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Prem Nath and ors. Vs. Kaudoomal Rikhiram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 34 of 1958
Judge
Reported inAIR1962P& H446
ActsDisplaced Persons (Debts Adjustment) Act, 1951 - Sections 13; Indian Limitation Act - Sections 5 - Schedule - Articles - 171 and 177; Code of Civil Procedure (CPC), 1908 - Order 22, Rules 4 and 11; Uttar Pradesh Town Improvement (Appeals) Act; Displaced Persons (Institution of suits) Act, 1948
AppellantPrem Nath and ors.
RespondentKaudoomal Rikhiram and ors.
Cases ReferredUnion of India v. Qabool
Excerpt:
.....the parties concerned acquire knowledge of passing of the said order. - 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. it is further laid down that a 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. 22 and to such an application section 5. indian limitation act, is clearly inapplicable (sic). the discretion given by section 5 of the limitation act is, as its terms suggest, very wide, though it has always to be exercised judicially and on..........ram, one of the respondents, died on 10-1-1960 and the application for bringing on record his legal representatives was filed in this court on 5-5-1960. according to the counsel this petition is barred by time and no sufficient reason having been shown for setting aside the abatement, the present appeal should be held to have abated and, therefore, be dismissed on that ground. the fact that rikhi ram actually died on 10-1-1960 is not disputed. it is also clear that an application under o. 22 r. 4 read with section 151, code of civil procedure, was filed in this court on 5-5-1960. on the same day, an application under section 5 of the indian limitation act for condoning the delay in making the application under o. 22 r. 4, code of civil procedure, was presented to this court.in the.....
Judgment:

(1) This is an appeal under Clause 10 of the Letters Patent and is directed against the judgment of a learned Single Judge of this Court dated 1-11-1957 maintaining the order of the Tribunal constituted under the Displaced Persons (Debts Adjustment) Act No. LXX to 1951 dismissing the appellants' application under Section 13 of the Displaced Persons (Debts Adjustment) Act.

(2) Before dealing with the merits, two preliminary objections raised on behalf of the respondents by Shri Shamair Chand have to be disposed of. The counsel has in the first instance urged that the present appeal has abated because Rikhi Ram, one of the respondents, died on 10-1-1960 and the application for bringing on record his legal representatives was filed in this Court on 5-5-1960. According to the counsel this petition is barred by time and no sufficient reason having been shown for setting aside the abatement, the present appeal should be held to have abated and, therefore, be dismissed on that ground. The fact that Rikhi Ram actually died on 10-1-1960 is not disputed. It is also clear that an application under O. 22 R. 4 read with Section 151, Code of Civil Procedure, was filed in this Court on 5-5-1960. On the same day, an application under Section 5 of the Indian Limitation Act for condoning the delay in making the application under O. 22 R. 4, Code of Civil Procedure, was presented to this Court.

In the affidavit accompanying this application it is stated that Prem Nath deponent came to know of Rikhi Ram's death only on 2-5-1960 when he was brought to Chandigarh. On learning of the death he sent his son Vijay Nath to Gurdaspur to make enquiries, about the legal representatives of the deceased. From 14-10-1959 to 2-5-1960, the deponent was in Delhi undergoing treatment by a Heart Specialist (Prof. S. B. Roy of the All India Institute of Medical Science, New Delhi) because he had at attack of coronery thrombosis. As he had been suffering from this desease, he could not be aware of Rikhi Ram's death. The deponent, according to this affidavit, was unable to travel on account of the ailment mentioned above.

(3) Shri Shamair Chand has made a reference to the affidavit filed by Sardari Lal Respondent but that affidavit in no way militates against the assertions made in Prem Nath's affidavit. I may, however, mention that Prem Nath actually died as a result of his heart trouble on 16-4-1961.

