Punjab-Haryana High Court
Smt. Goman Wanti vs Darshan Singh And Anr. on 18 January, 2006
Equivalent citations: (2006)143PLR356
JUDGMENT M.M. Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the concurrent findings of fact recorded by both the Courts below holding that Goman Wanti (now deceased) was net owner of the house in dispute as her vendor Amar Nath was not entitled to pass any valid title to her by way of sale deed dated 4.12.1972 (Ex.PW-1/3) because the Power of Attorney in favour of her vendor Amar Nath was cancelled by way of cancellation deed dated 30.5,1962. After the aforementioned cancellation, the vendor of the plaintiff-appellant did not have any power to execute the sale deed in favour of Goman Wanti (now deceased). The findings of the learned lower appellate court in that regard are discernible from para Nos. 10 and 11 and the same read as under:
10. The power of attorney on the record is Ex. P-1/1. It was executed by Darshan Singh in favour of Amar Nath son of Ram Rakha. It is dated 7.10.1960. Darshan Singh thereby authorised Amar Nath to sell the house of Ram Rakha only. This power of attorney was cancelled through writing Ex.D-3. It is dated May 30, 1962. So I hold that Darshan Singh had appointed Amar Nath as his attorney on October 7, 1960 the deed being Ex.P-1/1 and had cancelled the same on May 30, 1962 vide deed Ex.D-3. Issues Nos. 5, 6-A and 9.
11. All these issues being connected are discussed at one place. The agreement of sale by Darshan Singh in favour of Ram Rakha is Ex.P-1/2. The sale deed by Amar Nath as attorney of Darshan Singh in favour of the plaintiff is Ex.PW-1/3. Darshan Singh had purchased the property from the Rehabilitation Department, There is a recital in the agreement of sale Ex.PWl/2 about consideration having been paid by Ram Rakha to Darshan Singh. Darshan Singh admittedly was a labourer and had no bank account. There is no evidence that Darshan Singh was financed by anybody else other than the plaintiff. So the trial Court rightly held Darshan Singh had purchased the property with the money advanced by Ram Rakha, husband of the plaintiff but the sale deed in favour of the plaintiff is against the terms of the power of attorney because the power of attorney only authorised Amar Nath to execute the sale deed in favour of Ram Rakha and none else. The trial Court went wrong when it depended upon the findings of the Rent Controller to hold the sale deed in favour of the, plaintiff to be false. The finding by the Rent Controller in the dispute between the parties about the civil rights could not operate as res judicata. So I hold that the sale deed in favour of the plaintiff did not clothe her with any right but the same cannot be said to be false and forged.
2. During the pendency of the appeal filed in 1983, Goman Wanti died on 9.10.1991 at Amritsar. No attempt was made to bring on record her representatives within the stipulated period of 90 days. However, Civil Misc. No. 2597-C of 2004, dated 11.3.2004 was filed under Order XXII Rule 3 of the Code for bringing on record the legal representatives of the plaintiff-appellant asserting that the plaintiff-appellant has died on 9.10.1991 at Meharpura, District Amritsar and is survived by her three sons and a daughter, namely, Mangal Dass, Amar Nath, Bishamber Singh and Raj Rani. In support of the assertion a document with endorsement by Shri Vijay Kumar, Councillor, Municipal Corporation, Amritsar, certifying that the plaintiff-appellant was cremated at Cremation Ground Amrit"^r has been attached as Annexure A-l. In paragraph 4 of the said application the assertion made is that only one legal representative Mangal Dass has come forward to get himself impleaded as appellant despite the knowledge of the pendency of the instant appeal and request was made that other LRs be brought on record as respondents. The averment made in paragraph 4 of the application along with the prayer is reproduced below:
4. That since only one of the legal representative of deceased Goman Wanti namely Shri Mangal Dass, the applicant has come forward to get himself impleaded as appellant despite the knowledge of the pendency of the instant appeal, hence Mangal Dass, applicant should be impleaded as Appellant and rest of the legal representatives as mentioned at Sr. No. (ii) to (iv) in para No. 2 above be impleaded as performa respondents as the above mentioned legal representatives have no interest adverse to Mangal Dass.
