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Mst. Sunehru Vs. Rikhi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal Nos. 17 and 18 of 1961
Judge
Reported inAIR1965HP28
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 4 and 9(2); ;Limitation Act, 1908 - Section 5
AppellantMst. Sunehru
RespondentRikhi Ram and ors.
Appellant Advocate Amar Chand, Adv.
Respondent Advocate Jaswant Singh, Adv.
DispositionAppeal dismissed
Cases ReferredMehar Singh v. Ajaib Singh
Excerpt:
- .....appellant did not put in any application, within the prescribed period, for bringing on record the legal representatives of ball ram. on the 9th july, 1963, the appellant put in applications, in both the appeals, for setting aside the abatement and bringing on record the legal representatives of ball ram. it was stated, in the applications, that the appellant was staying with her husband at joling, district mahasu, where he had been posted as a head constable and that she had returned from joling on the 8th june, 1963 and had learnt, from one rup lal, on the 16th june, 1963, that ball ram respondent had died at bilaspur in the month of november 1962. an application for amending, the above application for setting aside the abatement, by introducing a fresh ground that the appellant was.....
Judgment:

Om Parkash, J.C.

1. This judgment will dispose of Regular Second Appeals Nos. 17 and 18 of 1961,which are directed, against the appellate decrees of the learned District Judge, Bilaspur. The parties, the facts and the questions of law, involved in both the appeals, are the same. It will, therefore, toe convenient to dispose them of toy one judgment.

2. The facts, leading to the filing of the appeals, are simple and are not in dispute. The predecessors-in-interest of the appellant had effected three mortgages, with possession, in favour of the predecessors-in-interest of the respondents, in respect of three parcels of land, measuring 3 bighas and 9 biswas, 8 bighas and 16 biswas and 4 bighas and 13 biswas. The appellant had instituted three suits, Nos. 134, 135 and 136 of 1957, in the Court of the Senior Subordinate Judge Bilaspur, for the redemption of the three mortgages and for possession of the lands mortgaged. The suits were contested by the respondents. Their main plea was that their predecessors-in-interest were tenants of the lands, before the mortgages were effected, in their favour, and that even if it be held that the appellant was entitled to redeem the mortgages, she was not entitled to get actual possession of the lands and the respondents were entitled to remain In possession, as tenants.

3. The learned Senior Subordinate Judge accepted the plea of the respondents that their predecessors-in-interest were tenants of the lands and that the appellant was not entitled to get actual possession, on redemption. He decreed the suits of the appellant but subject to the condition thatshe would get proprietary possession only. Against the decrees of the learned Senior Subordinate Judge, refusing her actual possession of the lands, the appellant lodged three appeals Nos. 20, 21 and 22 of 1960, in the Court of the District Judge, Bilaspur. Her prayer was that she may be granted actual possession of the redeemed lands and that the decrees of the Senior Subordinate Judge may be varied to that extent. The appeals were compromised. Ditu Ham, the husband of the appellant, who was her Mukhtar-I-Khas, had effected compromises on her behalf.

The compromise in appeal No. 20, which had arisen, out of suit No. 135, relating to the redemption of the mortgage of the land, measuring 8 bighas and 16 biswas, was that the respondents had agreed to hand-over actual possession of the land to the appellant. The compromises, in appeals Nos. 21 and 22, which had arisen, out of suits Nos. 136 and 134 respectively, relating to the redemption of the mortgage of land, measuring 4 bighas and 13 biswas and to the mortgage of land, measuring 3 bighas and 9 biswas, were that the appellant had agreed to relinquish, her proprietary rights in both the parcels of land in favour of the respondents. As a result of the compromises, appeal No. 2O was allowed and the appellant was granted a decree for actual possession of land, measuring 8 bighas and 16 biswas, and appeals Nos. 21 and 22 were dismissed and the decrees of the learned Senior Subordinate Judge, granting proprietary possession to the appellant in suits Nos. 136 and 134,were set aside.

