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Union of India Vs. Radha Kishan Sohan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 95 of 1956
Judge
Reported inAIR1962P& H493
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rules 3, 4, 10 and 11 - Order 32, Rule 3; ;Limitation Act - Sections 5 - Schedule - Articles 171 and 177
AppellantUnion of India
RespondentRadha Kishan Sohan Lal and ors.
Cases ReferredChuni Lal Tulsiram v. Amin Chand
Excerpt:
..... - if for failure to bring legal representatives on the record within ninety days, the suit or the appeal abates, it is for the applicant to get the abatement set aside by making an application within sixty days on proof of sufficient cause. the court is entitled to know the cause of ignorance before determining whether such ignorance should be deemed to be a good cause for setting aside abatement in the circumstances of a particular case. xx xxx i am however of the view that before ignorance of death can be deemed to be a good ground, there must exist good grounds for ignorance not attributable to negligence. happy valley tea co. we are satisfied that the application for setting aside the abatement has been made after an inordinately long delay, and, there is no explanation..........of knowledge of death, will be insufficient to secure him against consequences of abatement of his suit or appeal; he has further to show absence of want of care. when reasonable vigilance is a duty unqualified ignorance cannot be deemed venial. want of information may be overlooked if want was not induced by neglectful indifference or blameworthy remissness. allowing oneself to remain in the dark cannot be treated as a pursuasive ground for condonation of delay. the above observations with only a single exception find support in a long catena of the decisions of this court and its predecessor the chief court of punjab. the view that has received almost uniform acceptance in punjab is that ignorance of death per se does not furnish sufficient ground for setting aside abatement after the,.....
Judgment:

Tek Chand, J.

(1) This is a Letters Patent appeal on behalf of the Union of India from the judgment of a learned Single Judge of this Court. A preliminary objection has been raised, namely, that the appeal had abated long time ago and no application within time was filed for setting aside the abatement. In this case the respondents are Radha Kishan Sohan Lal, a joint Hindu family firm, who was being proceeded through Sohan Lal as the karta. The other members of the joint Hindu family had not been impleaded. On 6th of July 1959 Sohan Lal died during the pendency of the Letters Patent appeal. On 21st of August 1959 the fact that Sohan Lal had died was brought to the notice of the opposite party at the hearing. The Divisional Bench consisting of Bhandari C. J. and Falshaw, J. by their order dated 21st of August 1959 stated that it appeared that Sohan Lal had died recently and Mr. H. S. Doabia for the Union of India asked for an adjournment to implead the legal representatives of Sohan Lal deceased. The case was consequently adjourned.

On 10th of March 1960 an application was filed under Order 22, Rule 4 and Order 32, Rule 3 of the Code of Civil Procedure for bringing on record the legal representatives of Sohan Lal deceased. It was stated that Sohan Lal had left six heirs named in the application and it was prayed that they may be brought on the record and the abatement which had already resulted be set aside. This application was accompanied with an affidavit of Shri Kidar Singh, D. S. (Deputy Superintendent), Central Excise and Customs, Ludhiana, in which he stated:

'I solemnly declare and affirm that the date of death of Seth Sohan Lal of M/S Radha Kishan Sohan Lal first came to the knowledge of the undersigned on 30th October 1959'.

The fact, however, is that the matter was brought to the notice of Shri H. S. Doabia, learned counsel who appeared for the Union of India, on 21st of August, 1959. Beyond the above-quoted para from the affidavit of Shri Kidar Singh, no reason whatsoever has been assigned why he or any other representative of the Department who was interested in the litigation remained in ignorance and what factors led to their not knowing that Sohan Lal had died. The application dated 10th of March, 1960 is hopelessly time-barred. It was made more then eight months after the death of Sohan Lal when not only the appeal had long abated but the limitation for the application to set aside abatement had long expired. To avoid abatement the application should have been made within ninety days of the death of Sohan Lal and in order to get the abatement set aside the application should have been made within sixty days of the abatement. The appellant had a period of 150 days altogether for this purpose. There is no explanation of any kind forthcoming as to why the application was not made earlier. In a recent decision of a Full Bench of this Court, Firm Dittu Ram Eyedan v. Om Press Co. Ltd., Fazilka, AIR 1960 Punjab 335, this matter was examined in detail by me, and the following observations are relevant for deciding this case:

'The law casts a duty upon the plaintiff or the appellant, as the case may be, to bring on the record legal representatives of a deceased defendant of respondent where death takes place during the pendency of the lis in order that no decrees may be passed against deceased persons. If for failure to bring legal representatives on the record within ninety days, the suit or the appeal abates, it is for the applicant to get the abatement set aside by making an application within sixty days on proof of sufficient cause.