It is, therefore, respectfully prayed that instant application be allowed and the legal representatives of deceased Goman Wanti be brought on record in the interest of justice impleading Mangal Dass, applicant as Appellant and rest of the legal representatives as mentioned at Sr. No. (ii) to (iv) in para No. 2 as performa respondents.
3. The application is supported by a thumb marked affidavit of Mangal Dass, applicant. Notice of the application was issued and the defendant-respondents contested the same. When the application came up for consideration before this Court on 4.8.2004, the following order was passed:
C.M. No. 2597-C of 2004 and R.S.A. No. 1960 of 1983 Present: Mr. Sanjay Majithia, Advocate for the appellant.
Mr. B.R. Mahajan, Advocate for the respondents.
The prayer made in the present application is to bring on record the legal representatives of the sole appellant Gomanwanti.
As per the averments made in the application Gomanwanti died on October 9, 1991.
In view of the view of the aforesaid fact, it is apparent that since no legal representative of deceased appellant was brought on record, therefore, the appeal stands abated.
Faced with the aforesaid situation. Mr. Sanjay Majithia, the learned Counsel appearing for the appellant prays for time to seek necessary instructions.
Adjourned to August 25, 2004. Main case be also listed on that date.
Sd/-
(VINEY MITTAL) JUDGE August 4, 2004
4. In pursuance to the aforementioned observation made by this Court, learned Counsel for the applicant Mangal Dass filed an application dated 23.8.2004, under Section 5 of the Limitation Act, 1963 read with Order XXII Rule 1 of the code begin Civil Misc. No. 8232-C of 2004 along with an affidavit of Mangal Dass. It has been asserted that the legal representatives of the plaintiff-appellant are illiterate persons and did not have any knowledge that they were required to be brought on record within a period of 90 days from the date of death failing which appeal was to abate. It was further asserted that the legal representatives of the deceased plaintiff-appellant came to know about the pendency of the appeal when her counsel wrote a letter to her in the month of September, 2003 and one of the sons of Goman Wanti contacted the counsel disclosing the information that the plaintiff-appellant had expired on 9.10.1991. It is appropriate to mention that this Court has amended the Rules which came in operation with effect from 4.12.1992 and, therefore, the aforementioned amendment is not applicable to the present case as is admitted by the learned Counsel for both the parties. Further averment has been made on the basis of provisions of Order XXII Rule 1 that the right to sue survives and the appeal cannot be deemed to be abated on the expiry of 90 days from the date of the plaintiff-appellant. Accordingly condonation of delay of 12 years and 5 months in bringing on record the legal representatives of the deceased plaintiff-appellant has been sought.
5. In reply to the aforementioned application it has been asserted that there is inordinate delay and the appeal is deemed to be abated on 7.1.1992 when the period of 90 days from the date of death of the plaintiff-appellant expired and in law no appeal is deemed to be pending before this Court. It is further asserted that no application for setting aside the abatement has been filed but application for bringing on record the legal representatives along with an application for condonation of inordinate delay has been field and as a consequence a right has come to vest in the defendant-respondents by abatement of the appeal and the same cannot be taken way by-filing an application after more than 12 years and 7 months. The assertion with regard to acquiring knowledge of pendency of the appeal by the applicant has been refuted with the averment that the applicant himself had come to know about pendency of the appeal on 3.5.2002 when the same was listed before Hon'ble Mr. Justice J.S. Narang at Sr. No. 554. It was latter on shown on the Board of Hon'ble Mr. Justice N.K. Sud at Sr. No. 363 and was added on 17.9.2003 at Sr. No. 19 of the Wednesday List. The application for impleadment of legal representatives was filed on 11.3.2004, which is after about one year of the case having been listed in the Wednesday List, although the appeal had already abated in the year 1992. Moreover, all the legal representatives are not coming forward except one Mangal Dass, who has not been able to show sufficient cause for condonation of colossal delay of 12 years and 7 months. Some averments have been made on merits of the case controverting as well.