4. Aggrieved by the orders of the learned District Judge, in appeals JNos. 21 and 22, the appellant filed appeals Nos. 17 and 18 of 1901 In this Court. The appellant has accepted the decision of the learned District Judge In appeal No. 20, granting Her actual possession of land, measuring 8 blghas and IB biswas. The main ground of attack, in both the appeals, is that Dittu 11am, Mukhtar-I-it has of the appellant, had no authority to compromise appeals Nos. 21 and 22, pending in the Court of the District Judge.

5. During the pendency of the appeals, in this Court, Bail Kara respondent No. 2 died, leaving behind him, his widow and a minor daughter. The appellant did not put in any application, within the prescribed period, for bringing on record the legal representatives of Ball Ram. On the 9th July, 1963, the appellant put in applications, in both the appeals, for setting aside the abatement and Bringing on record the legal representatives of Ball Ram. It was stated, in the applications, that the appellant was staying with Her husband at Joling, District Mahasu, where he had been posted as a Head Constable and that she had returned from Joling on the 8th June, 1963 and had learnt, from one Rup Lal, on the 16th June, 1963, that Ball Ram respondent had died at Bilaspur in the month of November 1962. An application for amending, the above application for setting aside the abatement, by introducing a fresh ground that the appellant was blessed with a daughter on the 9th June, 1963 and could not move about earlier than the 9th July, 1963, was rejected by this Court,

6. The legal representatives of Ball Ham opposed tne applications for setting aside the abatement. They controverted the allegations that Ball Kam had died in November, 1962, and that the appellant had been staying at Joling and had come back on the 8th June 1963. Their contention is that Ball Kam had died on the 27th July, 1962, and that tne appellant was present in the village when ceremonies relating to the death of Ball Ham were performed. The legal representatives, further, alleged that Ditu Kam, the husband oi' the appellant, was present at the time of the death of Bali llam at Bilaspur and had participated in the funeral ceremonies. Finally, the legal representatives plead that there is no sufficient cause for setting aside the abatement.

7. The first question, which requires decision, is when Ball Kam had died--in the month of November or on the 27th July 1962. The widow of Ban Kam has filed an affidavit that he had died on the 27th July 1962. A copy of an entry from the Register of Patients, maintained at the District Hospital Bilaspur, has also been filed by her. This document shows that Bali Kam was admitted to the District Hospital Bilaspur on the 11th July, 1962 and that he died in the hospital at 7. 15 A.M. on the 277th July, 1962. The appellant has stated, In her affidavit, that she had learnt from one RupLa1 that Bali Ram had died In November, 1962. No affidavit has been filed on behalf of Rup Lal. There is no evidence, on record, that Bali Ram had died In November, 1962. The affidavit, filed by the widow of Bali Ram, that he had died on the 27th July, 1962, stands unrebutted. The entry in the Register of Patients also confirms that Bali Ram had died on the 27th July, 1962. It is held that Bali Ram had died on the 27th July, 1962 and not In the month of November, 1962.

8. The appellant did not make any application, within the period of limitation to bring on record the legal representatives of Bali Ram. The appeals abated against him. On the 9th July, 1963, the appellant put in an application for setting aside the abatement. The application was clearly barred by time. The contention, on behalf of the appellant was, that the circumstances, set forth, in the application, constituted a sufficient cause for not preferring the application, within time. Though the determination of the question whether 'sufficient cause' has been established or not depends on the facts and circumstances of each case, yet in determining the question, the Court Is to follow certain principles. In Union of India V. Ram Charan, AIR 1964 S. C. 215, It was laid down:--

'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. The provisions of the Code are with a view to advance the cause of justice. 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 relate 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. This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified In considering the merits of the evidence led to establish the cause for the appellant's default In applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement. 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. That is not the law. Rule 9 of Order XXII of the Code requires the plaintiff to prove that he was prevented by any sufficient cause from continuing thesuit. The mere allegation about his not coming to Know of the death of the opposite party is not sufficient. 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 of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit. It is for the appellant, in the first instance, to allege why he did not Know of the death of the respondent earlier or why he could not Know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to bring the legal representatives of the deceased respondent earlier on the record.'

