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Chandu Vs. Hardayal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Appeal No. 110 of 1969
Judge
Reported in1980WLN(UC)445
AppellantChandu
RespondentHardayal and ors.
DispositionAppeal dismissed
Cases ReferredIn Tern v. Board of Revenue
Excerpt:
.....5--fact of death known when intimated by counsel is not sufficient cause under section 5--legal representatives of respondents no. 2 & 3 cannot be brought on record after expiry of limitation--held, it is not possible for court to dead with appeal in absence of legal representatives.;the facts that the appellant had come to know about the death of respondents no. 2 and 3 on the intimation of the learned counsel for the appellant on february 23,1980 when he received a letter from him in my opinion is not a sufficient cause for condoning the delay in making the application. the application under section 5 of the limitation act is, therefore, rejected. for the similar reasons, the application under order 22 rule 9 rule/w 11 cpc is also rejected.;as the legal representatives of..........some where in the month of march, 1976 and that as no application for substitution of their legal representatives has been made till then this appeal abated under order xxii rule 4 and this is liable to be dismissed. this application was made on february 7, 1980.4. on april 11, 1980, learned counsel for the appellant had moved an application, (below the signatures of the counsel, the date mentioned in the application is march 3, 1980,) under order 22 rule 4 rule/w 11 c.p.c. stating that the names of respondents no. 2 and 3 be struck off and in their place, the names of their legal representatives may be brought on record. another application under order 22 rule 9 rule/w 11 c.p.c. was also made on april 11, 1980 (below the signatures of the counsel, the date mentioned is march 3,.....
Judgment:

S.M. Lodha, J.

1. The plaintiff-appellant Chandu instituted a suit for declaration against Hardayal, Moti, Moman and Birbal (respondents No. 1, 2, 3 and 4 respectively) on September 26, 1961 in respect of certain agricultural land. It was prayed that declaration may be made to the effect that plaintiff is the Khatedar of the agricultural land in dispute and that transfer order No. 10 dated May 1, 1961 is null and void. It was further prayed that the defendants be restrained from transferring the lands in suit. Respondent No. 4 (Birbal) admitted the claim of the plaintiff in his written statement dated July 18, 1962. Respondents No. 1 to 3 contested the suit on various grounds. After recording the evidence, the suit was decided in favour of the plaintiff vide judgment dated July 15, 1963 and an appeal was preferred before the Revenue Appellate Authority, Bikaner. The Revenue Appellate Authority Bikaner, vide judgment dated December 22, 1964 set aside the judgment and decree and remanded the case for striking out an issue to the effect 'Whether the plaintiffs father Patu -- Ganpat was adopted to Khumana, who was lawful Khatedar of the lands in dispute' and suggested a reference to be made to the Civil Court and after receiving the finding on the same to decide the case afresh.

2. After remand, an issue as directed by the appellate court was struck and it was referred to Munsif, Bhadra for decision. The learned Munsif decided the issue holding that Patu -- Ganpat was the legally adopted son of Khumana vide his judgment dated September 17, 1965. After the receipt of the finding, the Revenue Court framed an additional issue in accordance with the direction given by the Revenue Appellate Authority. The Revenue Court decreed the suit of the plaintiff declaring that the plaintiff is the sole Khatedar of the lands in dispute and the defendants have no share in them. It further declared that the transfer order No. 10 dated May 1, 1961 is null and void. Against this decision, respondents No. 1 to 3 preferred the appeal and the learned Additional Distt. Judge, Sri Ganganagar accepted the appeal and dismissed the suit. Being dissatisfied with the judgment of the learned Additional (Distt. Judge dated December 6, 1968, the plaintiff has filed this appeal as aforesaid.

3. During the pendency of this appeal, Moti (respondent No. 2) and Moman (respondent No. 3) expired. Learned Counsel for respondent No. 1 submitted an application under Order XXII Rule 10-A CPC stating that respondent No. 2 Moti has expired on May 24, 1979 and respondent No. 3 Moman had expired some where in the month of March, 1976 and that as no application for substitution of their legal representatives has been made till then this appeal abated under order XXII Rule 4 and this is liable to be dismissed. This application was made on February 7, 1980.

