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Krishan Lal Vs. Beant Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberC.M.P. No. 627 of 1972 in First Appeal No. 22 of 1967
Judge
Reported inAIR1974HP52
ActsLimitation Act, 1963 - Section 5 - Schedule - Article 120; ;Code of Civil Procedure (CPC) , 1908 - Order 22, Rules 4 and 9
AppellantKrishan Lal
RespondentBeant Singh
Appellant Advocate H.K. Bhardwaj, Adv.
Respondent Advocate K.D. Sud, Adv.
DispositionApplication dismissed
Cases ReferredUnion of India v. Ram Charan
Excerpt:
- .....chandigarh. the appellant did not take any steps to bring on record the legal representatives of shri beant singh deceased, and, therefore, on 8-12-1972 amrit singh one of the sons and the legal representatives of the deceased respondent filed an application under order 22, rule 4 (3) read with rule 11 and section 151, civil procedure code for dismissing the appeal as having been abated. on this application a notice was issued to the appellant for 7-5-1973.2. the appellant, therefore, filed the application purporting to be under order 22, rule 4 read with section 151. civil procedure code for bringing on record the legal representatives of shri beant singh respondent it was averred in this application that shri beant singh expired in chandigarh hospital on 23-8-1969 during the pendency.....
Judgment:

Chet Ram Thakur, J.

1. During the pendency of the regular first appeal No 22/1967, Krishan Lal v. Beant Singh, the respondent died on 23-8-1969 in the P. G. I. at Chandigarh. The appellant did not take any steps to bring on record the legal representatives of Shri Beant Singh deceased, and, therefore, on 8-12-1972 Amrit Singh one of the sons and the legal representatives of the deceased respondent filed an application under Order 22, Rule 4 (3) read with Rule 11 and Section 151, Civil Procedure Code for dismissing the appeal as having been abated. On this application a notice was issued to the appellant for 7-5-1973.

2. The appellant, therefore, filed the application purporting to be under Order 22, Rule 4 read with Section 151. Civil Procedure Code for bringing on record the legal representatives of Shri Beant Singh respondent It was averred in this application that Shri Beant Singh expired in Chandigarh hospital on 23-8-1969 during the pendency of the appeal leaving, behind his widow, three sons S/Shri Amrik Singh, Trilochan Singh, and Jagiit Singh, and three daughters Smt. Pritam Kaur, Smt. Parveen Kaur, and Smt. Jaspal Kaur, as his legal representatives.

3. In the penultimate para he stated that the appellant came to know about the death of the respondent only on receipt of notice served on him on 7-4-1973 for his appearance on 7-5-1973 in the application of Amrit Singh, son of Shri Beant Singh. After 7-5-1973 he left for Paonta Sahib to ascertain about the names of the legal representatives of Beant Singh, and, thereafter he filed this application on 25-5-1973 and the delay in filing the application for bringing the legal representatives of the deceased was not intentional and that separate application under Section 5 Indian Limitation Act was also filed for condonation of the delay.

4. In his application under Section 5 of the Indian Limitation Act, it had been stated that the appellant is running his business at Jagadnari (Haryana) which is at a distance of about 60 kilometres from Paonta Sahib. Neither the appellant ever gets opportunity to visit Paonta Sahib. Nahan or the surrounding areas nor he has any relation at Paonta, who could convey the news of the death of Beant Singh. Due to those reasons the appellant could not know about the death of Beant Singh till he received the notice in the application No. CMP 627/72 of Amrit Singh for his appearance on 7th May, 1973.

