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Dhani Ram and anr. Vs. Mohd. Usman and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 172 of 1969, from decree of K.J.N. Verma, Addl. Dist. J., Delhi. D/- 26-7-1969
Judge
Reported inAIR1974Delhi89
ActsLimitation Act, 1968 - Sections 5 and 17(1)
AppellantDhani Ram and anr.
RespondentMohd. Usman and ors.
Appellant Advocate B.P. Maheswari and; Suresh Sethi, Advs
Respondent Advocate Bakshi Gurcharan Singh, Adv.
Excerpt:
.....of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - a person complying with the requirements of section 17(1)(b) would be well within the original period of limitation which would not begin to run till he discovers the fraud or mistake of the opposite party. the main reason why the appeal failed was abatement. it did not fail on merits......another application was made by two other legal representatives, namely shri dhani ram and smt. shanti devi, for being brought on record in place of the deceased banarsi das under order xxii, rule 3 read with rule 11, civil procedure code. an application under section 5 of the limitation act was also made for extension of the prescribed period of limitation for setting aside the abatement of the appeal. the only reason given for the delay in making the application was that the applicants had no knowledge about the pendency of the appeal and that they came to know of it only a day before the application was filed. the application was dismissed by the first appellate court on the ground hat the applicants knew about the death of banarsi das when he died, and thereforee, there was no.....
Judgment:

1. The suit of the respondent No.1 landlord for appears of rent against his tenant Banarsi Das was decreed by Sub-Judge, First Class, Delhi. During the pendency of the first appeal filed by Banarsi Das, the said Banarsi Das died on 15-07-1968. One of his legal representatives, namely, his son Shri Ram, made an application on 23-11-1968 for being brought on record as the legal representative of the deceased. This application was deliberately vague. It did not even mention the date of the death of Banarsi Das. As it was filed beyond the prescribed period of limitation, no action could be taken on it. On 7-12-1968 another application was made by two other legal representatives, namely Shri Dhani Ram and Smt. Shanti Devi, for being brought on record in place of the deceased Banarsi Das under Order Xxii, Rule 3 read with Rule 11, Civil Procedure Code. An application under Section 5 of the Limitation Act was also made for extension of the prescribed period of limitation for setting aside the abatement of the appeal. The only reason given for the delay in making the application was that the applicants had no knowledge about the pendency of the appeal and that they came to know of it only a day before the application was filed. The application was dismissed by the first appellate Court on the ground hat the applicants knew about the death of Banarsi Das when he died, and thereforee, there was no sufficient cause for extending the prescribed period of limitation under Section 5 of the Limitation Act. He, thereforee, held that the appeal had abated and as the abatement was not being set aside, the decree of the trial Court stood. The appeal was also dismissed as having abated.

2. In this second appeal, the main ground on which the first appeallate judgment is attacked is that on evidence addued before the first appellate Court it should have been held that the applicants legal representatives Dhani Ram and Shanti Devi did not know about the pendency of the appeal and this was a sufficient cause why their application for setting aside the abatement of the appeal was delayed within the meaning of Section 5 of the Limitation Act. The Respondent No.1 has filed cross-objections only for costs. Assuming that Dhani Ram and Shanti Devi did not know about the pendency of the appeal which had been filed by the deceased Banarsi Das and that they came to know of it after the appeal had abated and only a day before the application for the setting aside of the abatement was made by Dhani ram and Shanti Devi, d by the first appellate Court on the ground hat the applicants knew about the death of Banarsi Das when he died, and thereforee, there was no sufficient cause for extending the prescribed period of limitation under Section 5 of the Limitation Act. He, thereforee, held that the appeal had abated and as the abatement was not being set aside, the decree of the trial Court stood. The appeal was also dismissed as having abated.

3. In this second appeal, the main ground on which the first appeallate judgment is attacked is that on evidence addued before the first appellate Court it should have been held that the applicants legal representatives Dhani Ram and Shanti Devi did not know about the pendency of the appeal and this was a sufficient cause why their application for setting aside the abatement of the appeal was delayed within the meaning of Section 5 of the Limitation Act. The Respondent No.1 has filed cross-objections only for costs. Assuming that Dhani Ram and Shanti Devi did not know about the pendency of the appeal which had been filed by the deceased Banarsi Das and that they came to know of it after the appeal had abated and only a day before the application for the setting aside of the abatement was made by Dhani ram and Shanti Devi, d by the first appellate Court on the ground hat the applicants knew about the death of Banarsi Das when he died, and thereforee, there was no sufficient cause for extending the prescribed period of limitation under Section 5 of the Limitation Act. He, thereforee, held that the appeal had abated and as the abatement was not being set aside, the decree of the trial Court stood. The appeal was also dismissed as having abated.

