Punjab-Haryana High Court
Bija vs Raja Ram And Ors. on 21 November, 1997
Equivalent citations: (1998)118PLR493
Author: B. Rai
Bench: B. Rai
JUDGMENT B. Rai, J.
1. There are two applications, one under Order 22 Rule 3 C.P.C. for bringing on record the Jegal representatives of sole Appellant Bija son of Sammu and another Under Section 5 of the Limitation Act, for condonation of delay in filing the application under Order 22 Rule 3 C.P.C.
2. Bija son of Sammu filed civil suit No. 449 on 22.7.1967, for declaration to the effect that he has become full and absolute owner in possession of the suit land mentioned in the schedule attached with the plaint by lapse of time with a consequential relief by way of permanent injunction directing the defendants to vacate the possession of the suit property. The suit was contested by the defendants taking various pleas. After full trial, the suit was decreed with costs in favour of Bija plaintiff and he was declared to be the owner of the suit property. Consequently, the defendants were directed to vacate the possession vide judgment and decree dated 6.1.1975. The defendants feeling aggrieved by the judgment and decree of the trial Court filed Civil Appeal No. 316/13 of 1978 before the Additional District Judge, Karnal. The appeal was accepted judgment and decree of the trial court were set aside and the suit of Bija Plaintiff-respondent was dismissed living the parties to bear their own costs.
3. Bija having failed in the first appellate Court took the matter to this Court by filing Regular Second Appeal No. 2408 of 1979. During the pendency of the appeal, Bija sole appellant died on 25.7.1988. The legal representatives of Bija filed an application under Order 22 Rule 3 C.P.C. It is pleaded in the application that Bija was being represented by Mr. P.S. Jain and Mr. V.M. Jain, Advocates, Mr. P.S. Jain, Senior Advocate, expired while Mr. V.M. Jain, joined the superior Judicial Service Haryana. Bija died leaving behind the legal representatives mentioned in para 3 of the application. According to the applicants, none of the representatives was aware of the pendency of the appeal till the receipt of the letter Annexure A from the office of Mr. R.S. Mittal, Senior Advocate. Case of the applicants is that on receipt of the said letter, they came to Chandigarh and made enquiries about the case. They contracted the counsel for taking necessary steps in the matter. They were advised to obtain a copy of death certificate and power of attorney of all the legal representatives of Baja deceased. Their further case is that they were residing at different places and as such took some time in obtaining signatures and thumb impressions of all the legal representatives on the power of attorney. It is further pleaded that if abetment is not set aside, they would suffer substantial injury. They further pleaded that the rule of abetment is working great hardships to the litigants and their representatives therefore this court was pleased to amend the rules according to which now it is not necessary to bring on record the legal representatives of deceased party. There is delay of 8 years 3 months and 8 days in filing application, Alongwith the application under Order 22 Rule 3 C.P.C. an application Under Section 5 of the Limitation Act, 1963 was filed on the same grounds as set out in the application under Order 22 Rule 3 C.P.C. It is also pleaded that if the limitation is reckoned from the date of knowledge then the application is within time. According to them, they have not gained in any manner in not filing the application in time. The delay according to them was beyond their control. On these grounds, a prayer has been made for condonation of delay in filing the application for bringing on record the legal representatives of the deceased on record and also to set a side abatement.
4. On notice, defendant-respondents filed reply in the form of affidavit of Raja Ram son of Sadhu Ram, resident of village Kakehri Tehsil Guhla, Distt. Kaithal, contesting the claim of the applicants. It was set out in the affidavit that the application Under Section 5 of the Act and under Order 22 Rule 3 C.P.C. are not maintainable after the expiry of 150 days from the date of death of Bija who died on 25.7.88 and appeal stood abated by operation of law. It is further pleaded that no application for setting aside of abatement was filed and therefore, the mere application for bringing on record the legal representatives of Bija deceased-appellant is not maintainable. According to the respondents, until and unless the abetment of the appeal is set aside and it is restored, the application for bringing on record the legal representatives of the deceased appellant, is not maintainable. On merits, it was pleaded that the legal representatives of the deceased were living with him at the time of his death and were having full knowledge of the pendency of the appeal and prayed for dismissal of the applications. At the request of the learned counsel for the applicants, case was adjourned a number of times. Mr. Ashish Kapoor, Advocate, put in appearance and again requested for adjournment. Finding no reasonably sufficient ground to adjourn the case, the prayer was declined. Learned counsel for applicants did not address any arguments. However, learned counsel for the respondents was heard and record was perused with his assistance.
