S.N. Andley, J.
(1) These two Civil Miscellaneous petitions (Nos. 795 & 796 of 1969) have been filed in Regular First Appeal No. 189 of 1969. The appeal has been filed by the Union of India against the decree dated December 10, 1968, of the Additional District Judge, Delhi, upon a reference under section 18 of the Land Acquiition Act, 1894.
(2) The appeal was filed on April 9, 1969, and was admitted on May 20, 1969. The respondents to the appeal are Rameshwar Nath and Hira Lal who hold an undivided 1/4th share in equal shares in Khasra Nos. 1 to 6, 7/1 and 7/3 situate in village Ali.
(3) Civil Miscellaneous No. 795 of 1969 has been filed to bring on record the legal representatives of Hira Lal (respondent No. 2) who died on June 5, 1969, and to set aside the abatement of the appeal. Civil Miscellaneous No. 796 of 1969 has been filed for condensation of delay in filing C.M. No. 795 of 1969.
(4) The facts pertaining to the application for condensation of delay are set out below in chronological order:-
20-5-69Appeal was admitted.
5-6-1969Hira Lal, respondent No. 2, died.
3-9-1969Time for bringing on record the legal representatives of the deceased respondent as prescribed by Article 120 of the Limitation Act, 1963, expired.
10-9-1969 The appellants allege that their counsel in the appeal came to know of the death of respondent No. 2.
11-9-1969 The appellants' counsel in the appeal intimated the appellants about the death of respondent No. 2 where after the appellants allege that efforts were made 'to find out the names, addresses and relationship of the legal representatives of the deceased respondent and this could be known on 18-10-69 when the Land Acquisition Collector communicated the particulars of the legal representatives to the Deputy Adviser, Govt. of India, Ministry of Law, New Delhi'.
22-10-1969 The particulars were received by the counsel of the appellants in this appeal but these papers are alleged to have got mixed up with other papers in the office of the counsel for the appellants.
2-11-1969 Time for setting aside abatement prescribed under Article 121 of the Limitation Act, 1963, expired.
21-11-1969 The papers are alleged to have been traced.
24-11-1969 The applications and affidavits were received by the appellants' counsel in the appeal.
25-11-1969 The applications and affidavits were filed in this Court.
The applications are strongly opposed on behalf of the legal representatives of the deceased respondent and by respondent No. 1 who can tend that there is no Sufficient cause either For condoning the delay in making the application for setting aside the abatement of the appeal or for condoning the delay in making the application for bringing the legal representatives of the deceased respondent on the record.
(5) The first question that arises is whether there is sufficient cause for condoning the delay in filing the application for setting aside the abatement. A prayer for condensation for setting aside the abatement which should have been made on or before November 2, 1969. was actually made when the above applications were filed on November 25. 1969. There is thereforee, a delay of 23 days in applying for setting aside the abatement. The allegation supported by an affidavit is that although the particulars of the legal representatives had been received by the counsel for the appellants in this appeal on October 22, 1969. the papers got mixed up with the other papers in the office of the counsel and were traced only on November 21, 1969. where after the applications and affidavits were received on November 24. 1969. and were filed in this Court on the day following. We are satisfied that there is sufficient cause for condoning the delay in making the application for setting aside the abatement.
(6) We have then to consider whether the abatement of the appeal should be set aside. Sub-rule (2) of rule 9 of Order 22 of the Code of Civil Procedure provides that abatement can be set aside if it is prov- ed that the plaintiff (which must include the appellant) was prevented by any sufficient cause from continuing the suit (which must include appeal). In other words, the mere filing of an application for setting aside the abatement within the time prescribed by Article 121 of the Limitation Act. 1963, would not entitle the plaintiff to an automatic order of setting aside the abatement. He must further prove that he was prevented by sufficient cause from continuing the suit (or appeal) or, in other words, he must prove sufficient cause as to why he was prevented from applying for bringing the legal representatives on the record within the time-prescribed by Article 120 of the Limitation Act, 1963.