(4) Shri Shamair Chand has contended that mere ignorance of the death of Rikhi Ram is no ground by itself for excusing the delay of nearly 25 days in bringing on record the legal representatives of the deceased. In support of this contention, he placed reliance on a Full Bench decision of this Court in Firm Dittu Ram v. Om Press Co., Ltd., 1960-62 Pun LR 133: (AIR 1960 Punj 335) (FB). The head note of the reported case lays down that ignorance of the death of a defendant is not a sufficient cause for setting aside the abatement when the application to bring the legal representatives of the deceased defendant on the record is made after the expiry of the period of limitation. The head-note further proceeds that law casts a duty upon the plaintiff or the appellant, as the case may be, to bring on record the legal representatives of deceased defendant or respondent where death takes place during the pendency of the lis in order that no decree 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 allow a 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 Section 5 of the Limitation Act justifying condoning of delay, the reason being that a valuable right accrues to the party against whom the suit had abated and the order or abatement should not be set aside as a matter of course or for very slight reasons.

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. And if the applicant, has been prevented from making an application due to circumstances beyond his control or despite reason able diligence, the Courts in their desire to do substantial justice do ordinarily condone the delay. It is further laid down that a 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. This decision, in my opinion, does not advance the respondents' case or support their contention that ignorance of the death of the opposite party can never constitute a sufficient cause for condoning delay in bringing on record the legal representatives of the deceased. The counsel also referred to a decision given by me in Single Bench in Jagar v. Mst. Natho, AIR 1960 Punj 207. This decision also does not assist the respondent. In that case an application filed by the appellants did not contain any explanation about the delay and on a consideration of the circumstances and the relationship of the parties I came to the conclusion that no sufficient cause had been shown for condoning the delay.

(5) Under Article 177 of the Indian Limitation Act, an application under the Code of Civil Procedure to bring on record the legal representatives of a deceased respondent can be made within ninety days from the death of the deceased. In case no such application is made, the appeal abates as against the deceased respondent vide order 22, Rules 4 and 11, Civil Procedure Code. Article 171 of the Indian Limitation Act prescribes a period of sixty days from the date of abatement for an application to obtain an order to set aside the abatement. Such an application lies under O. 22 R. 9 of the Code and sub-rule (3) expressly makes the provisions of Section 5 of the Indian Limitation Act applicable to the applications under sub-rule (2). It is true that the appellants' counsel labeled his application under O. 22 R. 4, but the label is immaterial and it appears that the petition is in effect intended to be under R. 9 of O. 22 and to such an application Section 5. Indian Limitation Act, is clearly inapplicable (sic). The discretion given by section 5 of the Limitation Act is, as its terms suggest, very wide, though it has always to be exercised judicially and on well-recognised principles. The judicial exercise of the discretion, in my view, does contemplate an enquiry into the fact whether the person claiming indulgence has been so negligent or inactive or that there is such a serious lack of bona fides that to uphold the plea of sufficient cause is likely to result in injustice to the opposite party.

The words 'sufficient cause', as has been observed in several judicial decisions call for a liberal construction so as to advance substantial justice and for this purpose the facts of each case have to be considered in their own perspective. If I may so put it, the Court has duty to strike a proper balance between the rule on which the statute of limitation is based, namely, that suitors should be vigilant and Court proceedings should be speeded up and not unduly delayed on account of the laches or avoidable delays, and the rule that procedural provisions should not be allowed unduly to impede, thwart or obstruct considerations of substantive rights of the parties on their merits. The Courts are always inclined to look at the plea of 'sufficient cause' in a practical way and they are averse to adopt any decirinaire approach to the question. Considering the matter in the light of what has just been stated, I have not the least hesitation in condoning the delay in filing the application for setting aside the abatement which was otherwise well within time prescribed by Art. 177 of the Indian Limitation Act.