5. The application of appellant for bringing the legal representatives on record as also the application for condonation of delay are both opposed having been made after the expiry of 150 days of the death of the respondent as also from the knowledge of the date of the death of the respondent by the appellant. It was further submitted that the legal representatives could not be brought on the record as the appeal had abated and no application for setting aside the abate ment had been moved by the appellant and also no sufficient cause had been made out for the condonation of delay in moving the application for setting aside the abatement and bringing on record the legal representatives of the deceased. It was denied that the appellant learnt about the death of Beant Singh after the receipt of the notice of application of Amrit Singh, which he alleges to have been served on him on 7-4-1973. According to Amrit Singh and the other legal representatives of Beant Singh, it was submitted that the appellant knew about the death of Beant Singh immediately after his death as he had been visiting Paonta Sahib in the year 1969-70 in connection with his business. Again Shri Narinder Singh, the eldest son of Beant Singh. asked Shri Santa Singh a common friend of the parties to approach the appellant and get the case pending in the High Court, compromised between them. Shri Santa went to Jagadhri and talked to the appellant but he showed no inclination for the compromise and also disclosed that he knew about the death of Shri Beant Singh even prior to December 1969.

6. It appears that subsequently the appellant filed C. M. P. 531/73. an application under Order 22, Rules 4 and 9 read with Section 151 of the C. P. C. for setting aside the abatement, if any.

7. Shri Krishan Lal appellant-applicant examined himself as his own witness to substantiate the cause for the delay and to rebut the evidence. Shri Amrit Singh. one of the legal representatives of Shri Beant Singh appeared as a witness and also filed affidavit of Santa Singh who is stated to be a common friend of the parties and who had been approached by Narinder Singh, the eldest son of Beant Singh to get a compromise brought about between them and the appellant in the appeal pending before the High Court.

8. After the close of the evidence we heard the counsel for the parties. It is admitted by the appellant that Beant Singh died on 23-8-69 in P. G. I. hospital at Chandigarh. The limitation for making an application for bringing the legal representatives on the record is governed by Article 177 of the Old Limitation Act and 120 of the New Limitation. Act of 1963. The limitation is 90 days from the date of the death of the plaintiff, appellant, defendant or respondent as the case may be. If no application as contemplated under Order 22, Rule 4 (1) is made within the prescribed period of 90 days, then under Order 22, Rule 4 (3) the suit or the appeal shall abate. In the instant case admittedly their being no application made within the prescribed period the appeal, therefore, has abated. Now the question is whether there is sufficient cause shown by the appellant for not making an application to bring the legal representatives on the record as also to set aside the abatement.

9. The learned Counsel for the parties have cited various authorities to show as to what is a sufficient cause and according to the learned Counsel for the appellant-petitioner the authorities are all applicable to the facts of the case and further that he has established from his evidence that there was sufficient cause which prevented him from making an application for bringing the legal representatives on the record. He did not go to Nahan or Paonta Sahib after the year 1961-62 and it was only on receipt of notice on 7th April, 1973, that he learnt about the death of Beant Singh and then he appeared on 7th May 1973, as required by the High Court. On that date on his request he was allowed two weeks' time to file the reply to the application and on 25th he filed the reply after ascertaining the names of the legal representatives of Beant Singh and that there was no gross negligence or inaction on his part.

