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Smt. Nathi and anr. Vs. Magan Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil First Appeal No. 104 of 1981
Judge
Reported in1985(1)WLN607
AppellantSmt. Nathi and anr.
RespondentMagan Lal and anr.
DispositionApplication allowed
Cases ReferredS. v. W.O.
Excerpt:
.....not on good terms; in comparison to that strong documentary evidence regarding the knowledge of lalji bhai of the death of maganlal, the affidavits of girdhari singh and others regarding lalji bhai and others going for condolence at the death of maganlal on january 29, 1983 cannot be attached importance. there was thus sufficient cause for the appellants not knowing above the death of maganlal at udaipur earlier and failure to file application in time. it is true that when a specific provision is made as provided in order 22, rule 4 a resort to the general provision like order 1, rule 10 may not be appropriate. depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned. however, if..........that the information of the death of magan lal was sent to the appellants and their husband lalji bhai prior to january 29, 1983 through registered postcard and there was no reason for setting aside the abatement. both the parties filed affidavits in support of their respective contentions.2. mr. a.l. mehta, learned counsel for the appellants strenuously contended that there is no reason to disbelieve the version of the appellants that they had no knowledge of the death of maganlal prior to june 18, 1983 because they were residing at their village-panchaguda, tehsil-bhariavad, district udaipur at a distance of 125 kms. from udaipur. mr. mehta submitted that he received a postcard on april 19, 1983 from munshi sohanlal of udaipur, informing that maganlal had died on january 19,.....
Judgment:

Kanta Bhatnagar, J.

1. Magan Lal respondent No. 1 (since dead) filed a suit under Rajasthan Pre-emption Act, 1966 (here in after to be referred as 'the Act') regarding his right for purchase of a house sold by appellants No. 1 and 2 to respondent No. 3. Magan Lal succeeded in that suit and it was held that he had a right of pre-emption regarding the suit property. Against that judgment the vendors-respondents No. 1 and 2 preferred an appeal in this Court. During the pendency of appeal Magan Lal expired on January 19, 1983. On April 20, 1983 Mr. Arjun Lal Mehta, Counsel for the appellants filed on application under Order 22, Rule 4 and 11 of the Code of Civil Procedure (here in after to be referred as 'the Code') with a prayer that as Maganlal had died on Jan. 19, 1983 his legal representatives, mentioned in the application, be substituted in his place. It was also mentioned in the application that it may be treated as an application to set aside the abatement of the appeal. On July 4, 1983, another application under Order 22, Rule 9(2) read with Rule 11 of the Code, stated to be in continuation of the application dated April 20, 1983, was filed by Mr. A.L. Mehta, learned Counsel for the appellants with the prayer that the abatement of the appeal may be set aside and the legal representatives of Magan Lal mentioned in the previous application may be brought on record. Notices of the application were issued to the legal representatives of Magan Lal. Mr. Dinesh Maheshwari appeared on behalf of the legal representatives of Magan Lal and filed reply to the application under Order 22, Rule 4/11 of the Code. In the reply it is mentioned that the information of the death of Magan Lal was sent to the appellants and their husband Lalji Bhai prior to January 29, 1983 through registered postcard and there was no reason for setting aside the abatement. Both the parties filed affidavits in support of their respective contentions.

2. Mr. A.L. Mehta, learned Counsel for the appellants strenuously contended that there is no reason to disbelieve the version of the appellants that they had no knowledge of the death of Maganlal prior to June 18, 1983 because they were residing at their village-Panchaguda, Tehsil-Bhariavad, District Udaipur at a distance of 125 KMs. from Udaipur. Mr. Mehta submitted that he received a postcard on April 19, 1983 from Munshi Sohanlal of Udaipur, informing that Maganlal had died on January 19, 1983 and his legal representatives were his wife and two sons named in that postcard and that he could not find out about any other legal representative of Maganlal and that Lalji Bhai and his wife were living at their village and not at Udaipur and therefore he (Munshi Sohan Lal) had himself found out the name of the legal representatives and application in that regard may be filed. Mr. Mehta submitted that he received this postcard late in the afternoon of April 20, 1983 and immediately thereafter on the same day filed the application for substituting the legal representative of Maganlal and for setting aside the abatement of the appeal.