Where he allows a period of 150 days to expire from the death of the deceased, he has to satisfy the Court of the existence of circumstances contemplated by S. 5 of the Limitation Act justifying condonation of delay. The reason is that a valuable right accrues to the party against whom suit has abated and the order of abatement should not be set aside as a matter of course or for very slight reasons. An applicant must, therefore, show that he had sufficient cause for not taking timely steps to continue his suit which has abated on account of the death of a party.

In construing the expression 'sufficient cause' the existence or otherwise of negligence of the applicant is always a governing factor, and this is because of the omission to perform a duty cast upon him by law. If the applicant has been prevented from making an application due to circumstances beyond his control or despite reasonable diligence, the Courts in their desire to do substantial justice do ordinarily condone delay. It is true that it will be an impossible test if the applicant were required to keep himself informed from day to day as to whether the respondent was dead or alive.

On the other extreme, will be the case, where ignorance of death taken by itself should be considered a sufficient cause for setting aside abatement. The Court is entitled to know the cause of ignorance before determining whether such ignorance should be deemed to be a good cause for setting aside abatement in the circumstances of a particular case.

xx xxx I am however of the view that before ignorance of death can be deemed to be a good ground, there must exist good grounds for ignorance not attributable to negligence. When law imposes an obligation on a person to bring legal representatives of deceased opponent on the record within the prescribed period, mere want of knowledge of death, will be insufficient to secure him against consequences of abatement of his suit or appeal; he has further to show absence of want of care. When reasonable vigilance is a duty unqualified ignorance cannot be deemed venial. Want of information may be overlooked if want was not induced by neglectful indifference or blameworthy remissness. Allowing oneself to remain in the dark cannot be treated as a pursuasive ground for condonation of delay.

The above observations with only a single exception find support in a long catena of the decisions of this Court and its predecessor the Chief Court of Punjab. The view that has received almost uniform acceptance in Punjab is that ignorance of death per se does not furnish sufficient ground for setting aside abatement after the, expiry of the periods mentioned in Arts. 171 and 177 of the Limitation Act'.

Our attention was drawn to a decision of a Single Bench of Calcutta High Court reported as Ganeshmull Surana v. Nagraj Surana, AIR 1953 Cal 294, in which Banerjee J. held that the death of the karta does not make any difference to the suit which cannot abate. The family is there and the next karta springs up and the family is described as suing by the next karta. An application for setting aside abatement, if any, of the suit and substitution of the petitioner, the next karta, in place of the deceased karta who filed the suit for self and as the karta of a Mitakshara joint family is an application to continue the suit and the suit does not abate. This view was repelled by that High Court in Darshanlal Agarwalla v. Happy Valley Tea Co. Ltd., AIR 1958 Cal 691, although the decision of the learned Single Judge was not noticed there.

Before us the learned counsel for the respondent cited a Division Bench decision of the Nagpur High Court in Shop of Bhai Ganeshram Balbhadra v. Firm Mangilal Balkisan, AIR 1952 nag 390. It was held by the Division Bench of that Court after reviewing a large number of authorities that a suit by or against a joint Hindu Mitakshara family may be conducted or defended, as the case may be, by the karta alone in a representative capacity or by all the members of the family being impleaded. If the karta alone is one the record, in the event of his death substitution has got to be made within the time limited by law either of the succeeding karta in his representative capacity or of all the surviving members of the family. But in each case the application has to be one for substitution, which has got to be made within 90 days of the date of death. Otherwise, the suit or the appeal, as the case may be, will abate. On these facts it was held that where a decree is obtained against the karta alone in his representative capacity and during the pendency of appeal by him be dies and no application for substitution of the succeeding karta or all the surviving members of the family is made within 90 days of such death, the appeal abates by virtue of Order 22, Rule 3 read with Order 22, Rule 11, Civil Procedure Code. It was also remarked that Order, 22, Rule 10, which is a residuary rule, can have no application to such a case.

View to the same effect was expressed by a Division Bench of our Court in Province of East Punjab v. Labhu Ram, AIR 1955 Punj 225. In that case the property belonged to two brothers and it was requisitioned by Government for military purposes. It is not clear whether the two brothers were just joint or they were also members of a joint Hindu family. The question of abatement arose and an application to set aside abatement and to bring the legal representatives of one of the deceased brothers on record had been made after a long delay. In that case the application gave no satisfactory reason for the inordinate delay except that enquiries were being made by the petitioner. This was not considered to be a satisfactory explanation and the abatement was, therefore, not set aside in so far as it related to that deceased brother.

Our attention has been drawn also to Chuni Lal Tulsiram v. Amin Chand, AIR 1933 Lah 356 (2) at p. 336, where similar observations were made. We are satisfied that the application for setting aside the abatement has been made after an inordinately long delay, and, there is no explanation whatsoever for the representatives of the appellant having remained in ignorance not attributable to want to care. In the circumstances, the preliminary objection succeeds. The appeal is dismissed with costs.

Dua, J.

(2) I agree.

(3) Appeal dismissed.


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