10. The first authority relied upon is Shiam Behari Lal v. Swami Viraga Nand, (1968-2 Delhi HC Notes 33) wherein the respondent died on 11-4-1964 and an application under Order 22, Rules 4, 9, and 11 and Section 151, Civil Proce dure Code read with Section 5 of the Indian Limitation Act was presented in the Court on 1-8-67. The ground on which the extension of the time was sought was that the appellant was a resident of U. P. and had been casually coming to Delhi once in about three or four months and Swami Viraga Nand was a permanent resident of village Anandpur, Madhya Pradesh. The distance between Anandpur and Badaun was 600 miles. The address of the Swami was unprecise and vague and no name of the Tehsil or District was mentioned and that the knowledge of the death of the respondent was acquired by the appellant only after the appeal was held by the Court to have abated and intimation thereof was sent to him by the counsel. The court found that on 15-2-1967. the counsel for the Swami (respondent) represented to the Court that he was a counsel on behalf of the respondent and applied for a printed copy of the paper book. This application was allowed and a copy was received by the clerk of the learned counsel and there was another requisition on the record dated 13-3-1967 for a copy of a printed paper book by another Advocate for respondent No. 1 and this copy was also received by his clerk. There was also an engagement slip filed in the court by the Advocate dated 13-3-1967 stating that he had been authorised to appear in the Court in that case by respondent No. 1 on his behalf and it was under these circumstances that the Court concluded that the attorney of Swami had kept the factum of Viraga Nand's death a concealed secret even from his counsel. If the Swami had died in April 1964, it was not understood how another counsel had been engaged by his attorney and how the counsel already engaged could have represented to the court that he desired to secure the printed copy of the paper book for his client. The client having died the counsel did not represent anyone in the litigation and the only course was to intimate to the court that he was no longer a counsel in the case because his client had died. This course was not adopted It was in view of these circumstances that it was held that the appellant was prevented from sufficient cause in not applying for bringing on record the legal representatives of the deceased and also in applying for setting aside the abatement within the prescribed period. In the present case there is no doubt that the distance between Paonta Sabib and Jagadhri where the appellant is carrying on his timber business is about 60 to 65 miles. But it is in the statement of Shri Santa Singh whose affidavit has been filed on the record that at the request of Shri Narinder Singh, for a compromise with the appellant he approached the appellant at Jagadhri in the month of December, 1969 and talked to him about the compromise, but the appellant did not show any inclination. Further from the affidavit of Shri Santa Singh, it is also clear that during his talk with the appellant, the latter told him that he knew about the death of Shri Beant Singh even prior to that. From this evidence of Santa Singh, it is. therefore, obvious that the appellant had knowledge about the death of Beant Singh even prior to December, 1969, when he was approached by Santa Singh at the instance of Narinder Singh for a compromise in the appeal pending in the High Court. So the question of distance between two places or the distance between Jagadhri and Nahan is quite immaterial.

11. The learned counsel for the appellant-respondent had contended that the statemenl of Shri Santa Singh which was not subjected to cross-examination could not be relied upon, but this submission is barren of substance inasmuch as he did not make any request or an application to the Court for summoning Santa Singh for cross-examination in the Court. That being so the statement of Santa Singh which has not been subjected to cross-examination, must be held to have been admitted to be correct.

12. The second authority is Dinabandhu Sahu v. Jadumoni Mangaraj AIR 1954 SC 411. In this case it was held that the petition under Section 81 had been presented in the post office one day earlier, and reached the Election Commission one day later than the due date. Even if the matter had to be judged under Section 5 of the Limitation Act, it would have been a proper exercise of the power in that section to have excused the delay. The expression 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. In the case in hand the appellant has not been able to establish that there was no negligence or inaction or want of bona fide imputable to him, so as to hold that there was sufficient cause which prevented him from making an application as contemplated under Order 22, Rules 4, 9 and 11 of the Civil Procedure Code. It would appear from the statement of Santa Singh that the appellant had knowledge about the death of Beant Singh even prior to December. 1969, and the statement of Santa Singh remains uncontroverted. Amrit Singh has stated that Santa Singh is a common friend of his family and of the appellant. The appellant has also admitted this fact that he knew Santa Singh since 1961-62. He had timber dealings with him (Santa Singh). After his appearance, in court on 7th May, 1973, and after taking two weeks' time to file the reply he first went to his counsel Manmohan Singh on 20th May. 1973, thereafter he came to Simla and engaged a lawyer and from Simla he left for Nahan to enquire about the legal representatives of the deceased. On 22nd May, he proceeded to Paonta Sahib and there he made enquiries from Santa Singh. This also confirms the fact that Santa Singh was a friend of the appellant and it was he who according to him furnished the names of the legal representatives. Therefore, in the circumstances it is to be inferred that Santa Singh did go to the appellant in December 1969 and he had a talk with him about compromise and the death of Beant Singh. The appellant, therefore, had knowledge of the death of Beant Singh even prior to December, 1969 and he admittedly took no action to file any application in the High Court to bring the legal representatives of the deceased on record or to make any application for setting aside the abatement if by that time the appeal had abated. Therefore, he is clearly guilty of gross negligence and inaction and this authority, therefore, will not assist him.