3. Mr. Dinesh Maheshwari, learned Counsel for the legal representative contended that the appeal abated after the expiry of the period of 90 days from the date of death of Maganlal and application filed on April 20, 1983 was not in time. That, mentioning a sentence in the application for substitution of legal representatives that the application may be treated as an application for setting aside the abatement is not according to law and no relief should be granted to the appellants on such an application.

4. According to Mr. Maheshwari, if Sohanlal was looking after the work of A.L. Mehta at Udaipur he should have informed Mr. A.L. Mehta in time and should have also contacted the appellants. That, the application dated April 20, 1983 is neither in proper form nor supported by any affidavit and therefore, deserves no consideration. Regarding the second application for setting aside the abatement filed on July 4, 1983, the argument of Mr. Maheshwari is that the appellants were staying in the house adjacent to that of Magan Lal at Udaipur whenever they used to visit Udaipur and their claiming ignorance of the death of Magan Lal is not believable. It has been further contended by Mr. Maheshwari that even assuming for the sake of argument it is believed that the appellants came to know of the death of Magan Lal on June 18, 1983 through their husband still there was no reason for them not to swear the affidavit prior to June 26, 1983.

5. Mr. Mehta submitted that Lalji Bhai, husband of the two appellants, was looking after the case and was the source of their knowledge about the death of Maganlal. That, Lalji Bhai came to know about the death of Magan Lal on June 18, 1983 when in a hearing of a criminal case instituted by Magan Lal against Lalji Bhai, it was brought on record of that court that Maganlal had expired Mr. Mehta submitted that on May 7, 1983 there was hearing of that criminal case and Lalji Bhai had attended the hearing. The counsel representing Maganlal in that Court filed an application that Maganlal had gone out to his relations and therefore he may be exempted from his personal appearance Mr. Mehta emphasised that if Lalji Bhai would have known about the death of Maganlal prior to May 7, 1983 there was no reason for him not to oppose that application.

6. There is no dispute on the point that the application for substitution of legal representatives filed on April 20, 1983 is beyond the period provided for filing such an application. The question is whether the application dated April 20, 1983 can be treated as an application for setting aside the abatement. The application up to the last line of typed material is in the form of an application for substituting the legal representatives of Magan Lal mentioned in the application. At the bottom of the application a line has been added that the application may be treated as an application for setting aside the abatement of the appeal. There is substance in the contention of Mr. Maheshwari that an application in such a form cannot be taken as an application for setting aside abatement.

7. In the case of Durga Lal v. Asharafi Lal and Ors. 1973 WLN 474 the question as to whether an application under Order 22, Rule 4 can be treated as an application for abatement came for consideration before this Court. The application filed in the Court was merely on an information about the death of one Asharafilal and the counsel for the defendant who presented that application simply prayed for time to implead the legal representatives of the deceased after finding out their names. His Lordship, in the absence of even the names of the legal representatives of the deceased declined to consider it an application for substitution of the legal representatives of the deceased. Considering the question as to whether an application for substitution can be treated as an application for setting aside an abatement, his Lordship was pleased to observe that such a question should be considered with reference to the facts stated in the application for substitution. According to his Lordship there is no such law which lays down that the application to bring on record the legal representatives of by the deceased party if filed after 90 days must always be deemed to be an application for setting aside the abatement. Regarding the necessary contents of the application for setting aside the abatement, it was observed that such a question should be considered with reference to the facts stated in the application for substitution. That, an application for setting aside an abatement must contain allegations showing sufficient reason for not making the application for bringing on record the legal representatives of the deceased within time. As there was no mention in the application in that case that the appeal had abated and that on account of any sufficient reason the appellants were prevented from making the application for substitution of the legal representatives of Ashrafilal within time, the application was not taken to be a proper application under Rule 9 of Order 22 of the Code.

