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Union of India Vs. Mai Dayal Agarwal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal Nos. 321 of 1977 and 537 of 1978 and First Appeal No. 62 of 1974
Judge
Reported inILR1979Delhi198
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 9(2)
AppellantUnion of India
RespondentMai Dayal Agarwal and anr.
Advocates: H.S. Dhir and; J.P.Gupta, Advs
Cases ReferredSham Das vs. Mahabir Das
Excerpt:
civil procedure code - order 22 rule 9(2)--scope of--'sufficient cause'--meaning of--duty of applicant of explain each day's delay--limitation act - section 5--applicability of.; (per deshpande, j.).--the period under article 120 of limitation act, 1908 is available to the applicant without having to show any diligence if the application is made to make the legal representatives parties to the suit within 90 days after the death of the deceased party. but as soon as the period of 90 days expires, the suit abates and thereafter the applications for making the legal representatives parties as also for setting aside the abatement has to be sustained by averments of sufficient cause which prevented the continuance of the suit by making the applicant within 90 days and also which entitled the.....v.s. deshpande, j.(1) respondent no. 1 who was the sole contesting respondent (respondent no. 2 being the arbitrator) died on the 12th september, 1976. this fact was intimated by shri j. p. gupta counsel for the decree-holder. mai dayal, to shri h. s. dhir, counsel for the judgment-debtor in the execution proceedings. shri j. p. gupta also got substituted the names of two legal representatives of the deceased, mai dayal, in the execution proceedings, 0n^l9th january, ' 1977, thereforee, shri h. s. dhir, counsel for the union of india, came to know firstly, that mai dayal died on 12th september, 1976, and secondly, that two persons had been substituted as his legal representatives in the- execution proceedings. (2) on this knowledge, the learned counsel, shri h. s. dhir, could have.....
Judgment:

V.S. Deshpande, J.

(1) Respondent No. 1 who was the sole contesting respondent (respondent No. 2 being the arbitrator) died on the 12th September, 1976. This fact was intimated by Shri J. P. Gupta counsel for the decree-holder. Mai Dayal, to Shri H. S. Dhir, counsel for the judgment-debtor in the execution proceedings. Shri J. P. Gupta also got substituted the names of two legal representatives of the deceased, Mai Dayal, in the execution proceedings, 0n^l9th January, ' 1977, thereforee, Shri H. S. Dhir, counsel for the Union of India, came to know firstly, that Mai Dayal died on 12th September, 1976, and secondly, that tWo persons had been substituted as his legal representatives in the- execution proceedings.

(2) On this knowledge, the learned counsel, Shri H. S. Dhir, could have straightway made an application in this appeal as the appellant staling that respondent No. 1 was dead and according to the information given by Shri J. P. Gupta, counsel for the deceased respondent and subsequently for his legal representatives, he had left two legal representatives, whose names were given in the execution proceedings. This information was sufficient. Shri Dhir says that he could not have made such an application without an affidavit and the affidavit had to be sworn by the representative of the Union of India. While such a procedure may be normal, in the peculiar circumstances of the present case, in our view, Shri Dhir could himself have made both the applications, namely, (1) for bringing the legal representatives on record, and (2) for setting aside the abatement of the appeal which had taken place on the expiry of 90 days from 12th September, 1976. No affidavit was needed.

(3) Instead, Shri Dhir wrote to the department and ultimately filed an application for setting aside the abatement on 7th February, 1977. He contends that under Article 121 of the Schedule to the Limitation Act he had 60 days to make the application. The period of limitation would have expired on the 9th February, 1977. His application for setting aside the abatement was thereforee, within time. This argument is unacceptable.

(4) Article 121 of the Schedule to the Limitation Act reads as under:

'Under the same Code Sixty days The date of abatement.' for an order to set: aside an abatement.

(5) Articles 120 and 121 are applicable to applications made under the Code of Civil Procedure. To understand the very first column of Article 121, thereforee, we have necessarily to refer to the provision of the Code under which the application is made to the making of which Article 121 applies. This provision is Order Xxii Rule 9, which reads as follows:

'(1)Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2). Explanationn : Nothing in this rule shall be construed as barring in any later suit, a defense based on the facts which constituted the gause of action in the suit which had abated or had been dismissed under this Order.'