(6) Another subsidiary point raised by Shri Shamair Chand in support of his contention that the appeal should be deemed to have abated and should, therefore, be dismissed, is based on the allegation that the application filed on 5-5-1960 merely sought to implead three persons as the legal representatives of Rikhi Ram deceased and that the other heirs and legal representatives of the deceased were only sought to be brought on the record on 29-7-1960. The contention is that under O. 22, R. 4, Civil Procedure Code, the whole body of the legal representatives of the deceased defendant should be caused to be impleaded and that if some of such legal representatives are left out then the consequences contemplated by sub-rule (3) of R. 4 are attracted. Here, it is pertinent to point out that the application dated 29-7-1960 is supported by an affidavit of Prem Nath appellant (since deceased), in which is clearly stated that according to his information only three persons sought to be impleaded by means of the application dated 5-5-1960 were the representatives of the deceased, and that it was only when the counsel a copy of Sardari Lal's affidavit that there were other legal representatives of the deceased as well that he came to know of their existence and with the utmost promptitude an application to bring the remaining legal representatives on the record was made on the following day.

(7) It is true there is a conflict of judicial opinion on the question whether, when a defendant dies leaving two or more legal representatives, all of them should be impleaded and what is the effect of the failure to do so. Even in the Lahore High Court, there appears to be some conflict of opinion. In Begum Jan v. Jannat Bibi AIR 1927 Lah 6, a Division Bench consisting of Harrison and Jai Lall JJ. took the view that the words 'legal representative' in O. 22 R. 4, Civil Procedure Code, do not mean all legal representatives. A sufficient compliance is made with the directions their laid down if a bona fide application is made to bring on record all the legal representatives known to the party so far as the party applying could ascertain them after the exercise of due care and industry. As against the in Muhammad Hassan v. Inayat Hussain. AIR 1927 Lah 94, Shadi Lal C. J. and Agha Haldar J. observed that the expression 'legal representatives' means and includes one person as well as several persons according as they represent the whole interest of the deceased person. The Bench, however, did not consider the view expressed by it to be opposed to the law as laid down in another Division Bench of the same Court in Abdul Rahman v. Shahab-Ud-Din, ILR 1 Lah 481 : (AIR 1920 Lah 228, where bona fide belief about the party actually impleaded being the sole heir and legal representative of the deceased was considered to be a sufficient ground for holding against abatement of the appeal.

In Abdul Ghaffar v. Mohammad Haroon, AIR 1935 Lah 712 Addison and Din Mohammad JJ. observed that if in spite of due diligence exercised in bringing the legal representatives of a deceased party on the record any representative is omitted, the omission is venial. Another Division Bench of that Court (Young C. J. and Ram Lall J.) in Mst. Umrao Begum v. Sheikh, Rahmat Illahi, AIR 1939 Lah 439 after reviewing the case law noticed a string of authority to the effect that where one of several legal representative is already on the record, applications to place others on the record can be made and allowed after the expiry of the period of limitation. On behalf of the respondents our attention has not been drawn to any authority of this Court (in fact the respondents' counsel cited no precedent on this point) taking a contrary view and thereby inducing us to hold that it Prem Nath, after the exercise of due diligence, filed a bona fide application for bringing on record three legal representatives of Rikhi Ram, deceased including his son Sardari Lal and that it immediately on being informed of the existence of the other legal representatives, who, as is apparent from the record, are merely daughters, grandson and daughter-in-law of the deceased, an application was filed in this Court without any delay, then this appeal should be held to abate. As at present advised, therefore, on the existing record, I have no hesitation in holding that in the circumstances of this case Prem Nath acted in a bona fide diligent manner and this Court should not disallow the application for setting aside the abatement and bringing on record the legal representatives of Rikhi Ram deceased respondent.