8. In the application dated April 20, 1983 the names of the legal representatives of deceased Magan Lal are of course there but as observed above, the application having been filed after the expiry of period of 90 days, it cannot be taken to be an application for substitution of the legal representatives, because after the expiry of period of 90 days the appeal abated and the abatement of the appeal is to be set aside first and then the question of substitution would arise. The reason for filing an application after delay has not been mentioned in that application. The application for setting aside abatement of the appeal under Order 22, Rule 9(2) read with Rule 11 of the Code as stated earlier was filed on July 4, 1983.

9. The basis of the information to Mr. A.L. Mehta, learned Counsel for the appellants was the post card received form Munshi Sohanlal on April 20, 1983. There is nothing to point out that the counsel for the appellant had any information about the death of Maganlal prior to April 20, 1983.

10. The important question is as to whether there was justification for the application for setting aside the abatement in proper form not being filed prior to July 4, 1983. The case of the appellant is that they knew about the death on June 18, 1983. It is relevant to note that from June 18, 1983 to July 3, 1983 there was vacation in the High Court. The Courts reopened after vacation on July 4, 1983. If the case of the appellant that on June 18, 1983 for the first time they came to know about the death of Maganlal is believed then the application for setting aside the abatement filed on July 4, 1983, the opening date of the Court, was in time, In support of the application dated July 4, 1983 two affidavits of appellant Smt. Nathi Bai-II and Lalji Bhai husband of the two appellants have been filed. The affidavits are dated June 26, 1983. Mr. Maheshwari as stated earlier stressed that if on June 18, 1983 there was information according to the plaintiff why there was a delay of 8 days in swearing in the affidavit. This argument has no force because if the case of the appellant regarding their information on June 18, 1983 is to be believed, then the application was to be filed on July 4, 1983 at its earliest' when the Courts were to open and as such the date of the affidavits would not matter much.

11. In the affidavit filed by Smt. Nathi Bai-II it has been mentioned that she and appellant No. 1, Nathi Bai-I, along with their husband and children had gone to their village Panchaguda on November 9, 1982 and since then were residing there. That, on June 18, 1983 the applicants appellants were informed by their husband Lalji Bhai about the death of Magan Lal on January 19, 1983 at Udaipur and prior to that they had no knowledge about it. Lalji Bhai in his affidavit has supported the contention of Smt. Nati Bai in her affidavit and stated further that on May 7, 1983 he had gone to attend the hearing of a Criminal case instituted against him by Maganlal and the case was got adjourned by the counsel of Maganlal on the ground that Maganlal had gone out to his relation. That on the next date i.e. June 18, 1983 it was stated by the counsel for Maganlal that Maganlal had expired. That, he met Munshi Sohan Lal Chaplot and informed that Maganlal had died on January 19, 1983 and so far as his information was Magan Lal's legal representatives were his wife and two sons. That, Sohan Lal Munshi also informed that on April 18, 1983 he knew it about the death of Maganla land found out the names of his legal representatives and informed Advocate Shri Arjun Lal Mehta at Jodhpur through a post card dated April 19, 1983 because he could not contact on Phone despite efforts on April 18, 1983 and April 19, 1983. It was also mentionad in the application that village Panchaguda was in the interior of Tehsil Dhariavad about 125 K.M. away from Udaipur.