The limitation of 60 days is made available for the making of the application under sub-rule (2) of Rule 9 of Order XXII. there under 'the plaintiff. .. ... may apply for an order to set aside the abatement or dismissal'. The abatement has occurred in the present case on the expiry of 90 days from the date of the death of Mai Dayal. The application by the Union of India under Rule 9(2) is for setting aside the said abatement. How is the application to be sustained The answer is given by sub-rule (2) of Rule 9 in the following words : 'and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement'. For the success of the application it is necessary to prove that the applicant was prevented by sufficient cause 'from continuing the suit'. The duty to continue the suit arose at the moment the suit or the appeal abated. 'The effect of Rule 9(2) is to place the burden of proof on the applicant to show that there was sufficient cause for his failure to continue the suit. This failure commenced from the moment of the abatement of the suit. The sufficient cause must also exist from the moment of the abatement onwards.

(6) Thus, though Article 121 gives a period of 60 days to make the application for setting aside the abatement from the date of the abatement it says that the limitation would be available only for making the application under the Code of Civil Procedure which here means sub-rule (2) of Rule 9 of Order XXII. The effect of reading Rule 9(2) with Article 121 is that unless the burden of proof is discharged by the applicant to show the existence of sufficient cause under Rule 9(2) his application will not succeed even though it may be filed within the period of limitation of 60 days.

(7) This interpretation of reading Article 121 with Order Xxii Rule 9(2) is confirmed by sub-rule (3) of Rule 9 which expressly applies the provisions of section 5 of the Indian Limitation Act: to applications under sub-rule (2). Section 5 of the Limitation Act reads as follows:

'Any appeal or any application, other than an application under any of the provisions of Order Xxi of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanationn. The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.'

The applicability of section 5 of the application under Rule 9(2) arises in this way. Under Article 120 a period of limitation of 90 days was available for the making the legal representatives of the deceased parties to the suit or appeal to prevent the suit or the appeal abating at the end of 90 days. It is because that period has expired that the following words of section 5, namely, 'any application .... .may be admitted after the prescribed period if the applicant satisfies the court that he had sufficient cause for not making the application within such period' have to be read with Article 120 of the Limitation Act. The application to which the period prescribed by Article 120 applies is the application to be made under Order Xxii, Rule 4, sub-rules (1) and (3) of which are as follows:

(1)Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.'

It is because the appellant did not make an application under sub-rule (1) that the appeal abated under sub-rule (3). This abatement took place after the expiry of the period of limitation prescribed by Article 120. The application by the appellant after the expiry of the limitation period fixed by Article 120 has to have a two-fold prayer, namely, (a) to set aside the abatement of the appeal which has occurred due to the expiry of the limitation prescribed by Article 120, and (b) thereafter to join the legal representatives of the deceased respondent as parties to the appeal. This application is made under Rule 9(2). It is because this application is made after the expiry of the period of limitation prescribed by Article 120 that section 5 of the Limitation Act applies to it. To remove any doubt as to the application of section 5, sub-rule (3) of Rule 9 expressly applies it to the application made under sub-rule (2) of Rule 9.

(8) The result is that any impression created by reading Article 121 in isolation that the application governed by it may be filed at any time within the period of 60 days has to be controlled and qualified by reading the provisions of Rule 9(2) and 9(3) of Order Xxii, Civil Procedure Code, and section 5 of the Limitation Act with it. It would then be seen that while an application governed by Article 121 may be made at any time during the period of 60 days, the delay in making the said application from the very first day out of these 60 days has to be explained day by day as being due to sufficient cause. In the absence of such Explanationn the application would not be tenable under Rule 9(2) because it would not fulfill the conditions about the existence of sufficient cause required by rule 9(2). It would then be no argument to say that the application is presented before the expiry of the period of 60 days. Such application would not also comply with the requirements of section 5 of the Limitation Act. This would be an additional reason why the application would not be tenable even though it may be within the limitation.

