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Savitri Devi and anr. Vs. R.S. Bindra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal Nos. 797, 878 and 879 of 1972 and Regular First Appeal No. 153D of 1963
Judge
Reported inILR1973Delhi938
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 4; Limitation Act, 1963 - Sections 5
AppellantSavitri Devi and anr.
RespondentR.S. Bindra and ors.
Advocates: R.L. Aggarwal and; B.K.S. Charan, Advs
Cases ReferredUnion of India v. Ram Charm
Excerpt:
limitation - condensation of delay - section 5 of limitation act, 1963 - application for condensation of delay in bringing legal representatives of respondent - appellants purdahnashin women - death of respondent came to knowledge only after receipt of counsel's letter - addresses of legal representatives collected after such intimation - sufficient cause for delay - delay in filing application condoned. - - (8) that there should be sufficient cause for the delay, that the delay should be bona fide and that delay for every day is to be explained are well established principles. ram charm [1964]3scr467 ,(6)and lachhmi naram and another n......1972. (3) in the mean time the appellants filed c.m. 787 of 1972 for bringing on record the nine legal representatives of r.s. bindra, deceased respondent which included his widow respondent no. 4 who is already on the record. in this application it was stated that information about the death of r.s. bindra, respondent came to the knowledge of the counsel for the appellants on august 30, 1972 when a copy of c.m. no. 797 of 1972 was served upon him, that the appellants came to know about such death only on september 8, 1972whenthey were contacted by their counsel, that thiereafter and with great difficulty the appellants ascertained the names and addresses of the heirs and legal representatives of the deceased respondent on september 13, 1972 and filed this application on september 14,.....
Judgment:

S.N. Andley, C.J.

(1) This order will dispose of C.Ms. 797, 878 and 879 of 1972.

(2) Respondent No. 1, R.S. Bindra, husband of respondent No. 4, Ravindra Kaur Bindra, died on March 16, 1971 at Bhuj as the result of an accident. Respondents kept quite about the death and, on August 30, 1972 filed C.M. 797 of 1972 dated August 10, 1972 containing the intimation about his death and contending that the appeal had abated. It was further contended that the said abatement could not be set aside and, thereforee, the acceptance of the appeal 'if it so happens, would imply that there would be two inconsistent decrees; one decreeing the suit in favor of the plaintiffs/appellants and the other dismissing the suit against the heirs of Shri R.S. Bindra who represent him.' Admittedly advance copy of this application was received on August 30, 1972 by Mr. Daya Krishan, Advocate, for the two appillant ladies who are stated to be Purdahnashin. Presumably, there was some defect in. this application which, according to the endorsement of the Deputy Registrar of this Court, was refiled on September 20, 1972.

(3) In the mean time the appellants filed C.M. 787 of 1972 for bringing on record the nine legal representatives of R.S. Bindra, deceased respondent which included his widow respondent No. 4 who is already on the record. In this application it was stated that information about the death of R.S. Bindra, respondent came to the knowledge of the counsel for the appellants on August 30, 1972 when a copy of C.M. No. 797 of 1972 was served upon him, that the appellants came to know about such death only on September 8, 1972whenthey were contacted by their counsel, that thiereafter and with great difficulty the appellants ascertained the names and addresses of the heirs and legal representatives of the deceased respondent on September 13, 1972 and filed this application on September 14, 1972. It was contended that deceased respondent had never claimed any right, title or interest 'n the plot of land which was in controversy in the suit, that his widow, respondent No. 4, who was already on the record sufficiently represented his estate and that although it was not necessary to implead the heirs and legal representatives of the deceased respondent by bringing them on the record, it was prayed that they be brought on the record in place of the deceased respondent to obviate and avoid all objections. This application was returned by the office of this Court on September 25, 1972 with two objections. The only material objection with which we are concerned was that the office of this Court required the appellants to file an application for condensation of delay. This application was presented again without any application for condensation of delay on the ground that the appellants' knowledge of death of the deceased respondent having come about on September 8, 1972 the application was within time. The office did not agree with this remark and returned the application to the appellants again on October 24, 1972 to be filed within a week and it was than that the appellants filed C.M. No. 879 of 1972 on November 3, 1972 for condensation of delay to obviate the objections of the office of this Court contending at the same time that such an application was not necessary. C.M. No. 878 of 1972 was also refiled on November 3, 1972 after the expiry of one week allowed by the office.

(4) Although the counsel for the appellants argued that the deceased respondent was a proforma respondent as the Issue as to possession of the plot of land in dispute was concerning only respondents Nos. 3 and 4 but he abandoned the argument for the reason that this Bench may not express an opinion on this aspect of the matter because of the pendency of the appeal.