12. On July 4, 1983 an application Under Section 5 of the Limitation Act was also filed with the prayer that for the reasons mentioned in the aforesaid two affidavits, the delay in filing the application under Order 22, Rule 9(2) CPC. may be condoned. In support of the reply filed on behalf of the legal representatives of Maganlal, two postal receipts have been filed i.e. one addressed to Smt. Nathi Bai and the other to Lalji Bhai at their village Panchaguda and are said to relate to the information of Maganlal death to Lalji Bhai and his wife Smt. Nathi Bai. In the affidavit filed by Girdhari Singh son of Maganlal, it has been mentioned that his house and that of the appellants was in the same 'Pole' at Udaipur. That, the information of the death of Maganlal was sent to Smt. Nathi Bai and her husband Lalji Bhai at village Panchaguda, Tehsil Dhariavad on January 22, 1983. That as an appeal regarding the disputes of the house was pending, the letters were sent under postal certificates by way of evidence. It was further stated that on January 29, 1983, the appellants and their husband Lalji Bhai went to the house of the deceased for condolence and at that time Sardar Singh Bhatnagar residing nearby was present. That on May 24, 1983 Smt. Nathi Bai and Lalji Bhai had gone to Udaipur and stayed in the same house. Affidavits of Onkarlal, Sardar Singh and Laxmilal have been filed to the effect that Lalji Bhai had gone to pay condolence at the death of Maganlal. Sardar Singh and Onkarlal have stated that they had seen Lalji Bhai on January 29, 1983 and Laxmilal has stated that when he had gone on January 30, 1983, Lalji Bhai and appellant Smt. Nathi Bai were there and they informed the witness that they had come for condolence on the previous day. Affidavit of one Banshi Lal has also been filed with the contents that on February 27, 1983 when he and Lalji Bhai were coming from Dhariavad to Udaipur in a Bus, he asked Lalji Bhai about the case and Lalji Bhai informed him that Maganlal has expired and he has also gone for condolence with his wife in the first twelve days of the death.

13. So far as this last affidavit is concerned, it has no importance because it is such a vague term. Regarding the affidavits of the persons who have stated that they had seen Lalji Bhai and his wife Smt. Nathi Bai at Udaipur and that they had come to pay condolence, it may be stated that Girdharilal has mentioned in his affidavit the name of Sardar Singh only. There is nothing unnatural in the acquaintances visiting the house of the deceased for condolence but in a case like the present one, when the deceased and the appellants and their husband were not on good terms; Civil and Criminal cases were going on; at Maganlal's instance criminal case had been instituted against Lalji Bhai, this type of evidence about not only Lalji Bhai but even by his wife going to pay condolence at the death of Maganlal requires careful scrutiny.

14. In case there is no other satisfactory explanation for the appellants for not filing the application in time and their version about their knowledge of the fact of Magan Lal's death being for the first time on June 18, 1983 is not believed, them these affidavits would support the case of Girdharisingh son of Maganlal.

15. Bhagwatilal, a petition writer at Udaipur Courts has filed an affidavit stating that on January 25, 1983 he informed Munshi Sohanlal about the death of Maganlal on January 19, 1983. This fact has been refuted by Munshi Sohanlal in his affidavit and he has stated that it was on April 18, 1983 that Bhagwati Lal told him about the death of Maganlal on January 19, 1983. That immediately on receiving the information on April 18, 1983, he informed Advocate Arjunlal Mehta on April 19, 1983 by a post card about this event. There is nothing to disbelieve Advocate Mehta that he received information from Munshi Sohanlal on April 20, 1983 through a post card dated April 19, 1983 and immediately thereafter he filed the application dated April 20, 1984. The argument is as to why Munshi Sohanlal, if he could have information of the death of Maganlal prior to April 18, 1983 would not have informed Advocate Mehta prior to January 19, 1983. The possibility of Munshi Sohan Lal forgetting to inform Mr. Mehta earlier cannot be ruled out. But there are very important circumstances, which I would presently discuss, that throw doubt on the case of Girdharilal that appellant and Lalji Bhai had information about Maganlal's death prior to June 18, 1983.