4. On April 11, 1980, learned Counsel for the appellant had moved an application, (below the signatures of the Counsel, the date mentioned in the application is March 3, 1980,) under Order 22 Rule 4 Rule/w 11 C.P.C. stating that the names of respondents No. 2 and 3 be struck off and in their place, the names of their legal representatives may be brought on record. Another application under Order 22 Rule 9 Rule/w 11 C.P.C. was also made on April 11, 1980 (below the signatures of the Counsel, the date mentioned is March 3, 1980) stating that the abatement of the appeal on account of the death of respondents No. 2 and 3 may be set adise and the legal representatives of the deceased respondents may -be brought on record. The third application under Section 5 of the Limitation Act was made on April 11, 1980 (below the signatures of the Counsel, the date mentioned is March 3,1980) stating that the delay in filing the application for bringing the legal representatives of the deceased respondents Moti and Moman be condoned as the appellant due to ignorance about the death of Moman as also due to ignorance of law was prevented by sufficient cause from filing the application for bringing the legal representatives on record. All the aforesaid applications are supported by the affidavit of the plaintiff-appellant Chandu. In para 4 of the affidavit, which was filed in support of the application under Section 5 of the Limitation Act, the plaintiff-appellant has stated that during the pendency of the appeal, respondent No. 2 Moti and respondent No. 3 Moman had died, that Moman (respondent No. 3) had died somewhere in the year 1976 or 1977 and Moti had died in the year 1979, that the appellant could not know regarding the death of respondent No. 3 till he was informed by his counsel and that the appellant came to know for the first time regarding the death of respondent No. 3 Moman on February 23, 1980 when he received letter from his counsel. The appeal was admitted on March 17, 1969. The appellant engaged Shri B.R. Arora Advocate, as his counsel through Shri M.C. Rajwanshi, Advocate of Bhadra. Paras 4 and 5 of the affidavit of the appellant, which was filed in support of the application under Order 22 Rule 9 Rule/w 11 C.P.C. read as under:

4. that the appellant was not aware with the legal procedure and was also not in the know of the thing that in case of death of the respondent his legal representatives are to be taken on record and therefore, on account of his ignorance of law, he could not take any steps to get the legal representatives of respondents Mod and Moman taken on record.

5. That I received a letter from my counsel Shri B.R. Arora Advocate in the month of Feb. 1980 i.e, on 23rd informing me that respondents No. 2 and 3 Moti and Moman have expired and their legal representatives are to be taken on record and, thereafter, after gathering necessary information from the village of the respondents the appellant came to Jodhpur and is filing this application.

5. I have heard Mr. B.R. Arora, learned Counsel for the appellant and Mr. M.C. Bhandari, learned Counsel for respondent No. 1.

6. Having heard the learned Counsel for the parties, I am of the opinion that the application under Section 5 of the Limitation Act cannot be accepted and the delay caused in filing the application for impleading legal representatives of respondents No. 2 and 3 cannot be condoned, for no sufficient cause is made out.

7. It is well settled that the test whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention, In other words whether it is a bonafide cause, in as much as nothing shall be deemed to be done bonafide or in good faith which is not done with due care and attention. In Dhani Ram v. Mohd. Usman AIR 1947 Del 89, it was held that the words 'sufficient cause' in Section 5 of the Limitation Act would exclude the knowledge of the right or title to make the application. Such knowledge includes the knowledge of the pendency of the appeal. When respondent No. 2 had died, it was the duty of the appellant to find out the fact and to file a necessary petition to bring legal representatives of the deceased respondents on record. According to the appellant, respondent No; 3 had died somewhere in the year 1976 or 1977 and respondent No. 2 had died in 1979. In the application, which Was filed On behalf of respondent No. I it was specifically stated that Moti (respondent No. 2) has died On May 24, 1979 and Moman (respondent No. 3) had 'expired in the month of March, 1976; In circumstances of the case, the fact that the appellant had come to know about the death of respondents No. 2 and 3 on intimation of the learned Counsel for the appellant on February 23, 1980 when he received a letter from him in my opinion is not a sufficient cause for condoning the delay in making the application. The application under Section 5 of the Limitation Act is, therefore, rejected. For the similar reasons, the application under Order 22 Rule 9 Rule/w 11 C.P.C. is also rejected.

8. As the legal representatives of respondents No. 2 and 3 have not been brought on record and as the applications under Section 5 of the Limitation Act and under Order 22 Rule 9 read with Section 11 C.P.C, as stated above, have been rejected, the application under Order 22 Rule 4 Rule/w S- 11 C.P.C. cannot be accepted and the legal representatives of respondents No. 2 and 3 cannot be brought on record after the expiry of period of limitation. As a result of this, the application under Order 22 Rule 4 read with 11 C.P.C. is also dismissed.