(9) The application made under Rule 9(2) which fails to show the existence of sufficient cause for not continuing the suit from the moment of the abatement, would thereforee fail on the following grounds :

(A)Sufficient cause for failure to continue the suit from the moment of the abatement is not shown. (b) The benefit of section 5 of the Limitation Act is not available because no sufficient cause existed and to that extent the application would not be saved from the bar of limitation, namely, the expiry of the period of limitation prescribed under Art. 120. (c) It is settled law that while no diligence is required to be exercised by the applicant when the period of limitation under Article 120 is running the applicant has to explain the delay in making the application after the expiry of the period of limitation when he seeks the help of section 5 for the condensation of such delay. Such delay has to be explained from day to day and even if the delay is only of one day (Ramlal Motilal and Chhotelal v. Rewa Coalfields Ltd. : [1962]2SCR762 . (f) The same pattern for invoking section 5 is observed when the application for setting aside abatement is also made after the expiry of the period of limitation of 60 days if order Xxii Rule 4(5)(b) is construed to apply to such application. But the mere fact that section 5 can be invoked after the limitation in Article 121 has expired does not mean that it does not have to be invoked after the limitation under Article 120 has expired. The application of section 5 is independently provided in two distinct cases, namely (i) to an application under Rule 9(2) by virtue of Rule 9(3) after the expiry of the period of limitation prescribed by Article 120, and (ii) to an application under Order Xxii Rule 4(5) after the expiry of the period of limitation prescribed by Article 121. Both these provisions have to be given effect to. The existence of the second provision does not dispense with the necessity to comply with the first. (f) The application would fail for the above reasons even though it may be formally within limitation under Article 121. The above legal position may be stated in the form of following proposition: ( 1 ) A suit which is between living parties cannot proceed when a party dies in the same way as it could before the death. A dead person can neither continue the suit nor can a suit proceed against a dead person. Under Article 120 of the Schedule to the Limitation Act. a period of 90 days is prescribed for making legal representatives of such a deceased person a party to the suit. The period runs from the date of death of the deceased party. (2) The effect of the death on the litigation is not immediate. A breathing time of 90 days is given for making an application under Article 120. During this period of 90 days there is no compulsion that the application for bringing on record the legal representatives must be made as early as possible. Even if the application is filed on the last day of limitation it would be as good as an application filed on the first day when the limitation started running. (3) The reason is that under Order Xxii Rule I, Civil Procedure Code the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. When the right survives the legal representatives are given time to continue the suit by making the necessary application within this period of 90 days. The procedure for making such an application when either a plaintiff or a defendant dies is set out in Rules 2, 3 and 4 of Order Xxii, Civil Procedure Code None of these provisions requires that such an application must be made as early as possible or that any delay in making such application within 90 days should be explained as for sufficient cause. The only requirement of these applications is that only a legal representative of a deceased party can be brought on record. When an application is made within limitation, early or late, the only test can be about the merits of the application, that is to say, whether right to sue survives or whether the applicant is a legal representative or not. (4) It is true that Rule 3(2) and Rule 4(3) state that the failure to make an application within 90 days for making legal representatives parties to the suit would result in the abatement of the suit. The abatement would come about simply because the application is not made within the limitation of 90 days. It is not material whether the applicant was diligent or not within those 90 days in making the application. For, be could have made the application even on the last day of the limitation. The question of diligence becomes relevant only when the limitation of 90 days expires resulting in the abatement of the suit and the application for setting aside the abatement has to be made. Such an application would pray for not only the setting aside of the abatement, but also making the legal representatives parties to the suit. In view of Rule 9(2) it is in such application that the averment is to be made that the 'applicant was prevented by any sufficient cause from continuing the suit'. Reading the words 'continuing the suit' with the words 'where within the time limited by law no application is made' used in Rules 3(2) and 4(3), it becomes apparent that the averment of the applicant must amount to saying that he was prevented by sufficient cause from continuing the suit by making the requisite application within the period of 90 days and, thereforee. he was entitled to have the abatement set aside. Further, the period of limitation for setting aside abatement is 60 days. The difference between the period of 90 days prescribed by Article 120 and period of 60 days prescribed by Article 121 is significant. The period under Article 120 is available to the applicant without having to show any diligence if the application is made to make the legal representatives parties to the suit within 90 days after the death of the deceased party. But as soon as the period of 90 days, expires, the suit abates and thereafter the applications for making the legal representatives parties as also for setting aside the abatement has to be sustained by averments of sufficient cause which prevented the continuance of the suit by making the application within 90 days and also which entitled the applicant to the setting side of the abatement. Due to this difference between the situations before the abatement and after the abatement of the suit. the applicant has to explain the delay in filing the applications for making the legal representatives parties and for setting aside the abatement on the ground of sufficient cause. The delay of every day has to be explained. This is how it comes about that no part of the period of limitation of 60 days prescribed by Article 121 is available to the applicant without showing to the satisfaction of the court that each day of the delay within the 60 days was due to sufficient cause. The applicant can present an application under Article 120 on the last day of the limitation without any averment of sufficient cause, but an application for setting aside the abatement presented even on the first day of the limitation under Article 121 must make such an averment'. It would follow that the sufficient cause for not continuing the suit within the time limited by law for filing an application for making legal representatives parties to the suit may exist either for the whole or for a part of the limitation period of 90 days. Even if it did not exist till the last day of limitation, but came into being during the last day of limitation, a legal basis for making the application under Rule 9(2) of Order Xxii would be made out. On the contrary, sufficient cause must exist from the very first day of the period of limitation of 60 days prescribed by Article 121. (6) In Union of India v. Ram Charan, : [1964]3SCR467 , a three-Judge Bench of the Supreme Court has considered the question as to whether ignorance of the death of the deceased party is a sufficient cause for delay in making the application. After carefully reading the comprehensive discussion, it would appear that following positions emerge: (i) On the one hand, it is not the duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party. (ii) On the other hand, the mere fact that the appellant came to know of the respondent's death belatedly will by itself not justify his application for setting aside the abatement. (iii) The middle position that emerges in paragraph 12 of the judgment is that the applicant had to allege and establish facts which, in the view of the Court, would be sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged, none can be established and in that case the court cannot set aside the abatement. In paragraph 13 it is stated that the applicant must allege why he did not know the death of the respondent earlier or why he could not know it' earlier despite his efforts. His mere allegation that he was ignorant of the death of the respondent cannot be regarded as a sufficient cause. The correctness of the reasons given by the applicant can be challenged by the other party.

