Punjab-Haryana High Court
Bahadur Singh And Ors. vs Har Kaur And Ors. on 27 January, 1960
JUDGMENT
1. This appeal must be dismissed as having abated. T he relevant facts are undisputed and are these, Shrimati Har Kaur, the sole respondent died on the 6th of May, 1960. By a letter dated the 23rd of July, 1960, the counsel for the appellants informed them about her death and, on the 9th of August, 1960, an application was made on their behalf praying that six persons be impleaded as respondents in substitution for Shrimati Har Kaur.
The application as well as the affidavits filed in support of it stated:-
"Har Kaur respondent was residing in village Bhangala Tehsil Patti, District Amritsar, which is at a distance of about 20-25 miles from the residential village of appellants, while going via Railway or Motor-Bus, the distance is about 40 miles The appellants had no occasion or concern to go to the village of Shrimati Har Kaur and the news of the death of respondent came by the letter of their counsel dated 23-7-1960, which was received a few days ago."
No other reason for making the application after the expiry of 90 days from the death of Shrimati Har Kaur was put forward by the appellants. On the 4th of November, 1960, another application was made on their behalf with the prayer that 2 more persons be added to the list of legal representatives of Shrimati Har Kaur and that a correction be made about the name of one of the six who were sought to be brought on the record by means of the earlier application. Both these applications were granted by Pandit, J. subject to all just exceptions.
2. Even if it be taken for granted that the appellants had no knowledge of the death of Shrimati Har Kaur prior to the receipt by them of the letter dated the 23rd of July, 1960 said too have been written to them by their counsel, they have failed to show and even to put forward any sufficient reason for not making the earlier application within the period allowed by law which expired no earlier than the 4 th of August, 1960. The said letter, it may be presumed was received by them on the day when it would have normally reached them by post and I do not think it would be legitimate for the Court to assume that they were in receipt of it later than, say, the 28th of July, 1960, especially when they have remained content with making a very vague allegation in this regard, that being to the effect:
"the letter of their counsel, which was received a few days ago."
If the letter reached the appellants on the 27th or 28th of July, 1960, they could easily obtain information about the names and other particulars of Shrimati Har Kaur's legal representatives within a day or two and then make the required application under Rule 9 of Order 22 of the Code of Civil Procedure on or before the 4th of August, 1960. That they failed to do and they have only themselves to blame for the expiry of the period of limitation provided for the making of an application praying that the legal representatives of the deceased party be brought on the record. Their failure has operated to vest a right in the opposite party and that right cannot be taken away unless the appellants are able to show sufficient cause for not making the application within time.
3. Learned counsel for the appellants relies upon the following observations in Firm Dittu Ram Eyedan v. Om Press Co. Ltd., Fazilka, AIR 1960 Punj 335 (FB) in support of his contention that the abovementioned failure on their part is liable to be condoned:-
"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 him 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."
These observations are of no help to case of the appellants as they have failed to show that they were prevented from making the required application within time due to circumstances beyond their control or despite reasonable diligence. On the other hand, according to what they stated in their first application and the affidavits supporting it, such diligence on their part has negatived and an inference is deducible that they could very well have made the required application within time if they had been just a little more careful. In this connection, the following observations of Tek Chand, J. in the Full Bench authority quoted above may be reproduced with advantage:-
"I am however, of the view that before ignorance of death can be deemed to be a good ground, there must exist good grounds for ignorance not attributable to negligence. When law imposes an obligation on a person to bring legal representatives of deceased opponent on the record, within the prescribed period, mere want of knowledge of death, will be insufficient to secure him against consequences of abatement of his suit or appeal; he has further to show absence of want of care, when reasonable vigilance is a duty, unqualified ignorance cannot be deemed venial. Want of information may be overlooked if want was not induced by neglectful indifference or blameworthy remissness. Allowing oneself to remain in the dark cannot be treated as a pursuasive ground for condonation of delay.
"The burden cannot be cast upon the opposite party who secures a valuable advantage by the lapse of period of limitation, to adduce proof of facts and circumstances showing negligence or want of good faith on the part of the applicant. In the absence of circumstances or proof of want of negligence, a bald statement that the applicant was ignorant of the death cannot be deemed sufficient for revival of the suit or appal."
These observations apply with full force to the facts of the present case in which negligence on the part of the appellants to acquaint themselves with the necessary facts is made out.
4. In the result, the appeal is dismissed but the parties are left to bear their own costs.
5. Appeal dismissed.