(7) We have, thereforee, to examine whether the appellants in this case have proved that there was sufficient cause which prevented them from applying for bringing the legal representatives of the deceased respon- dent on the record on or before September 3, 1969. It cannot be doubted that time begins to run from the date of death of the respondent and not from the date of knowledge of such death. At the same time it is not to be expected of a plaintiff or appellant to sit,as it were, on the doorstep of the respondent after instituting his action. We will, thereforee. take it that the appellants have proved in this case that they had no reason to know about the death of the deceased respondent prior to September 10, 1969 as alleged by them. The question is whether after having this knowledge they took steps diligently and expeditiously so as to entitle them to say that there is sufficient cause for them to exclude the period up to October 22, 1969, when they furnished the particulars to their counsel in this appeal. All that is alleged by the appellants is that 'efforts were made to find out the names, addresses and relationship of the legal representatives of the deceased respondent and this could be known on 18-10-69 when the Land Acquisition Collector communicated the particulars of the legal representatives to the Deputy Adviser, Govt. of India, Ministry of Law. New Delhi.'
(8) It has been observed in : 3SCR467 in ie :- Union of India v.. Rani Charun and others that,-
'THEexpression 'sufficient cause' is not to be liberally construed either because the party in default was the Government or because the question arose in connection with the impleading of the leagal representatives of the deceased respondent. The Court should not readily accept whatever is alleged to explain away the default. The delay in making the application should not be for reasons which indicate the negligence of the party making the application in not taking certain steps which he could have and should have taken. The court has to be satisfied that there were certain valid reasons for the applicant not knowing the death within a reasonable time. The bare statement of the applicant is not enough.'
It is also well established that each days' delay has to be explained by giving reasons thereforee. The averment made in the application for condensation of delay which is supported by the affidavit of Bishan Singh.. Land Acquisition Collector. Delhi, is merely this that efforts were made- after acquiring knowledge of the death of respondent No. 2 on 10-9-1969 or thereabout. The nature of the efforts is not disclosed nor the details of the steps taken for the ascertainment of the particulars of the legal representatives have been stated in the petition. A bare averment that efforts were made is not enough. It seems to us that the Land Acquisition Collector who swore the affidavit took it for granted that he has only to state that efforts were made to entitle him to the condensation of delay and this seems to be the normal pattern of affidavits which have come up before us in other cases also which are filed on behalf of the Union of India. Such averment cannot be taken any note of and we are of the view that there is complete absence of particulars to enable us to say that there was sufficient cause for condoning the delay in making the application for bringing on record the legal representatives of the deceased respondent. We are, thereforee, of the view that the appellants have completely failed in proving to this Court that there was any sufficient cause entitling them. to the setting aside of the abatement of the appeal.
(9) The next question is whether the appeal has abated only so far as the deceased respondent is concerned. Reference may be made to the decision of the Supreme Court : 2SCR636 in re: Slate of Punjab v. Nathu Ram where it has been observed that it is not a correct statement to say that the appeal abates against the surviving co-respondent but the effect of the abatement of the appeal against one of several respondents is that the appeal against the co-respondent can not proceed in certain circumstances and has, thereforee, to be dismissed. It has been further observed that ordinarily the considerations which weigh with the Court in deciding upon the question whether the appeal can proceed against the surviving co-respondents are whether the appeat between the appellants and respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The Supreme Court has observed that
'THEtest to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and thereforee which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent ; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.'
The Supreme Court has observed in : 3SCR451 in re : Pandit Sri Chand and others v. M/sJagdish Parshad Kishan Chandandothers that the above three tests are not cumulative tests and even if one of them is satisfied, the Court may, having regard to all the circumstances. hold that the appeal has abated in its entirety. We are here concerned with the first test, namely, whether the decree against the surviving respondent if the appeal succeds, will be contradictory to the decree which has become final with respect to the same subject matter between the appellants and the deceased respondent.