(10) These observations were intended t6 keep a balance of justice between the parties. On the one hand, the court was anxious that the main case should be decided on merits and should not go off a tangent by a side wind as it were due to abatement. After all a party cannot have any interest in getting his own suit abated by not making an application for the substitution of the legal representatives of the opposite party within time. The provision for such substitution is somewhat technical and though it is necessary to secure the interests of the legal representatives, delay on the part of the plaintiff or appellant should not result in the demise of the main claim without decision on merits. On the other hand, it must also be recognised that in every case it would be open to a party who is guilty of delay due to negligence to argue that there was no reason for him to be negligent as he could not have allowed his main claim to be defeated by his failure to apply for substitution of the legal representatives of the deceased respondent. Accepting such an argument would mean that in every case the court must believe whatever Explanationn is given for the delay. But the anxiety of the court not to allow the merits of the case to suffer due to abatement does not allow it to ignore the obligation of the plaintiff or the appellant to be diligent. The law of limitation itself acts as a hardship but nevertheless it is implemented by the courts because diligence on the part of the parties to litigation has to be enforced by it.

(11) The truth is that while a party would not deliberately delay in taking steps to bring the legal representatives of the deceased opposite party on record often he is not fully aware of the consequences of the delay on his part. He does not realise the importance of diligence. It often happens that all of us in our life delay in taking some action or decision and suffer by such delay. Merely because we have no interest in delaying actions favorable to us does not mean that we are never guilty of such delay. For the same reason, plaintiffs and appellants who are guilty of delay even without being interested in being negligent have to suffer for the consequences of their negligence.

(12) In the Fifty-fourth Report of the Law Commission on the Code of Civil Procedure, 1908 made in February, 1973, the question of Order Xxii Rule 4 and the ignorance of death was considered at pages 194-195. The Commission observed that the question whether the ignorance on the part of one party of such death of other party should be sufficient cause for the condensation of delay in the substitution of legal representatives of the deceased has arisen in several cases in relation to the power of the court to exercise the delay under section 5 of the Limitation Act. The Commission also noted that 'how far ignorance of the death of the party concerned is a sufficient ground would depend on the facts of each case' (Union of India v. Ram Charan, : [1964]3SCR467 ). The Commission then observed as follows:

'It was for the last-mentioned reason that the earlier Commission, in its Report on the Code after discussing the position as above, considered it unnecessary to make an express provision as to ignorance of death as a sufficient ground. At one stage we were inclined to think of a solution whereunder due regard could be had to the fact of ignorance of death, while considering an application under section 5, Limitation Act, for condensation of delay in respect of an application for setting aside the abatement. This could be achieved by the insertion of the following sub-rule in Order 22, rule 4 Where (a) the plaintiff was ignorant of the death of a defendant, and, could not, for that reason, make an application for substitution of the legal representative under this rule within the prescribed period as provided in the Limitation Act, 1964; (b) the suit has. in consequences, abated ; and (c) the plaintiff applies for setting aside the abatement and also for admission of that application after the prescribed period under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within such period; the Court shall, in considering the application under the said section, have due regard to the fact of such ignorance, if provided.'

