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Shakuntala Devi Vs. Kashmir Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Case No. 143-D of 1958
Judge
Reported inAIR1961P& H184
ActsLimitation Act, 1908 - Sections 5; Code of Civil Procedure (CPC) - Sections 115 - Order 22, Rule 3; Hindu Law
AppellantShakuntala Devi
RespondentKashmir Chand and ors.
Appellant Advocate Yogeshwar Dayal and; I.D. Garg, Advs.
Respondent Advocate K.K. Raizada and; B.D. Gupta, Advs.
DispositionPetition allowed
Cases ReferredSubramania Iyer v. Venkataramier
Excerpt:
.....been married to her father and, therefore, could legitimately and lawfully claim to be the legal representative of the deceased. the discretion given by this provision of law is very wide though it has to be exercised judicially and on well recognised principles. 10. it was also argued that party claiming indulgence of section 5 of the limitation act must explain each individual day's delay beyond the period of limitation prescribed by law and that in the instant case shrimati shakuntla devi had failed to do so. in cases like the present, where shrimati jasodha's application claiming herself to be the legal representative was still pending adjudication and the petitioner was obviously under the impression (which in my view can by no means be characterised to be anything but bona..........been presented some time in may, 19,56. on hazari lal's death, shrimati jasodha, claiming to be a legal representative of the deceased, applied on 6th july, 1956, for being substituted in place of the plaintiff and for restoring the suit. her application was dismissed on 7th june, 1957, on the finding that she was not a legal representative of the deceased.3. while as yet shrimati jasodha's application was pending, shrimati shakuntala devi, the present petitioner before me, filed an application in march, 1957, under order xxii rules 3 and 9 and under section 151 of the code of civil procedure for being substituted as legal representative of the deceased hazari lal on the ground that she was the daughter and the only heir and legal representative of the deceased and that she learnt of.....
Judgment:

I.D. Dua, J.

1. One Hazari Lal, since deceased, instituted the suit (out of which the present revision has arisen) for possession of the property in dispute and for recovery of Rs. 440/- on account of mesne profits for the period between 5th October, 1951, and 5th May, 1956, at the rate of Rs. 8/-p.m. The suit was based on the allegations that the property in question fell to the plaintiffs share on partition between him and his brothers Nathu Mal, Chuttan Lal and Banwari Lal by means of a final decree in suit No. 196 of 1948 passed by Shri Kripa Ram, Subordinate Judge 1st Class, Delhi and that the share of the plaintiff's brother Banwari Lal was sold on 5th October, 1951, by Court auction to Kashmir Chand Jaiswal, defendant No. 1. It is further averred that defendant No. 1, while taking possession of Banwari Lal's share, forcibly took possession of the suit property as well and failed to surrender possession of this property in spite of plaintiff's protests.

2. Before the defendants could file their written statements, Hazari Lal died on 6th June, 1950. It may here be stated that the plaint had been presented some time in May, 19,56. On Hazari Lal's death, Shrimati Jasodha, claiming to be a legal representative of the deceased, applied on 6th July, 1956, for being substituted in place of the plaintiff and for restoring the suit. Her application was dismissed on 7th June, 1957, on the finding that she was not a legal representative of the deceased.

3. While as yet Shrimati Jasodha's application was pending, Shrimati Shakuntala Devi, the present petitioner before me, filed an application in March, 1957, under Order XXII Rules 3 and 9 and under Section 151 of the Code of Civil Procedure for being substituted as legal representative of the deceased Hazari Lal on the ground that she was the daughter and the only heir and legal representative of the deceased and that she learnt of the suit about five months after Hazari Lal's death and that she became aware of her being the only heir of the deceased just a day or so before her filing the application.

4. Shakuntala Devi's claim has been resisted by the defendants and their opposition is based on denial that Shakuntala Devi is the legal representative of Hazari Lal deceased and also on the plea of limitation.

5. On the pleading's of the parties the following two issues were framed:-

(1) Whether Shakuntala Devi is the legal representative of the deceased plaintiff?

(2) Is her application maintainable even though time barred?

The trial Court holding Shakuntala Devi to be the legal representative of the deceased-plaintiff Hazari Lal decided issue No. (1) in her favour but dismissed her application under issue No. (2) holdingit to be barred by time. Benefit of Section 5 of theIndian Limitation Act was also refused.

6. Feeling dissatisfied with the ultimate decision of the Court below, Shakuntala Devi has preferred this revision through Shri Yogeshwar Dayal, Advocate, who has addressed me at great length,, whereas Shri K.K. Raizada, appearing on behalf of the respondent, has sought to support the order of the Court below with equal vehemence.

7. Mr. Yogeshwar Dayal has contended that as soon as Shrimati Jasodha applied for being substituted in place of the deceased-plaintiff, the provisions of Order XXII Rule 3 were satisfied and the suit could not in law abate thereafter notwithstanding the rejection of Shrimati Jasodha's application. In support of his contention he has cited certain decided cases, but those decisions merely lay down-that where an application has been made by a legal representative even though ultimately the applicant may not be held to be a legal representative-the suit does not abate because, as defined in Section 2(11) of the Code of Civil Procedure, an intermeddler with the estate of the deceased is included in the term 'legal representative'.