(8) A feeble attempt was made on behalf of the respondents to raise still another preliminary objection on the ground that the impugned judgment of the learned Single Judge is not appealable under Clause 10 of the Letters Patent. It has been submitted that an order passed by a Single Judge of this Court on appeal under the Displaced Persons (Debts Adjustment) Act LXX of 1951, is not a judgment within the contemplation of the said clause. Assistance has been sought for this submission from a decision of this Court in Union of India v. Qabool, 1962-64 Pun LR 377: (AIR 1962 Punj 373) in which my Lord the Chief Justice sitting with Mehar Singh J. held that a certificate on appeal under Article 133 of the Constitution could not be granted from a decision of this Court in an appeal under the U. P. Town Improvement (Appeals) Act, against the award of a Tribunal constituted under the said Act, as extended to Delhi. I am unable to sustain the objection. The reported case is clearly distinguishable as it deals with a statute very much different from the one which concerns us; this decision thus does not lend any assistance to the respondents' contention. Section 40 of Act LXX of 1951 confers right of appeal from any final decree or order of the Tribunal constituted under the Act as also from any order made in the course of execution of such a decree or order made in the course of execution of such a decree or order, to the High Court in certain circumstances. It is not disputed that the appeal disposed of by the learned Single Judge was preferred to this Court under this provision of law.

The scheme of the Act suggests that the proceedings before the Tribunal are judicial proceedings and are regulated by the provisions of the Civil Procedure Code. The Tribunal itself has been defined to mean any Civil Court specified under Section 4 having authority to exercise jurisdiction under the Act and its decrees and orders are executable by it in the same manner as its own decrees or orders passed as a Civil Court. The appeal proceedings in this Court under Section 40 do not seen to me to be comparable with the appeal proceedings dealt with in Qabool's case, 64 Pun LR 377 : (AIR 1962 Punj 373). And then the practice of this Court has also been to permit Letters Patent Appeals from appellate judgment's of Single Benches under Section 40,. As a matter of fact Shri Shamair Chand also did not seriously pursue this objection. I am, therefore, not inclined, as at present advised, to sustain this objection.

(9) Coming to the merits of the controversy, it may be stated that the appeal arises out of the proceedings initiated by Shri Prem Nath, the predecessor-in-interest of the present appellants under Section 13 of Act LXX of 1951 for the recovery of Rs. 43,891/2/9 from the respondents who frankly admitted the original liability but pleaded its discharge by payment to a third party Messrs R. B. Lachhman Das Mohan Lal and Sons at the instance of the creditor. The Tribunal in a very exhaustive and well-reasoned order held proved beyond doubt that the amount due by the debtor had been paid to Messrs. R. B. Lachhman Das Mohan Lal and Sons in the account of the creditor claimant on the instruction of Prem Nath. The Tribunal further held the application under Act LXX of 1951 to be barred by time.

(10) On appeal, the learned Single Judge again went into the matter in detail and after reviewing the evidence and the legal position canvassed agreed with both the conclusions of the Tribunal.

(11) On Letters Patent Appeal, Shri Bhagirath Das has submitted that the cause of action of the claim in question had arisen at Lahore (now in West Pakistan) and, therefor, the appellant was entitled to the benefit of the Displaced Persons (Institution of suits) Act 47 of 1948 and that the learned Single Judge is in error in holding to the contrary. Regarding the finding of payment of Messrs R. B. Lachhman Dass Mohan Lal and Sons the counsel has merely contended that the story is unlikely and the finding of payment should, therefor, not be upheld. He has not chosen to meet the reasoning of the learned Single Judge.

(12) Shri Shamair Chand has, however, pointed out the findings both of the Tribunal and of the learned Single Judge and has submitted that the conclusion of fact having not been successfully challenged the appeal must be held to be without merit.

(13) After hearing the counsel for the parties, I am unable to find any cogent ground for disagreeing with the conclusions of the learned Single Judge which are in confirmation of the findings of the tribunal. There is no reliable evidence to which our attention has been drawn and from which it can be reasonably concluded that the cause of action arose at Lahore and indeed the learned counsel frankly conceded that there was no written agreement and no affirmative evidence on the point. The finding that payment was made by the debtor to Messrs. R. B. Lachhman Dass Mohan Lal and Sons in the creditors account at the instance of Prem Nath has also not been shown to be erroneous or unjustified, and indeed as is clear from the judgment of the learned Single Judge there is overwhelming evidence e both documentary and oral on the record in support of this conclusion.

(14) The appeal is thus held devoid of merit and is dismissed with costs.

GF/D.H.Z.

(15) Appeal dismissed.


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