(13) The amendment of the Code of Civil Procedure in 1976 reproduces the recommendation made by the Law Commission verbatim by adding sub-rule (5) (b) to rule 4 of Order XXII. It would appear that, on the one hand, the amendment has confirmed the view of the Supreme Court in Ram Charan's case that the question whether the ignorance of death would constitute sufficient cause would depend on the facts of each case. That is to say, it is the circumstances of the case which would make the court to believe or disbelieve that such ignorance was really the cause of the delay. It is not thereforee, a proposition of law that ignorance of death must always be the cause for the delay. On the other hand, it is a question of fact whether in a particular case it really explained the delay. It would also appear that the following observation of the Supreme Court in paragraph 9 of Ram Charan's case, namely, 'but it does not mean that the mere fact of the appellant's coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement, that is not the law' could create a doubt as to whether the ignorance of the death of a party would at all be sufficient cause for the condensation of the delay. With a view to remove such a doubt it has now been enacted by amendment that the court shall have due regard to the fact of such ignorance, if proved, in considering the application for the condensation of delay. That is to say, the ignorance of the death, if proved, will have to be considered by the court and if the court is of the view that it has contributed to the delay, then the court would be justified in accepting it as sufficient cause for the condensation of delay.

(14) In the present case, the learned counsel for the Union of India came to know on the 19th January, 1977 not only the fact of the death of respondent No. 1, Mai Dayal but also the names of his two legal representatives. He was also assured of the correctness of these facts when Shri J. P. Gupta, who had appeared for Mai Dayal, also appeared for the legal representatives and applied in the execution proceedings that the legal representatives be allowed to continue the execution. Sufficient cause for not continuing the appeal, thereforee, existed only up to 19th January, 1977 but not beyond that. The Explanationn given for the delay subsequent to that date is not' acceptable because it was not necessary for the learned counsel to obtain instructions from the department in view of the information which had already been obtained. Even the department could not do more than supplying the same information to him. The delay from 19th January, 1977 onwards is not, thereforee, due to any sufficient cause within the meaning of Rule 9(2) of Order Xxii and section 5 of the Limitation Act. The prayers made in the applications for making the legal representatives parties and for setting aside the abatement cannot, thereforee, granted. The applications are, thereforee, dismissed without any order as to costs.

(15) In view of the dismissal of the above applications, the appeal has abated and is also dismissed as such.

T.P.S. Chawla, J.

(16) Although I reach the same conclusion, I arrive there by a different route. I am unable to subscribe to the proposition that 'no part of the period of limitation of 60 days prescribed by Article 121 (of the Limitation Act, 1963) is available to the applicant without showing to the satisfaction of the court that each day of the delay within the 60 days was due to sufficient cause'. No authority gives countenance to such a proposition. At least, I have found none. On the other hand, there are many cases which clearly point the other way. I will content myself by citing just one. It presents a perfect example of the opposite proposition.

(17) That case is Alphonso Hasareth vs. Xavier Dias & others Air 1971 Mys 79. There, in an appeal before the civil judge, the appellant moved three applications simultaneously : the first, to implead the legal representatives of a deceased respondent; the second, to set aside the abatement of the appeal; and, the third, under section 5 of the Limitation Act 'for condensation of delay' in presenting the application for setting aside the abatement. The civil judge held that there was no sufficient cause for condoning the delay and dismissed the third application. In consequence, he held, the other two applications 'did not survive at all'. In fact the application for setting aside the abatement had been filed on the 118th day, i.e., within 150 days of the date of death of the respondent and so it was argued that the application under section 5 of the Limitation Act was 'misconceived' and 'wholly unnecessary'. The High Court said that the civil judge 'fell into an error by overlooking that the application made under section 5 of the Limitation Act did not arise for consideration at all and that what he had to consider was whether the appellant was prevented by sufficient cause from making in time the application for the substitution of the legal representatives........'. If it were the law that even within the 60 days allowed by Article 121 any delay has to be explained, then the decision of the civil judge would have been right.