9. Learned Counsel for the appellant contended that as respondent No. 1 is already on record and that as he sufficiently represents the estate of respondents No. 2 and 3, the appeal does not stand abated. In support of this, he referred to Harakchand v. Khetdan and drew my attention to the following occurring in para 17 of the report:

Be that as it may Hukmichand had already died before Ladmal was survived by his two nephews Harak Chand and Jeevraj, Harakchand admittedly being the elder brother of the two Harakchand was already on the record and was the managing member of the joint Hindu family consisting of himself and Jeevraj.

The aforesaid decision is of no avail because in that cause, Harak Chand was the manager of the Joint Hindu Family and he was already on record though in a different capacity. In those facts, it was held that he substantially represented the interests of the joint Hindu Family consisting of Harakchand and Jeevraj and that the failure to further bring Jeevraj in record did not really matter and did not have the effect of resulting in the abatement of the appeal in the lower appellate Court in the circumstances of that case. In the casein hand, the trial court (revenue court) decreed the suit of the plaintiff against the defendant. On appeal, the learned Additional Distt. Judge set aside the judgment and decree of the trial court and accepted the appeal. It therefore, follows that there was a joint decree of dismissal of suit in favour of respondent.

10. In State of Punjab v. Nathuram : [1962]2SCR636 , their Lordships of the Supreme Court observed as under:

The test to determine this has been described in diverse forms. Courts will hot 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 therefore which would lead to the Courts 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 successfully executed.

In para 8 of the report, their Lordships of the Supreme Court have further observed as under:

Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceed with and will have to be dismissed as a result of abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that is that in such cases, the abatement of the appeal against the deceased respondent will, have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate court. We do not consider this view correct. The specification of shares or of interest of the .deceased respondent does not affect the nature of the decree and the capicity of the joint decree holder to execute the entire decree or to resis the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot in any way modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal respresentatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the court will do is one to which exception can or cannot be taken.

The view taken in State of Punjab's case AIR 1962 SC 89 was followed in Rameshwar Prasad v. Shambeharilal : [1964]3SCR549 . Both the aforesaid decisions were again followed in Sri Chand v. Jagdish Prasad AIR 1966 SC 1427. State of Punjab's Case : [1962]2SCR636 Rameshwar Prasad's case : [1964]3SCR549 and Shri Chand's case AIR 1966 SC 1427 were also noticed in R.P. Gupta v. Murlidhar Prasad : [1973]1SCR63 and it was observed that the three tests laid down in State of Punjab's case : [1962]2SCR636 are not cumulative tests and even if one of them is satisfied, the Court may dismiss the appeal. A Learned Single Judge of this Court in Jawarimal v. Mangilal ILR (1961) 11 Raj 793 took the view that where the hearing on merits of an appeal which has abated as far as one of the appellants (deceased) is concerned, may result in two inconsistent decrees, the abatement cannot be allowed to be limited to the deceased appellant alone, but must result in the abatement of the appeal in its entirety.

11. In Tern v. Board of Revenue a D. vision Bench of this Court observed as follows:

But the difficulty in the way of the defendant petitioners is that there has been an adjudication and a decree has been passed by the Revenue Appellate Authority which has held the plaintiff to be entitled to be restored possession of the land from all the defendants jointly. The decree is thus joint and indivisible one against all the defendants and not against each one of the defendants separately. In that view, the, decree was a joint and indivisible one, the death of some of tie defendant-appellants would result not only in the appeal having abated with regard to the deceased appellant but will have the inevitable consequences that the appeal by the other appellants could not be proceeded with.

Keeping in view the principles laid down in the aforesaid cases of the Supreme Court and this Court, I am of opinion that in the absence of the legal representatives of deceased respondents No. 2 and 3, the decree of dismissal of suit passed in appeal by the learned Additional Distt, Judge cannot, in any way, be modified directly. It is not possible for this court to deal with the appeal, in the absence of the legal representatives of deceased respondents No. 2 and 3. I am unable to agree with the learned Counsel for the appellant that the appeal can be proceeded with in the absence of the legal representatives of deceased respondents No. 2 and 3 as respondent No. 1 substantially represents the interest of respondents No 2 and 3. The abatement of the appeal, that has taken place on the death of respondents No. 2 and 3 for failure to bring their legal representatives on record cannot be limited. It, therefore, follows that the appeal stands abated as a whole.

12. The appeal is, therefore, dismissed. In the circumstances of the case, there will be no order its to costs of this appeal.


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