9. In Firm Dittu ram Eyedan v. Om Press Co., Ltd., FazilKa AIR 1960 Punj. 335 (FB), it was observed that :--

'In construing the expression 'sufficient cause' the existence or otherwise of negligence of the applicant is always a governing factor, and this is because of the omission to perform a duty cast upon Mm by law. If the applicant has been prevented from making an application due to circumstances beyond his control or despite reasonable diligence, the Courts in their desire to do substantial justice do ordinarily, condone delay.' (Pages 337-338),

10. It was, further, held in the aforesaid authority, that ignorance of death per se does not furnish sufficient ground for setting aside an abatement and that it has to be, further, established that Ignorance was not attributable to negligence or tack of vigilance.

11. The question whether the appellant, In the present case, has established, sufficient cause, for not making the applications for setting aside the abatement and to bring on record the legal representatives of Ball Ram, within time, is to be determined in the light of the principles, enunciated in the authorities, cited. above. The allegation of the appellant is that she was ignorant, about the death of Ball Kam as she was residing, at Joling, District Mahasu, with her husband, who was posted there as a Head Constable and that she had returned to her village on the 8th June, 1963 where she bad learnt about the death of Bali Ram on the 16th June. The widow of Bali Ram, in her counter affidavit, has challenged the allegation of the appellant that she was at Joling at the time of the death of Bali Ram. The widow has asserted that the appellant was in her village and had even witnessed the performance of ceremonies, relating to the death of Ball Kam.

The widow has, further, asserted that Dittu Kam, the husband of the appellant, was not posted at Joling but was posted at Bilaspur, at the time of death of Ban Kam and had actually participated inthe funeral. The appellant was given, more than one opportunities, to prove that she was at Joling at the time of the death of Bali Ram. But she did not adduce any proof. She did not care even to get an affidavit, filed by Dittu Kam, that he was posted at Joiing at the relevant time. It could have been easily established, from police records, whether Dittu Kam was posted at Joling at the time of death of Bali Kam. Gopala Kam, the MuKhtar-I-Khas of the appellant, has filed an affidavit' that Dittu Kara had gone to Paonta and Jullundur, during those days. This affidavit contradicts the allegation of the appellant that Dittu Kam was at Joling, at the relevant time. The allegation of the appellant that she was at Joling when Ball Kam had died and dirt not Know about his death till the 16th June, 1963, does not stand a moment's scrutiny,

There appears to be some truth in the affidavit, of the widow of Bali Ram that the appellant was in the village. She did not maKe any effort to make the applications, for bringing on record the legal representatives of Bali Ram, within time. The conduct of the appellant was marked by carelessness and want of vigilance. Even if it be assumed that the appellant was ignorant of the death of Bali Ram, that would not constitute a sufficient cause as she has not shown that ignorance of death was not attributable to negligence or lack of vigilance. The appellant has failed to establish any sufficient cause for condoning the delay in maKing the applications for setting aside the abatement. The applications are dismissed.

12. The next question is what is the effect of the abatement of the appeals, qua Bali Ram, against the other two respondents. Their Lordships of the Supreme Court have observed, in State of Punjab v. Nathu Ram, AIR 1962 SC 89 :--

'When Order 22 Rule. 4 C. P. C. does not provide for the abatement of the appeals against the co-respondents of the deceased respondent there can be no question of abatement of appeals against them. To say that the appeals against them abated In certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed In certain circumstances, and have therefore to be jdismissed. Such a result depends on the nature of the relief sought in the appeal.'

13. Further on, their Lordships indicated some of the circumstances, in which an appeal cannot proceed against the other respondents. They were (a) when the success of the appeal may lead to the Court's coming to a decision which be its conflict with the decision between the appellant and the deceased respondent and therefore, which would lead to the Court's passing a decree which will bo 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.