(18) Leaving the authorities aside, it seems to be contrary to reason that a party should have to explain why he moved an application at a particular point of time within the period expressly allowed by the Limitation Act. Reason suggests that an Explanationn should be required only when the prescribed time has lapsed. If an Explanationn is to be furnished even within the permitted time, there is no purpose in specifying a period of limitation at all. The party applying is in the same position .whether within or beyond the prescribed time. For, afterwards, sufficient cause has, in any event, to be shown under section 5 of the Limitation Act which is made applicable to applications for setting aside an abatement by Order 22 Rule 9(3) of the Civil Procedure Code.

(19) An almost parallel situation occurs when an application is moved to restore a suit or appeal dismissed for default of appearance or to set aside a decree passed ex parte. The period prescribed for such applications is 30 days. No one has ever suggested that the applicant must explain why he moved on the 29th day. The Limitation Act allows him 30 days and he is entitled to that period as of right.

(20) In Ramlal and others vs. Rewa Coalfields Ltd., : [1962]2SCR762 there is a passage which enunciates this very principle. The Supreme Court said :

If the Limitation Act or any other appropriate statute prescribes different periods of limitation either for appeals or applications to which section 5 applies that normally means that liberty is given to the party intending to make the appeal or to file an application to act within the period prescribed in that behalf. It would not be reasonable to require a party to take the necessary action on the very first day after the cause of action accrues. In view of the period of Limitation prescribed, the party would be entitled to take its time and to file the appeal on any day during the said period; and so prima facie it appears unreasonable that when delay has been made by the party in filing the appeal it should be called upon to explain its conduct during the whole of the period of limitation prescribed'.

On general constitutional principles, I would add, that when a party acts within the Scope of a liberty' granted by statute, the court can have no jurisdiction or locus standi to ask any questions.

(21) Suppose that an application for impleading legal representatives is made 95 days after the date of death, and the applicant is able to establish sufficient cause for not applying earlier. Later, say after 130 days from the date of death, i.e., within the 60 days allowed by Article 121, the applicant moves an application for setting aside the abatement, but gives no reason why that application was not moved at the same time as the other. If the application for setting aside the abatement is to be dismissed on the ground that it was filed 15 days after the application for impleading the legal representatives, and the intervening period is not explained, Article 121 of the Limitation Act will be rendered wholly nugatory.

(22) In my opinion, the application for setting aside the abatement in the present case should be dismissed not on the ground that it was made on the 58th day, but on the ground that it does not establish, in the words of Order 22 Rule 9(2), that the appellant was 'prevented by any sufficient cause from continuing the suit', which by Rule Ii, here, means the appeal. The various rules in Order 22 show that, on the death of a party, the procedure for 'continuing the suit' is to implead his legal representatives. Paraphrasing Rule 9(2) in this context, it means, that the person who moves for setting aside the abatement must prove that he was 'prevented by sufficient cause from impleading the legal representatives'.

(23) Thus, it emerges, that in relation to an application for impleading legal representatives, Rule 9(2) performs substantially the same function as section 5 of the Limitation Act. That is probably the reason why section 5 of the Limitation Act of 1908 was not made applicable to applications for impleading legal representatives. The omission becomes all the more significant when one finds that Order 22 Rule 9(3) expressly applies section 5 to applications for setting aside an abatement. Both the Civil Procedure Code and the previous Limitation Act were passed in 1908. Presumably, the draftsman had them before him side by side. He moulded them so as to be complementary to each other, and finding that Order 22 Rule 9(2) achieved the same purpose as section 5 of the Limitation Act, deliberately refrained from applying it to an application for impleading legal representatives as it would have been redundant.

(24) No doubt section 5 of the Limitation Act, 1963 now applies to 'any application', but I do not think this generalisation can alter the scheme of Order 22 or the interpretation of the rules which it contains. Those rules were pre-existing by more than half a century. Despite the amendments of the Code of Civil Procedure in 1976, there is still no rule in Order 22 applying section 5 of the Limitation Act to applications for impleading legal representatives. The contrast with Order 22 Rule 9(3) remains as vivid as before.