13. The third authority is Sarpanch Lonand Grampanchayat v Ramgiri Gosavi. AIR 1968 SC 222. This authority also lays down a similar principle as laid down in AIR 1954 SC 411.

14. The fourth authority is Manindra Land and Building Corporation Ltd. v. Bhutnath, AIR 1964 SC 1336. This authority is distinguishable from the case in hand inasmuch as in that case the Court was satisfied that there were no laches on the part of the applicant in applying for bringing the legal representatives on record as also to apply for the setting aside of the abatement of the suit. But in the case before us the petitioner had failed to show sufficient cause for his inaction. On the contrary as already stated he had knowledge about the death of Shri Beant Singh even before December 1969. Again his statement does not inspire confidence when he says that he did not visit Paonta Sahib and Nahan after 1961 or 1962. This statement stands contradicted when he says that as far as he could recall he was proceeded against in an execution of a decree in 1966-67 and his property was attached, but he made no payment nor the property was sold. He did not visit Nahan thereafter. This would show that the earlier statement that he did not visit Paonta Sahib after 1961-62 is false. Again he knew Santa Singh since 1961-62 as he has timber business with him. It is not denied that Santa Singh is a resident of Paonta Sahib and admittedly the petitioner had timber business with him. Therefore, it must be presumed that he had been visiting Paonta even after 1961-62 and that his deposing that he never visited Paonta Sahib after 1961-62 is not correct. He is suppressing the true facts. He is guilty of gross negligence and inaction in making the application. The record shows that the suit out of which the appeal was taken to the High Court was filed in 1964 and it was decided by the Senior Sub-Judge Nahan in 1966 and it has been pointed out by the learned Counsel for the proposed legal representatives of Beant Singh that the appellant attended the Court at every hearing and, therefore, his statement that he did not visit Nahan after 1961-62 also stands belied. Again from the statement of Shri Amrit Singh, it is apparent that Shri Bakhtawar Singh was the counsel of the appellant in the case at Nahan as also in the appeal and this gentleman met Amrit Singh at Nahan in the year 1970 and he talked to him about the death of his father. From this also the learned Counsel for the respondent rightly wants us to believe that Bakhtawar Singh knew about the death of Beant Singh before 1970 and he was a counsel for the appellant and naturally the counsel also must have conveyed the news about his death to him if he had not known it earlier.

15. From the above, it, therefore, follows that the appellant petitioner had been visiting Paonta Sahib and that he had knowledge about the death of Shri Beant Singh before December, 1969. According to Union of India v. Ram Charan, AIR 1964 SC 215. '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 the suit. 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.'

16. In the aforesaid authority it has further been held that the limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 177 First Schedule to the Limitation Act. provides that : it does not provide that limitation will start from the date of the appellant's knowledge thereof. In view of this authority it was for the appellant-petitioner to substantiate the cause or the reasons which prevented him from knowing about the death of the respondent within time. He has not given any reasonable account for the same. On the contrary it is apparent from the evidence on the record that he had knowledge about the death of the respondent even prior to December. 1969, and he acted with gross negligence and inaction in making an application under Order 22, Rule 4 and even then he did not make any application as required under Rule 9 for setting aside the abatement. It was only on an objection being taken bv the proposed legal representatives of the deceased that the appellant made another application for setting aside the abatement only in August 1973, and he had to account for each day's delay. Hence for these reasons, the applications for bringing the legal representatives on the record as also for setting aside the abatement, fail and are hereby dismissed, with no order as to costs.

R.S. Pathak, C.J.

I agree.


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