In my opinion, the question of abatement of the suit is wholly irrelevant for the purposes of the point that I am called upon to decide and indeed it does not arise at all on the present controversy before me. Shrimati Jasodha's application had admittedly since been rejected on the finding that she was not the legal representative. This finding obviously means that she is not a legal representative-as defined in Section 2(11) of the Code of Civil Procedure which must necessarily be construed to mean; that she was not even an intermeddler. But in any case, her petition having been disallowed, there-is no question of excluding the operation of Order XXII Rule 3(2) which provides for abatement of suits. In the view that I have taken I do not think it is necessary to refer in detail to the authorities cited by Shri Yogeshwar Dayal.

8. It is then urged that it is a fit case in, which the benefit of Section 5 of the Limitation Act should have been given. It is common ground that the application of Shrimati Jasodha was filed on 6th July, 1956, and was well within limitation. It is also common ground that Shrimati Jasodha had been married to Hazari Lal in Rarewa form. It is stated that this marriage was held to be invalid because Shrimati Jasodha's previous husband was alive-at the time of her marriage with Hazari Lal.

The Ground on which the benefit of Section 5-is claimed has been urged to be that Shrimati Shakuntala Devi had initially been under the belief that Shrimati Jasodha was the proper legal heir and representative of Hazari Lal deceased and, therefore, the daughter did not think of coming forward as her father's legal representative, but that when it was learnt that Shrimati Jasodha was not legally wedded wife of the deceased and that Shrimati Shakuntala Devi petitioner being the only child of the deceased was her father's legal representative, she came forward and applied while yet the proceedings initiated by Shrimati Jasodha were pending.

9. Section 5 of the Limitation Act, which provides for extension of period in certain cases, may better be set down here:-

'Any appeal or application for a review of judgment or for leave to appeal or any other application to which this Section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellantor applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation. The fact that appellant or applicant was misled by any order, practice or judgmentof the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section'.

The question is whether the impression that Shrimati Jasodha was the legal representative of deceased Hazari Lal can constitute sufficient cause for not preferring the present application within time within the meaning of this Section. It is fairly established that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice where no serious negligence or in- action or want of bona fides is imputed to the claimant. Similarly, 'good faith' has in this connection to be considered in a general sense.

It is obvious that Shrimati Shakuntala Devi did not desire the suit instituted by her deceased father to go by default. It is also clear on the record that Shrimati Jasodha was claiming to be the legal representative of Hazari Lal as his widow. It is perfectly conceivable -- and indeed nothing has been suggested at the Bar against its reasonable possibility -- that Shrimati Shakuntala Devi bona fide and honestly thought that Shrimati Jasodha had properly been married to her father and, therefore, could legitimately and lawfully claim to be the legal representative of the deceased.

The fact, that the Court ultimately negatived her claim on the ground of the Karewa marriagenot being recognised by strict Hindu Law, does not materially detract from Shrimati Shakuntala Devi's bona fides. It appears that when Shrimati Jasodha's application was seriously opposed by the defendants on technical grounds of Karewa marriage having conferred no legal status on Shrimati Jasodha being Hazari Lal's lawfully wedded wife and, therefore, of being his lawful heir as hiswidow, that it dawned upon Shrimati Shakuntala Devi that in that contingency she would be the legal representative and heir of her deceased father.

In my opinion, these facts would constitute 'sufficient cause' within the contemplation of Section 5 of the Indian Limitation Act. The discretion given by this provision of law is very wide though it has to be exercised judicially and on well recognised principles. The judicial exercise of the discretion does contemplate an enquiry into the fact whether the claimant has been so grossly negligent or inactive or that there is such a serious lack of bona fides that to uphold the plea of sufficient cause may result in injustice to the opposite party.

At this stage, I may also state that the law of limitation ought, generally speaking, to be strictly construed in favour of right to proceed and unless the bar is clear, explicit and undoubted a suitor should not be denied investigation into tile merits of hisgrievance on the ground of time bar. On the facts of the present case, I find it a little difficult to hold that the petitioner before me was guilty either of gross or undue negligence or of inaction or of want of bona fides. Once sufficient cause is shown, in my opinion, the petitioner has a right to extension of time and that this right is claimable ex debito justitiae. It must not be forgotten that the defendants have not yet filed any written statement and their counsel in this Court was not in a position to state if they had any and if so, what lawful title to the property in suit.

10. It was also argued that party claiming indulgence of Section 5 of the Limitation Act must explain each individual day's delay beyond the period of limitation prescribed by law and that in the instant case Shrimati Shakuntla Devi had failed to do so. The legal proposition canvassed is unexceptionable; the question, however, is whether or not Shrimati Shakuntala Devi has complied with this rule on the facts and circumstances of the instant case.