6. Having heard learned Counsel for the parties, I am of the considered view that the application for bringing on record legal representative Shri Mangal Dass son of the deceased plaintiff-appellant and the application seeking condonation of colossal delay of 12 years 4 months are liable to be dismissed being without any merit. Abatement of the appeal on account of failure to move application for bringing on record the legal representatives within the prescribed period of limitation of 90 days is automatic and no formal order is required to be passed by the Court in respect thereto. In that regard reliance may be placed on paras 8 of 9 of the judgment of the Supreme Court in the case of Mithalal Dalsangar Singh and Ors. v. Annabai Devram Kini and Ors. , and the same reads as under:
8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provisions of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representative on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or another applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach is such cases is not called for.
(Emphasis added)
9. The Courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the Court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of "sufficient cause" within the meaning of Sub-rule (2) of the Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.
7. The amendment dated 21.9.1992 in Order XXII Rule 3(2) made by this Court would not save the appeal from being abated as the amendment cannot be considered as retrospective. It is appropriate to mention that in the present case, the plaintiff-appellant has died on 9.10.1991 and the appeal is deemed to have abated on 7.1.1992 when the period of 90 days expired. The amendment has come into force on 21.9.1992, therefore, no benefit can be availed of the aforementioned amendment. For the aforementioned principle reliance may be placed on a Division Bench judgment of this Court in the case of Banta Singh v. Smt. Santi and Ors. 1977 P.L.J. 452. The view of the Division Bench has been followed by Single Benches of this Court in the cases of Jawala Singh v. Harnam Singh 1993 P.L.J. 83; Bija v. Raja Ram and Ors. (1998-1) 118 P.L.R. 483 and Kartar Singh v. Jaswant Singh (2005-3) 141 P.L.R. 78. It is nobody's case that the right to sue has survived and appeal could proceed after the death of the plaintiff-appellant. Therefore, examination of the facts of the present case from any angle would not leave any room for allowing the application. Accordingly, the appeal is deemed to have abated and no order are required to be passed in that regard.
8. Even on merit, the concurrent finding of the Courts below is that Goman Wanti did not acquire and valid title from Amar Nath who was holding a Power of Attorney from the owner of the property Shri Darshan Singh. It was Darshan Singh who had purchased the property from the Rehabilitation Department. The claim made was that the funds were provided by Shri Ram Rakha, husband of the plaintiff-appellant, for purchase of the property in dispute in the name of Darshan Singh. A power of attorney was executed on 7.10.1960 by Darshan Singh in favour of Amar Nath to sell house to the husband of the plaintiff-appellant Ram Rakha. However, the power of attorney was cancelled by Darshan Singh on 30.5.1962. Both the Courts below have upheld the cancellation of power of attorney by Ex.D-3. It was in these circumstances that the Courts below have further held that sale deed executed by Amar Nath in favour of the plaintiff-appellant is against the terms of the power of attorney as he was to execute the sale deed only in favour of the husband of the plaintiff-appellant Shri Ram Rakha despite the fact that the Courts below have further held that the property was purchased by Darhsn Singh out of the funds furnished by Ram Rakha Therefore, even on merits no interference of this Court would be warranted as the finding are on pure questions of facts. This appeal was admitted without framing any question of law on account of the fact that Section 41 of the Punjab Courts Act, 1918 was available, which did not require framing of question of law for admission of appeal. It, in fact, allows admission of appeal even on question of fact. The aforementioned provision has now been held repugnant to Section 100 of the Code in the case of Kulwant Kaur v. Gurdial Singh Mann , and therefore, the existence of a substantial question of law is sine qua non for adjudication in any second appeal under Section 100 of the Code. No such question exists in the present case. Therefore, the appeal even otherwise is liable to be dismissed on merits as well.
9. For the aforementioned reasons, this appeal fails and the same is dismissed as abated.