16. Subsequent to the filing of the reply to the application dated July 4, 1983, appellants Smt. Nathi Bai-I, Smt. Nathi Bai-II and Lalji Bhai have filed further affidavits. Smt. Nathi Bai-I, has stated that after November 9, 1982 she had shifted to Panchaguda village and she never came to Udaipur prior to the date of filing of that affidavit. That, she had not gone to pay condolence on January 29, 1983 to the house of Maganlal and came to know about the death of Maganlal for the first time on June 18, 1983 through her husband. Nathi Bai-II as stated that since November 9, 1982 she was residing at village Panchaguda and had gone to the disputed house first time on June 22, 1983. That, she did not go for condolence to the house of Maganlal on January 29, 1983 nor had any information about it prior to June 18, 1983. She stated that on May 24, 1983 for the first time after November 9, 1982 she went at Udaipur and filed bail bonds, in the Court and direct from the Court returned to the village and had not gone to the house in dispute. Lalji Bhai, husband of the appellants in his affidavit denied the contention of Girdhari Singh that on January 29, 1983 he, along with appellants had gone to pay condolence on the death of Maganlal. He also denied the information said to have been sent by Girdhari Singh on January 22, 1983 about the death of Maganlal. According to the witness Shankar Lal, real nephew of deceased Maganlal, was an employee at the post office and it so appears that through him postal certificates might have been obtained. He has also stated that on May 24, 1983 he and wife Nathi Bai-II went to the Court at Udaipur, filed bail bonds and went direct to the village without going to the disputed house. It has also been mentioned in the affidavit that in a criminal case No. 181/183 Magan Lal v. Lalji Bhai (supra) pending in the Court of Judicial Magistrate Udaipur (North), on the hearing on May 7, 1983 Maganlal's counsel filed an application for exemption of personal attendance of Maganlal. That, the deponent (Lalji Bhai) was present at the time and had he information about Maganlal's death he would have taken that plea and got the case decided. The certified copy of the application filed by the counsel of Maganlal dated May 7, 1983 seeking exemption on the ground of Maganlal's going out to his relation and the order-sheet of that date have been filed.

17. There is force in the argument of Mr. Mehta that if Girdhari Singh was particular to inform not only to Lalji Bhai that also to his wife Nathi Bhai about the death of Magan Lal within a few days of the death there could not be any reason for him not to inform the counsel of Maganlal regarding this fact. The very fact of counsel the filing an application on May 7, 1983 that Maganlal has gone out and he may be exempted from the personal attendance on that date shows that the counsel at Udaipur itself had no information about Maganlal's death. If Lalji Bhai would have known about the death of Maganlal prior to May 7, 1983, he being present at the time of the filing of the application, as is evident from the order sheet of that date, in the natural course of events, would have opposed the application on the ground that Maganlal had expired and there was no question of his going out to the relation and being exempted from appearance on that date. It was only on June 18, 1983 that the fact of the date of Maganlal was brought to the notice of the Criminal Court & there is nothing to disbelieve Lalji Bhai that he on that date came to know about the death of Maganlal. In comparison to that strong documentary evidence regarding the knowledge of Lalji Bhai of the death of Maganlal, the affidavits of Girdhari Singh and others regarding Lalji Bhai and others going for condolence at the death of Maganlal on January 29, 1983 cannot be attached importance.

18. In view of the above discussion, I am of the opinion that the appellants have succeeded in substantiating their case that Lalji Bhai came to know of the death of Maganlal the first time on June 18, 1983 and through them appellants came to know of that fact on that date.

19. Mr. Maheshwari next argued that by abatement of appeal a valuable right has accrued to the other side and, therefore, the abatement should not be set aside only on the ground of the delayed knowledge of the death of Maganlal to the appellants. To substantiate his contention Mr. Maheshwari placed reliance on the case of Union of India v. Ram Charan : [1964]3SCR467 , where in their Lordships were pleased to hold that mere allegation about belated knowledge of death of opposite party would not be sufficient cause for setting aside the abatement and the parties seeking such a relief should give reasons leading to not knowing of death within reasonable time. According to their Lordships there is no question of construing the expression 'sufficient cause' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. Observing that the provisions of the Code are with a view to advance the cause of justice, their Lordships were pleased to observe as under:

Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not related to the merits of the dispute between the parties and because if the abatement is set aside the merits of the dispute can be determined, while if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance.