Having held that the claim put forward by Shrimati Jasodha on the basis of Karewa marriage afforded a sufficient cause for the petitioner to abstain from claiming herself to be the heir and legal representative of her deceased father, all that we have to see is if the delay upto the date of her petition i.e. 23rd March, 1957, has been satisfactorily explained.

In cases like the present, where Shrimati Jasodha's application claiming herself to be the legal representative was still pending adjudication and the petitioner was obviously under the impression (which in my view can by no means be characterised to be anything but bona fide) that Shrimati Jasodha's claim was not unjustified, then till she is made to realise that Shrimati Jasodha is not in law the heir and that she (the petitioner) is the real heir, the applicability of Section 5, Limitation Act, cannot justly be ruled out.

Being an illiterate lady she must be allowed sufficient time to take proper legal advice and then ' to approach the Court for prosecuting the suit as the heir and legal representative of her deceased father after she became fully conscious that Shrimati Jasodha's claim was in all probability misconceived for it was only in the absence of Shrimati Jasodha that the petitioner's claim could succeed. The respondent's contention that both the ladies could have jointly applied has obviously no force. On the facts and circumstances of the case, in my view, the petitioner is fully entitled to the benefits of See. 5 of the Limitation Act and her petition should be held to be within limitation.

11. The respondent's contention that ignorance of law is no excuse can be disposed of on the short ground that in certain circumstances such ignorance can justifiably afford' a good ground for attracting the application of Section 5 of the Limitation Act, and indeed I am aware of a number of reported decisions where even a legal adviser's mistake as to law -- if bona fide -- has been held to justify extension of time.

In case of conflict of opinion also benefit of Section 5 has been given in some authoritative decisions. The correct position, as it appears to me,is that in each case the facts and circumstances have to be properly weighed and assessed, and then discretion according to the well-recognised principles has to be exercised. In the case in hand, the pendency of Shrimati Jasodha's application claiming herself to be the sole heir and legal representative of the deceased Hazari Lal is a strong factor, importance of which must not be minimised.

12. At the conclusion of the arguments on themerits, it was contended on behalf of the respondent, that there was no adequate ground for interference on revision and indeed the counsel also contended that an appeal would be competent from the decree dismissing the suit and, therefore, it is mot a fit case in which this Court should interfere under Section 115 of the Code of Civil Procedure. Reliance in support of this contention was placed on Ramireddi v. Rama Krishna Reddi, AIR 1949 Mad 404, in which Horwill J. on similar facts, following an earlier decision of the same Court, held that the only remedy to a person whose application for being brought on record as legal representative had been dismissed is to appeal against the order of abatement.

It was argued in the reported case that the earlier decision of the Madras Court in Subramania Iyer v. Venkataramier, AIR 1916 Mad 1068, had been wrongly decided and that the later decisions of that Court had thrown some doubt on its correctness because a person seeking to be broughton record as a legal representative, but not so brought, would not be a party to the suit and, therefore, would have no right of appeal.

This argument was repelled by the learned Single Judge in Ramireddi's Case, AIR 1949 Mad404 with the observation that although the unsuccessful applicant was not eo nomine a party to the order of abatement, yet, in essence, every person who could possibly claim any interest through the deceased would be affected by the order, because the order is in effect a finding that there was no person entitled to continue the suit after the death of the deceased. With the utmost respect to the learned Single Judge, I am not quite sure if his view of law is quite correct.

The counsel for the parties before me havenot cited any other decided case on the point in question. In my opinion, however, if an application for permission to prosecute the suit as a legal representative of the deceased is disallowed, then obviously any subsequent decree passed in the suit cannot, on general principles, be appealed against by the unsuccessful claimant. He has, however, an undoubted right of assailing the order passed on his application and this right, in my opinion, will not be taken away merely because a subsequent decree has been passed which decree he cannot appeal against without getting the order passed on his application under Order XXII Rule 3 reversed.

It must constantly be borne in mind that this Court, and indeed all Courts in this Republic, exist for the purposes of advancing the cause of justice and so far as possible a suitor must not be turned away on hyper-technical grounds and denied justice. This petition, therefore, must succeed and Shrimati Shakuntala Devi held entitled to the benefits of Section 5 of the Limitation Act and her application must be considered to be within time.

13. The respondent before me did not contest the finding of the Court below that being the daughter of the deceased Hazari Lal, she was the only heir and legal representative entitled to prosecute the suit, though in the Court below an alleged will was unsuccessfully set up in derogation of the petitioner's claim.

14. For the reasons given above, this petition is allowed and the case is sent back for further proceedings according to law. The result of this decision is that any order passed by the Court below after the order which has been set aside would also fall with it and the suit must be restored at the stage at which it was, immediately before the impugned order was passed. Parties are directed to appear in the Court below on 17th October when another date would be given for further proceedings. In the peculiar circumstances of the case, there will be no order as to costs in this Court.


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