(25) Even in the new sub-rule (5) added to Order 22 Rule 4, the application envisaged under Section 5 of the Limitation Act, 1963 is for the admission of a belated application for setting aside an abatement, not one for impleading legal representatives. In other words, the sub-rule is referring to an application under Order 22 Rule 9(3). This is clear from a construction of the sub-rule itself, but any doubt is immediately dissipated on reading the comments of the Law Commission and their draft of the proposed sub-rule in the Fifty-fourth Report. Their purpose was that 'due regard could be had to the fact of ignorance of death, while considering an application under section 5, Limitation Act, for condensation of delay in respect of an application for setting aside the abatement'. Perhaps, the proper place for such a sub-rule was after Order 22 Rule 9(3). However, that does not affect the point that it does not visualise an application under section 5 of the Limitation Act in relation to an application for impleading legal representatives. Moreover, it is not a rule under which any relief can be had or an application made. It merely tells the court to have due regard to the fact of ignorance of death when considering an application under Order 22 Rule 9(3), and that is all.

(26) Although there has been some blurring over the decades. from the earlier cases it is quite apparent that it is the way I am suggesting that Order 22 Rule 9(2) was then understood. In Secretary of State vs. Jawahir Lal Air 1914 All 94(5), whilst dismissing a time-barred application for impleading legal representatives, which it seems contained no Explanationn for the delay, Richards, C. J. said : The remedy of the person who could not make his application within the time allowed by the law of limitation is that provided-by Rule 9 of the order'. Banerji, J., who concurred in declaring the abatement, went on to clarify that 'This order is made without prejudice to any application which the appellant may be advised to make under Order 22 Rule 9 of the Code'. In Shah Muhammad & Another vs. Khan Bahadur Choudhri Karam Uahi & others, Air 1922 Lahore 13(6), though the application for impleading the legal representatives, made out 'of time, stated that 'the appellants only recently came to know of the death', no application for setting aside the abetment was filed. So the court rightly ruled : 'No application for setting aside the abatement has been presented to us and consequently there is nothing further for us to do except to declare that the appeal has abated'.

(27) To Badhu vs. Mt. Naraini 1924 Lah 424 the noteworthy observation is made that an 'application for substitution made after the expiry of the prescribed period must necessarily be considered an application under Order 22 Rule 9(2) of the Code of Civil Procedure'. The same notion pervades the statement in Kirpa Ram vs. Bhagat Chand and others, Air 1971 Mys 79 that 'an application made to bring on the record the legal representatives of a deceased defendant after the time limited by law should ordinarily be treated as an application under Order 22, Rule 9 and granted on proof of sufficient cause for the delay. To an application made after the expiry of the period of limitation Order 22, Rule 4, can have no application because that rule can only relate to an application made within the time limited by law'. Passages to the like effect will be found in Bhartu vs. Udmi & Others Air 1934 Lah 315(9), Firm Gabrulal vs. Court of Wards, Vilaspur Air 1933 Nag 85(10) and Diwan Chand Nirmal Singh and another vs. Bhagwan Chand & others Air 1937 Lah 455(11).

(28) A sentence which accords completely with my comprehension of the law, occurs in Dina Nath vs. Sayad Habib and others Air 1929 Lah 129(12). After staling that an appeal 'automatically' abates if an application to implead the legal representatives of a deceased respondent is made within 90 days from the date of his death, Tek Chand, J., explains : 'The 'appellant can, however, apply under Rule 9(2) to have the abatement set aside within 60 days of the. date of the abatement if he satisfies the court that he was prevented by any sufficient cause from making the application under Rule 4'. This is precisely what I am maintaining.

(29) It is more than a mere coincidence that, frequently, the phraseology used in the cases when dealing with Order 22 Rule 9 is reminiscent of section 5 of the Limitation Act. For example, in Sham Das vs. Mahabir Das & others Air 1933 Lah 916(13) an application to excuse the four days delay' in moving the application for impleading legal representatives was allowed because it was a 'fit case for extending the concession permitted under Order 22, Rule 9, sub-rule (2)'. I think, the head-note got the ratio of that case right when it said 'it was a fit case in which time should be extended under Order 22 Rule 9'.

(30) A case which corroborates my view by proving it in reverse is Ata-ur-Rehman & others vs. Mashkur-un-Nisa & others Air 1926 Lah 474(14). There, it was held, that since the application for impleading legal representatives did not disclose any reasonable cause for the delay, 'it was not possible to treat the application as being one under Order 22 Rule 9'.

(31) Turning to the case in hand, and giving effect to my concept of Order 22 Rule 9, I would dismiss the application to set aside the abatement because the delay between 19th January 1976 and 7th February 1976 in moving the application for impleading the legal representatives, and so 'continumg', the appeal, has not been satisfactorily explained. The application for impleading the legal representatives must, thereforee, be dismissed for the simple reason that it is barred by time.


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