Jharkhand High Court
Sumitri Devi And Ors. vs State Of Jharkhand And Ors. on 11 June, 2002
Equivalent citations: 2002(50)BLJR1479, 2002 AIR JHAR HCR 1112, 2002 A I H C 4357, (2005) 3 JLJR 57, (2002) 2 JCR 628 (JHA), 2002 BLJR 2 1479
Author: Tapen Sen
Bench: Tapen Sen
ORDER
1. This has reference to the note of the Registrar General sitting in Lawazima Board on 9th May, 2002, while dealing with the substitution application filed by the appellants in terms of the Rule 98 of the High Court Rules. On perusal of the file, we find that the appeal was filed in the year 1999 and as per the contents of the substitution application itself (filed on 3rd April, 2002), the appellants admit that the respondent No. 5 had died before the appeal was presented in this Court but that they came to know of his death only "recently."
2. The Registrar General in his not dated 9.5.2002 has note taken up of the substitution application for disposal because he felt that the same being time barred should be referred to the Court for appropriate order in terms of Rule 100 of the High Court Rules.
3. Mr. Tiwary, learned counsel appearing for the appellants, submits that Rule 98 of the High Court Rules dealing with such a situation does not enjoin upon the parry applying for substitution to make any separate application for condonation and that the language of Rule 98 is clearly suggestive of the fact that merely on filing an affidavit and cause shown even a time barred substitution application can be considered by the Registrar General.
4. Undoubtedly, Rule 98 of the High Court Rules does relate to a situation where an appellant is permitted to apply for substitution of the legal representatives of any party named in the Memorandum of Appeal, who had died before the appeal was presented and to the extent for the amendment of the Memorandum of Appeal by the substitution of the person who might be the legal representative of the deceased respondent but this Rule by itself cannot supersede the specific provisions of the Limitation Act, which prescribe a specific period of limitation for filing an application for substitution of legal representatives of a deceased respondent. Article 120 in the Schedule to the Limitation Act prescribes a period of 90 days from the date of the death of the party as the limitation period for filing the application for substitution. This Article reads thus:--
120. Under the Code of Civil Procedure, (5 of 1908), to have the legal representative of a deceased "plaintiff or appellant or of a deceased defendant or respondent, made a party.
Ninety days The date of death of the plaintiff, appellant, defendant or respondent as the case maybe.
5. There being a clear provision in the Limitation Act prescribing a specific period of limitation for substitution, the intention behind framing Rule 98 in the High Court Rules could not have been to either ignore or supersede the limitation aspect, in so far as any substitution application was concerned, even if it related to a matter where at the time of presentation of an appeal, the appellant did not know about the death of a respondent. If any doubt persists on this account, as was sought to be canvassed by Mr. Tiwary during the course of his argument, the same is taken care of in the explicit language employed in Rule 100 of the High Court Rules, which lays down that all matters covered by and all applications filed under Chapter XII shall be disposed of by the Registrar General, except those matters where the applications are barred by limitation. For ready reference, we quote Rule 100, which reads thus:--
100.(i) All matters covered by and all applications filed under this Chapter shall be disposed of by the Registrar General except in such cases which are, or appear to him to be, barred by limitation.
(ii) All matters or applications barred by limitation shall be referred by the Registrar General to the Court which , if it condones the delay, may remit the same to Registrar General for disposal in accordance with these Rules."
6. Order XXII of the Code of Civil Procedure clearly lays down that all the provisions contained therein would apply to appeals as well. Rule 11 of Order XXII dealing with the appeals reads thus:--
"11. Application of Order to appeals.--In the application of this Order to appeals, so far as may be, the word "plaintiff shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal."
7. Based on the aforesaid discussion, therefore, we have no hesitation in holding that despite there being a provision in Rule 98 of the High Court Rules enabling an appellant to file a substitution application with respect to a respondent who had died before presentation of the appeal, the rigour of limitation always comes into play and it is not open to an appellant to contend, taking the shelter behind Rule 98, to say that the Limitation Act does not apply to a substitution application in such a situation and that merely showing diligence, the application for substitution should be allowed. We hold that even in such a situation, Article 120 of the Schedule of the Limitation Act does apply and if an application is not made within the limitation period prescribed, the same is liable to be dismissed.
8. Any application filed for substitution either under Order XXII of the Code of Civil Procedure or under Chapter XII of the High Court Rules, even though has to be within the limitation period as prescribed under Article 120 (supra), if the same is barred by limitation, any applicant intending to take the benefit of Section 5 of the Limitation Act, is always at liberty to apply for condonation of delay and if such an application for condonation is made and if any such applicant offers plausible explanation and gives sufficient cause to the satisfaction of the Court as to the reasons and grounds which prevented him from applying within the limitation period, the Court always considers such an application on its merits and if satisfied that the delay was bona fide and the explanation offered is plausible and the cause shown is sufficient, the delay can be condoned.
9. At this stage. Mr. Tiwary, learned counsel appearing for the appellants, undertakes to file an application for condonation of delay. Let the matter appear again, if Mr. Tiwary files such an application. Orders on that application shall be passed on the merit of the case uninfluenced by any observations contained in this order.
10. Mr. P.P.N. Roy, learned counsel appearing for the respondents, submits that the matter already being very old. We should fix a time limit for filing of the condonation application.
11. Without binding ourselves in any manner, we give two weeks to the appellants to file such an application, which, of course, shall be considered only on its merits. However, if no such application is filed within two weeks from today, the substitution application shall automatically stand dismissed without any reference to the Bench.