(5) The appellants have also argued that inasmuch as the widow of the deceased respondent is already one of the respondents in the appeal. being respondent No. 4, there is no question of abatement of the appeal. Reliance is placed on Mahabir Prasad v. Jage Ram and others : [1971]3SCR301 (1) where it was observed,-

'WHERE in a proceed'ng a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in this behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will not abate.'

(6) This is clear authority for the argument advanced on behalf of the appellants. In a Division Bench judgment of this Court in C.Ms. Nos. 972 & 973 in S.A.O. No. 6 of 1968 in re: Kedar Nath and another v. Smt. Mohni Devi and others decided on August 9, 1972 the aforesaid decision of the Supreme Court and another decision of the Supreme Court in Ram Dass and another v. Deputy Director of Consolidation Ballia and others : AIR1971SC673 were followed. We, thereforee, hold that respondent No. 4, widow of the deceased respondent being already on the record, there is no question of the abatement of the appeal even if the present application for impleading respondent No. 4 and the other legal representatives of the deceased respondent was not made within the period of limitation prescribed by the Limitation Act.

(7) Alternatively, it is argued by the appellants that there was sufficient cause for condoning the delay in mailing the application for setting aside the abatement and bringing the heirs and legal representatives of the deceased respondent on the record. We will now examine this aspect of the matter. it is true that under the Limitation Act, limitation starts to run from the date of death and not from the date of knowledgs of the death. The contention cf the appellants that they had knowledge of the death on Septembers, 197? and having made the application for bringing on record the legal representatives of the deceased respondent within ninety days of this date, the question of limitation does not arise is without substance. The starting point of limitation is the date of death and no other. The question, thereforee, is whether there was sufficient cause for delay in filing the application for bringing on record the legal representatives of the deceased respondent and the application for condensation of delay in the circumstances of this case. The averment that the appellants are Purdahnashin ladies is not denied. The appellants belong to Delhi while the deceased respondent died at Bhuj. No connection is set up by the respondents between the appellants and the deceased respondent which would lead to the conclusion that the appellants were aware of the death of the respondent or its date. On the bases of The State of Uttar Pradesh v. Nauratan Singh : AIR1968All255 , (3) it is contended by the respondents that a mere allegation that the appellants did not come to know of the death of the respondent is not enough. In fact it was seriously contended by the counsel for the respondents that the appellants should have kept on writing letters either to the deceased respondent or his friends to ascertain the state of his health. This contention is without force because a litigant is not expected, during the period when the litigation is pending, to, as it were, sleep on the door-step of the opposite party to keep track of his state of health. Nothing has been pointed out by the respondents except an argument at the bar that the death of the deceased respondent was reported in the newspapers to show that the appellants had knowledge of his death earlier than August 30, 1972. In the circumstances of this case where the appellants are Public Witness dahnashin ladies. where there is no other contact between the parties and where the respondent died at a great distance from the place of residence of the appellants, we hold that a mere averment about their knowledge of the death on August 30, 1972 is enough.

(8) That there should be sufficient cause for the delay, that the delay should be bona fide and that delay for every day is to be explained are well established principles. See Jagar and others v. Mst. Natlw and others (4), Esam Sk. and others v. Sattar Mullick and others : AIR1972Cal141 , Union of India v. Ram Charm : [1964]3SCR467 , (6)and Lachhmi Naram and another N. Mangilal and another . (7) At the same time it has been held that section 5 of the Limitation Act should be construed liberally so as to do substantial justice between the parties. See Ramlal and otlwrs v. Rewa Coalfields Ltd. : [1962]2SCR762 , (8) and Prem Nath v. M/s Kaudoomal Rikhiram and others .(9) In the l'ght of these principles, we have no doubt in our mind that there was sufficient cause for delay in making the application for bringing the legal presentatives of the deceased respondent on the record and for setting aside of the abatement and for condensation of delay. It is reasonable to assume that the counsel for the appellants would have taken some time in communicating with his clients when he was served on August 30, 1972 with C.M. No. 797 of 1972 filed by the respondents and in their ascertaining the names and addresses of the legal representatives of the deceased respondent. Fourteen days is not an unreasonable period for these mitteis. The non-filing of the condensation application as asked for by the office of this Court or the non-refiling of the application within a week as required by the office of this Court are also not such circumstances in the facts and circumstances of this case so as to induce us to hold that there was no sufficient cause for the delay in making the applications or that each day's delay has not been adequately explained. In our opinion, there was such sufficiant cause. thereforee, even on the alternative argument we hold in favor of the appellants.

(9) In the result C.M. No. 797 of 1972 filed by the respondents is dismissed and C.Ms. 878 and 879 of 1972 filed by the appellants are allowed. There will be no order as to costs.

(10) In view of our conclusion, it is not necessary for us to determine the point raised by the respondents that if the legal represnetatives of the deceased respondent are not brought on the record and if the appeal is decided in favor of the appellants, there are likely to be inconsistent decrees.

(11) C.M. No. 880 of 1972 may now be listed for orders.


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