20. Their Lordships were further pleased to observe that it is true that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of the respondent 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. The mere allegation about his not coming to know of the death of the opposite party is not sufficient, and he had to state reasons which, according to him, led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness in those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit.

21. As discussed above there is sufficient convincing material to suggest that till May 7, 1983 Lalji Bhai had no knowledge of the death of Maganlal and for that reason he did not oppose the application of the counsel of Maganlal seeking exemption for his appearance on that date and the case was adjourned to June 18, 1983, when for the first time it was brought to the notice of the Criminal Court that Maganlal has expired. It is not in dispute that during the relevant period Lalji Bhai and his two wives, the appellants, were residing at village-Panchaguda, Tehsil-Dhariavad, 125 K.M/s away from Udaipur. There was thus sufficient cause for the appellants not knowing above the death of Maganlal at Udaipur earlier and failure to file application in time.

22. Both the learned Counsel have tried to substantiate their respective contentions regarding the Court allowing or refusing the application for setting aside the abatement by referring to the case of Bhawan Swaroop and Ors. v. Mool-Chand and Ors. : AIR1983SC355 . Both the learned Judges deciding the case allowed the appeal and held that in the facts and circumstances of the case the order of the High Court refusing to set aside the abatement and to bring the legal representatives on record should be set aside the appeal should be heard on merits by the High Court. The learned Judges however differed on the principles to be kept mind by the Court while deciding the applications for setting aside the abatement.

23. In that case during the pendency of the appeal one respondent died and his legal representatives were not brought on record for more than three years. After that the application was filed by the legal heirs under Order 1, Rule 14 C.P.C. Those applications were rejected by the High Court. His Lordship D.A. Desai observed as under:

It is true that when a specific provision is made as provided in Order 22, Rule 4 a resort to the general provision like Order 1, Rule 10 may not be appropriate. But the law of procedure are devised for advancing justice and not impairing the same. Code of Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up.

His Lordship A.N. Sen on the other hand expressed his opinion on the point in the following terms:

The provision fixing a particular time for making an application for bringing legal representative on record with the consequence of the suit or appeal abating if no application is made within time, have been enacted for expeditious disposal of cases in the interest of proper administration of justice. It is further to be borne in mind that when, a suit or appeal abates a very valuable right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party. Depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned.

24. However in the peculiar facts and circumstances of that case his Lordship A.P. Sen, J. did not press his doubts to the point of dissent and agreed with his Lordship D.A. Desai that in the facts and circumstances of the case, the order of the High Court refusing to set aside the application to bring the legal representatives of the deceased should be set aside and the appeal should be heard on merits by the High Court.

25. The guidance to be taken from aforesaid observations of both the learned Judges is that if valuable right accrues to a party, the opposite party being guilty of negligence and laches should not be placed in an advantageous position by an unwanted liberal attitude of the Court. However, if the Court is satisfied that there was sufficient cause for not filing the application in time then the application instead of being rejected on technical ground should be allowed to ensure justice.

26. While concluding whether there is sufficient reason or not, the circumstances of the case should be taken note of. In the case of Sital Prasad Saxena (Dead) by LRS. v. W.O.I and Ors. Dealing with an appeal, their Lordships held that the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing and in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party. The rules of Procedure under Order 22 are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties.

27. In the facts and circumstances of the present case discussed above, I consider it a fit case in which the application for setting aside abatement of appeal should be allowed.

28. Consequently, the application dated July 4, 1983 is allowed and the abatement of the appeal is set aside. The legal representatives of deceased Maganlal viz. Smt. Parvati widow of Maganlal, Girdari Singh s/o Maganlal and Ramesh Chandra s/o Maganlal Kumawat are substituted in place of respondent Maganlal and arrayed as respondent Nos. 1/1, 1/2 and 1/3. Mr. Mehta shall file the amended cause title within one week.


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