(10) In the present case, the two respondents were joint and undivided owners of the same piece of land and it follows that if the appeal is allowed, it will result in the decree of this Court being contradictory to the decree appealed against with respect to the same subject matter. The appeal cannot thereforee, proceed even against the surviving res- podndent and abates completely.
(11) Aced with this difficulty, the appellants contend that Order 22 of the Code of Civil Procedure is not applicable to appeals against decrees passed by the Court upon a reference under section 18 of the Land Acquisition Act, 1894. Reliance is first placed on an unreported Division Bench decision dated January 31, 1969 of this Court in R.F.A. No. 178 of 1962. In this case reference is made to : AIR1964MP171 in re : AbdulKarim v. State of Madhya Pradesh (4) which was cited and it is stated that the attention of the learned Judges (I.D. Dua, C.J. and S. Rangarajan J.) was not invited to any contrary decision. The learned Judges then go on to say that independently of this decision, they were inclined on the facts and circumstances of that case to give to the appellants benefit of section 5 of the Limitation Act. These observations cannot by any means be taken to be an acceptance of the decision of of the Madhya Pradesh High Court referred to above and to be a decision on the question regarding the applicability of Order 22 of the Code of Civil Procedure to an appeal like the present.
(12) Reference is then made by the appellants to the aforesaid Madhya Pradesh decision where the learned Chief Justice has observed that for the purpose of Order 22 of the Code of Civil Procedure a suit must be taken as one meaning a suit instituted by the presentation of a plaint and that the provisions of Order 22 cannot be applied to proceedings under section 18 of the Land Acquisition Act. It has further been observed that section 53 of the Land Acquisition Act has applied. the Code of Civil Procedure to proceedings under section 18 of the Land Acquisition Act subject to the limitation that the provisions of the Code intended to be applied must not be inconsistent with anything contained in the Act. The learned Chief Justice has observed that it is not necessary to show inconsistency that there should be an express provision to the contrary in the Act itself and it would be enough if the applicability of a provision of the Code to any proceedings before the Court under the Act would be incomptible with the nature of the proceedings. One of the reasons advanced is that the Court to whom a reference is made under section 18 of the Land Acquisition Act has to make an award under section 26 of this Act, no matter whether the person at whose instance the reference has been made appears or fails to appear before the Court or fails to produce evidence in support of his objection and that there is no question of any dismissal or abatement of the reference proceedings.
(13) This case was noticed by the Gujarat High Court in the decision reported in A.T..R. 1967 Gujarat 118 in re : Alihusain Abbasbhai and others v. Collector, Panch Mahals. (5) The learned Chief Justice has not followed the Madhya Pradesh decision. He has observed that there is nothing in the Land Acquisition Act which is directly inconsistent with Order 22 of the Code of Civil Procedure and, thereforee, this Order would apply to reference proceedings by virtue of section 53 of the Land Acquisition Act which makes the provisions of the Code applicable to all proceedings before the Court under the Act unless such provision in the Code is inconsistent with anything contained in the Land Acquisition Act. It has further been observed:-
'THEnature of proceeding under S. 18 need not necessarily terminate with an award or determination of compensation. The reference is not different from an ordinary civil proceeding whence the private party in the position of a plaintiff claims extra compensation and the Collector defends it. If the private party fails to appear at the hearing of the proceeding the reference must by force of 0-9, R. 8 be dismissed for want of appearance and evidence in support of the claim. Since the right to claim additional compensation devolves on the heirs of the private party on his death the privisions of 0-22, R.3 are applicable.A reference to the earlier Land Acquisition Act of 1870, S. 36 which provides for application of the Code of Civil Procedure on topics like death of parties' also indicate that the provisions of Order 22, R. 3 are applicable to a reference proceeding under S. 18 of the Act.'
However, the learned Chief Justice has held that Article 176 of the Limitation Act, 1908, (equivalent to Article 120 of the Limitation Act, 1963) is not applicable to a reference proceeding under section 18 of the Land Acquisition Act because the applicant in such a proceeding is not a plaintiff and the proceeding is not a suit within the meaning of this Article and, thereforee, there is no period of limitation prescribed for bringing on record the legal representatives of an applicant in so far as reference proceedings are concerned.