14. In the present case, the decrees of the District Judge, in favour of the respondents, were joint decrees. Appeals could not have been filed without Joining Bali Ram. He was a necessary party to the appeals. After his death, his legal representatives were a necessary party and as they were not brought on record, the two appeals had become not properly constituted and could not proceed. Moreover, in case of success of the appellant, there will be contradictory decrees to the decrees which have become final, with respect to the same subject-matter, between the appellant and Bali Ram. For the reasons, stated above, the two appeals Nos. 17 and 18 are to be dismissed, as not properly constituted.

15. The learned counsel for the appellant, contended that as the shares of Bali Ram and the other two respondents in the lands mortgaged were specified in the revenue records as well as in the compromises, the appeals could proceed against the other two respondents. The learned counsel placed reliance, in this connection, on Jeon Singh v. Chanan Singh, 1903-65 fun LR 449 wherein it was held that when the shares of the defendants In the land in suit are specified, the suit does not abate in toto when one of them dies, it abates only to the extent of the share of the deceased. The contention of the learned counsel does not appear to be sound. The decrees of the District Judge, which are sought to be set aside, were joint. The decrees cannot be dealt with in the absence of the legal representatives of Bali Ram. The specification of the shares in the lands, in dispute, will not affect the relief sought in the appeals.

The view, that in case of a joint decree, in favour of respondents, whose rights in the subject-matter of the decree are specified, the abatement of the appeal against the deceased respondent will have the result of only making the decree affecting his specific interest to be final and the decree against the other respondents can be suitably dealt with by the appellate Court, was rejected, as incorrect, by the Hon'ble Supreme Court in AIR 1962 SC 89, supra. The facts, in that case, were that certain land, belonging to two brothers, Labhu Kam and Nathu Kam, jointly, was acquired for military purposes and compensation for acquisition was assessed by the Arbitrator. He passed a joint award granting a higher compensation. The State Government appealed, against the award, to the High Court. During the pendency of the appeal, Labhu Ram died and his legal representatives were not brought on record and the appeal abated against him. The question arose what was the effect of abatement against Nathu Ram.

It was contended, on behalf of the State Government, that as shares of Labhu Ram and Nathu Ram, in the land, were specified in the revenue records, the appeal could proceed against Nathu Ram. Their Lordships rejected the contention and held that the appeal had become incompetent and could not proceed even against Nathu Ram, notwithstanding the fact that the shares of Nathu Ram and Labhu Ram were - specified in theland. The correctness of the decision in 65 Pun LR 449 is open to doubt, in view of the dicta and decision of their Lordships in AIR 1962 SC 89. The facts in Mehar Singh v. Ajaib Singh, AIR 1963 SC 553, were that the 5th and 6th respondents had sold, to the appellants, who were five in number, certain agricultural land for a consideration of Rs. 22750/-. The sale deed recited that the appellants Nos. 1 and 2, who were brothers, had paid one half amount of Rs. 11375/- while the other three appellants had paid the other half, and that the property sold was to be enjoyed by the two sets of the vendees in equal shares.

Respondents Nos. 1 to 4 instituted a suit for pre-emption which was decreed. The matter went up in appeal to the Supreme Court. During the pendency of the appeal, appellant No. 1 died. His legal representatives were not brought on record. It was held by their Lordships of the Supreme Court that the appeal had become incompetent on the death of appellant No. 1, without his legal representatives being brought on record.

16. The result of the above discussion is that on the death of Bali Ram, and without his legal representatives being brought on record, the appeals had become as not properly constituted against the other two respondents and were liable to be dismissed. Both the appeals Nos. 17 and 18 are, therefore, dismissed with costs.

17. This judgment will be read in both the appeals Nos. 17 and 18 of 1961. The original judgment will be placed on the record of appeal No. 17 and a copy will be placed on the record of appeal No. 18.

18. Before closing, it may be pointed out that after the death of Bali Ram, Smt. Mahanti respondent had also died and her legal representatives were not brought on the record, within the period of limitation. As the appeals had become incompetent against the two respondents, Rikhi Ram and Smt. Mahanti, on the death of Bali Ram, it is unnecessary to consider the effect of the death of Smt. Mahanti, on the appeals.


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