has urged before me that the legal approach of the trial Court is wrong. It is urged that to the instant case, Article 120 of the Limitation Act, 1963 would apply and that limitation would start from the date of death of Gendalal and not from the date of knowledge of death. It is further argued that the evidence on record has not been properly appreciated and that the plaintiffs had already full knowledge as to when Gendalal died and this knowledge they had, on the very date of his death.

5. I have considered the arguments on both sides. Vide Article 120 of the Limitation Act, 1963, it is within 90 days from the date of death that the LRs may be substituted in place of the deceased. Law is settled that limitation runs from the date of death and not from the date of knowledge of death. (See Union of India v. Ram Charan. AIR 1964 SC 215, S. R. Gaitindo v. J. J. Fonseca, AIR 1976 Goa 11 and Krishanlal v. Beant Singh, AIR 1974 Punj & Har 52).

6. It may be observed that for non-filing of any application for substitution within the aforesaid time, the suit or proceedings would abate. Put the plaintiff or appellant or petitioner can well have another 60 days within which, he can apply to have the abatement, set aside and heirs or LRs substituted, on proving that he was prevented by sufficient cause from continuing the suit. He can have further extension of time under Section 5 of the Limitation Act on proving sufficient cause for condoning the delay in filing the application for setting aside the abatement. In the instant case, applications for bringing LRs on record and so also for setting aside the abatement are on record.

7. Rule 9, Order 22 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 has to state reasons which according to him, led to his not knowing of the death of the defendant within the reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by the LRs of the deceased who had secured a valuable right on the abatement of the suit. The provisions of the Code, no doubt are with a view to advance the cause of justice. It is equally true that there is no question of construing the explanation 'sufficient cause' liberally but all the same, the Court is not expected to be over strict in accepting proof of the suggested cause. The Court has to scrutinize the sufficient cause, and after considering the merits of the evidence, has to come to a decision whether the party has established sufficient cause for his default in applying within time for the impleading of the LRs of the deceased or for setting aside the abatement.

8. In the instant case, the trial Court is found to have fully and properly appreciated the evidence on both sides. On scrutiny of the evidence of deceased defendant's own son D W 1 Shikharchand and that of his witnesses Chandraprakash and Aziz Ahmed, the trial Court is found to be rightly not placing reliance on their evidence as being highly interested and deliberately embellished with ulterior motives. I find myself in agreement with the trial Court's reasonings given in Para 6 of its Order in this regard. It is pertinent to note that even the defendant's counsel, who had appeared in the trial Court on 29-7-1976 after the death of the defendant Gendalal, had no knowledge regarding his death. The case was fixed for ex parte evidence on 30-9-1976. Plaintiff No. 1 Abirchand claims to have learnt of Gendalal's death for the first time on this date only, from Babulal whom he had accidentally met in Bajranggarh after the ex parte hearing in the case. From the evidence of P.W. 1 Abirchand and that of P. W. 2 Babulal which are both mutually corroborative, it is clear that Abirchand had learnt about the death of Gendalal for the first time, on 30-9-1976. Contention to the contrary that Abirchand had attended the funeral of Gendalal and other ceremonies is without cogent and reliable proof; and as such, worth no reliance whatsoever. There is also no cogent proof that the plaintiff or any of them regularly stay on the upper portion above the suit premises situated on the ground floor. Abirchand has deposed that he had no occasion to stay on the vacant upper portion of the house anytime after the death of Gendalal and before the date 30-9-1976. There was obviously sufficient cause for the plaintiffs in not applying for substitution of the LRs of the deceased defendant in due time since they were ignorant about Gendalal's death till 30-9-1976. After this, some time was naturally taken by the plaintiffs for ascertaining the names and addresses of the LRs of the deceased. In these circumstances, the trial Court was right in holding that there was sufficient cause for the plaintiffs in not applying in time for the substitution of the LRs on record. The plaintiffs are equally found to be entitled for condonation of delay on the same ground and because of their bona fides in the matter. I see no reason to interfere with the trial Court's reasonings and findings, based on due appreciation of oral evidence.

9. In the result, thus, the revision, being without any merit, is dismissed and the impugned Order of the Court below is maintained. Applicants to bear the non-applicants-plaintiffs' costs besides bearing their own. Pleader's fee of Rs. 50/- allowed on either side, if certified.


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