(14) Both these decisions relate to the applicability of Order 22 of the Code of Civil Procedure to reference proceedings under section 18 of the Land Acquisition Act and not to appeals which are filed in the High Court against the decree of the Additional District Judge in such proceeding. We are concerned with the latter question.
(15) The right to appeal to the High Court from the decree passed by the Additional District Judge upon a reference under section 18 of the Land Acquisition Act, 1894, is conferred by section 54 of this Act which, inter alia, provides that subject to the provisions of the Code of Civil 206 Procedure. 1908, applicable to appeals from original decrees and not withstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court. It is, thereforee, contended on behalf of the appellants that this appeal is not an appeal under the Code of Civil Procedure and, thereforee. the provisions of Order 22 of the Code will not apply. This contention has no force. A similar question arose before the Supreme Court in re : Vidyacharan Shukla v. Khubchand Baghel and others : 6SCR129 . In this case an appeal, was filed in the High Court under section 116A of the Representation of the People Act. 1951. and the question was whether such an appeal is an appeal under the Code of Civil Procedure. The majority of the learned Judges (Sinha, C.J.: K. Subba Rao and N. Rajagopala AyyangarJJ.) held that though the right of appeal isconfei-J-ed by section 116A of the Representation of the People Act. 1951. and it is by virtue thereof that the appeal was filed in the High Court, it is still an appeal 'under the Code of Civil Procedure. 1908. to the High Court.' was observed that to attract Article 156 of the First Schedule to the Limitation Act, it was not necessary for an appeal to be an appeal under the Code of Civil Procedure, that the right to prefer the appeal should be conferred by the Code of Civil Procedure and that it was sufficient if the procedure for the filing of the appeal and the powers of the Court for dealing with the appeal when filed are governed by the Code. In view of this decision this appeal has to be treated to be an appeal under the Code of Civil Procedure and if it is so treated, there can be no doubt that the provisions of Order 22 of the Code of Civil Procedure will apply.
(16) A question similar to the one which was dealt with by the Madhya Pradesh and Gujarat High Courts came up before the Punjab High Court and the decision is reported in I.L.R. 1963(2) Pun 442 in re : Phuman and others v.The State of Punjab and others (7). The Division Bench held:-
(1)that the provisions of Order 22 of the Code would apply to all proceedings before the Court hearing a reference under section 18 of the Land Acquisition Act by virtue of section 53 of this Act as there was no specific provision in this Act says which that the principles of abatement would not apply to proceedings before the Court under the Act :
(2)that there was no force in the argument that the Court hearing the reference was bound to give an award ;
(3)that legal representatives of the deceased claimant must be brought on record within the lime limited by law; and
(4)that for the purpose of the Indian Limitation Act a reference under section 18 of the Land Acquisition Act is treated as a suit and the applicant is to be regarded as a plaintiff and the Government as a defendant.
To the extent that the Punjab Division Bench has held that the application for bringing on record the legal representatives of the deceased claimant must be made within the lime prescribed by Indian Limitation Act, it is in conflict with the Gujarat view referred to above, in our view, the Punjab view that the provisions of Article 176 of the Indian Limitation Act. 1908. are applicable to a reference proceeding under section 18 of the Land Acquisition Act, is preferable to the view taken in the afoeresaid Gujarat decision but we do not express any final opinion on this question as it does not arise before us and we have not had the benefit of a full argument on this question.
(17) In view of the Supreme Court decision in Vidyacharan Shukla's case we cannot but hold that an appeal against the decree of the Court upon a reference under section 18 of the Land Acquisition Act, 1894, is an appeal under the Code of Civil Procedure and the provisions of Order 22 of the Code apply to such an appeal. We further hold that the Limitation applies to such an appeal.
(18) For these reasons, we dismiss both the Civil Miscellaneous applications and hold that the appeal has abated in its entirety. Accordingly, the appeal is also dismissed as having abated. There will be no order as to costs.
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