4. In this second appeal, the main ground on which the first appeallate judgment is attacked is that on evidence addued before the first appellate Court it should have been held that the applicants legal representatives Dhani Ram and Shanti Devi did not know about the pendency of the appeal and this was a sufficient cause why their application for setting aside the abatement of the appeal was delayed within the meaning of Section 5 of the Limitation Act. The Respondent No.1 has filed cross-objections only for costs. Assuming that Dhani Ram and Shanti Devi did not know about the pendency of the appeal which had been filed by the deceased Banarsi Das and that they came to know of it after the appeal had abated and only a day before the application for the setting aside of the abatement was made by Dhani ram and Shanti Devi, New Roman';color:maroon'>

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid:

x x x x x x the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud . . . . . . or could, with reasonable diligence, have discovered it;'.

This specifically deals with the case of a person from whom knowledge or right or title on which a suit or application is founded is concealed by the fraud of the defendant-respondent or his agent. The theory underlying Section 17(1)(b) is that every person is presumed to know of them, the time for filing a suit or application based on such a right or title is not prevented from running against him. The only exception to this rule is - when such a person is prevented from knowing about such a right or title by the fraud of the opposite party.

5. The provisions of Section 5 may be contrasted with Section 17(1)(b). While the period of limitation itself does not begin to run if Section 17(1)(b) applies, Section 5 applies only after the period of limitation has run out. Section 5 is thereforee, based on the assumption that cause which would have prevented the starting of the running of the period of limitation under Section 17(1)(b), namely, the ignorance of the applicant brought about by the fraud of the non-applicant, is absent in a case to which Section 5 applies. If the cause embodied in Section 17(1)(b) itself exists, then the period of limitation itself would not begin to run and the person prevented from knowing about his right by the fraud or mistake of the opposite party would not be required to make any application under Section 4 at all. The question of extension of the period of limitation which has already expired would not then arise. A person complying with the requirements of Section 17(1)(b) would be well within the original period of limitation which would not begin to run till he discovers the fraud or mistake of the opposite party. The application by Dhani Ram and Shanti Devi was not one based on Section 17(1)(b).

6. The question which, thereforee, arises is whether in the absence of the justification afforded by Section 17(1)(b). Dhani Ram and Shanti Devi can plead ignorance of their right or title on which their application is founded. The title of Dhani Ram and Shanti Devi to the tenancy could have arisen only when Banarsi Das died and Dhani Ram and Shanti Devi could claim to inherit his tenancy. Similarly, their right to be brought on record as legal representatives in place of Banari Das arose when the latter died. Both the title and the right were admittedly known if the first appeal was pending against the decision of the trial Court in the suit which had been filed by the landlord against Banarsi Das. The right to file an appeal include the right to continue the appeal. If Banarsi Das had the right to file the appeal, his legal representatives had the right to continue it. The right to continue the appeal was also, thereforee, a part of the right or title on which the application for being brought on record as the legal representative of the deceased was to be founded. Dhani Ram and Shanti Devi were, thereforee, presumed to know all about their right and title except in so far as they could be prevented from knowing about them by the fraud of the Respondent No.1 landlord. As no such fraud is alleged, even if it is assumed that Dhani Ram and Shanti Devi were ignorant about their right and title to be brought on record as the legal representatives of Banarsi Das in the first appeal, they have to thank themselves for such ignorance.

7. The 'sufficient cause' contemplated by Section 5 must be different from the knowledge of the right or title on which a suit or application is founded' within the meaning of Section 17(1)(b). Otherwise, a person who cannot comply with the requirements of Section 17(1)(b) would be entitled to obtain the benefit of Section 5 for serving the same purpose. It could not be the intention of the Legislature to nullify the provisions of Section 17(1)(b) by enacting Section 5. On the other hand, the scope of these twos provisions has to be understood as being distinct from each other. thereforee 'Sufficient cause' under Section 5 would exclude the knowledge of the right or title to make the application. Such knowledge includes the knowledge of the pendency of the appeal. Even if, thereforee, it is assumed that Dhani Ram and Shanti Devi did not know about the pendency of the appeal, this was not a sufficient cause for not preferring the application within the prescribed period of limitation within the meaning of Section 5 of the Limitation Act. In view of this finding, it is not necessary to consider whether, in fact, Dhani Ram and Shanti Devi did not know about the pendency of the appeal. The decision of the first appellate Court is, thereforee affirmed, though on different grounds.

8. The costs of the first appeal were in the discretion of the first appellate Court. The main reason why the appeal failed was abatement. It did not fail on merits. Costs were not, thereforee, allowed by the first appellate Court. I see no reason to interfere with this discretion. The cross-objections are, thereforee, dismissed.

9. The costs of this appeal are also left to be borne by the parties as incurred.

10. Ordered accordingly.


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