5. It is admitted case of the parties that Bija sole appellant died on 25.7.1988 (death certificate is Annexure A). Legal representatives of Bija were required to be brought on record within 90 days from the date of death but they did not come forward with the prayer to bring them on record within the prescribed period. The appeal, therefore, stood abated on the expiry of 90 days from the date of death. The application for setting aside abatement could be made within next 60 days as provided under Article 121 of the Act. The application for setting aside abatement was also not filed within the prescribed period. Rules 3 and 4 read with Rule 11 of Order 22 C.P.C, provide procedure for bringing on record the legal representatives of the deceased party. The provisions aforesaid are silent as to who is to make the application but keeping in view the fact that defendant or respondent, as the case may be, could stand to gain on account of abatment of suit or appeal, therefore, ordinarily the application is to be made either by plaintiff or appellant(s). Court itself has no independent power to add the legal representatives of the parties. Application is necessary to be made for the purpose. If no such application is made within time allowed by law, the suit or appeal, as the case may be, would abate so far as the deceased plaintiff or appellant is concerned or as against the deceased defendant or respondent. The effect of abatement on the suit or appeal of the surviving plaintiff or appellant or the suit or appeal against the surviving defendant or respondents would depend on other circumstances, as well. In this regard reference may be made to the Full Bench decision of the Calcutta High Court in the Corporation of Calcutta v. Murari Churn, AIR 1976 Calcutta 299.
6. It is nowhere provided that if an application is made for the purpose 150 days after the death of the deceased party, in no circumstances, the Court has power to allow such application. If a party wants to be impleaded as legal representatives of the deceased, the party had to satisfy the Court from the reasons disclosed in the affidavit that there was "sufficient cause" for not making the application in time. In Union of India v. Ram Charan, AIR 1964 SC 215, it is clearly indicated that if the Court is satisfied that there are materials before it which do not disclose culpable negligence or mala fides and that there was "sufficient cause" in not making the necessary application within time, the Court has the power to condone the delay and permit the legal representatives to be substituted in place of deceased. In the instant case, the application for dismissal of appeal as having abated was filed by the respondents on 3.3.1997. Counsel for the appellant, on 10.3.1997 sought time to file reply to the said application. Accordingly, the case was adjourned to 21.3.1997. On the adjourned date also, counsel sought further time to file reply. The case, therefore, was adjourned to 21.4.1997. Applications Under section 5 of the Act and under Order 22 Rule 3 C.P.C. appear to have been typed on 193.1997, but these were filed on 11.4.1997. Thus, these applications were filed 29 days after the application was filed on 3.3.1997 by the representatives. This delay has not been explained at all. As stated in the applications, according to the applicants themselves, there was delay of 8 years 3 months and 8 days in filing the application. It is well settled that whenever a party seeks condonation of delay in filing the suit, appeal or application, each day's delay has to be explained. Not only that, in order to satisfy the. Court, "sufficient cause" has to be shown for condonation of delay for setting aside the abatement and to bring the legal representatives of the deceased party on record. It was, therefore, incumbent upon the applicants to prove that there was "sufficient cause" for continuing the appeal within the prescribed period but in the instant case, no sufficient cause has been shown. After the expiry of the period prescribed by the law of limitation, the appeal stood abated. Even formal orders regarding abatement of suit or appeal is not required to be passed by the Court.
7. It is pleaded by the applicants that they came to know about the death of Bija on receipt of letter dated 10.3.1997 and if the limitation is counted from the date of knowledge, the same is well within time. In view of the provisions contained in Articles 120 and 121 of the Act, this plea does not hold good. Under Article 120 of the Act, period of 90 days is to be reckoned from the date of death of the plaintiff, appellant, defendant car respondent, as the case may be, and not from the date of knowledge and period of 60 days is to be counted from the date of abatement of the suit or appeal, in the instant case, the requisite applications were not filed within the period prescribed by the law of limitation. The main plank of the applicants seeking condonation of delay is dial they came to know about the death of deceased Bija only on receipt of letter dated 103.1997, and it was not in their knowledge that the appeal was pending. It was argued by the learned counsel for the respondents that as a matter of fact, applicants were living with Bija deceased and had full knowledge of the pendency of the appeal. This plea contained in the affidavit of the respondents has not been controverted by the applicants by filing a counter affidavit. In the instant case, there is an inordinate delay of 8 years 3 months and 8 days but neither the necessary applications were made within the period prescribed nor any ''sufficient cause" has been shown to the satisfaction of this Court for condonation of delay. In the factual matrix, the applicants have badly failed to explain the inordinate delay by showing "sufficient cause" for not filing the application within the stipulated period.
8. A contention has been raised that in the year 1992, this Court keeping in view the difficulties faced on account of the rule of abatement, made amendment in Rule 3 of Order 22 of the Code of Civil Procedure, 1980 (for short referred to as C.P.C.) and added Rule 3(2), according to which if an application is not made under Sub-rule (1) within the time limited by law, the suit shall not abate against the deceased plaintiff and the judgment may be pronounced notwithstanding his death and the same shall have been the effect- as if it was pronounced before the death took place. Therefore, in view of this amended rule, it has to be taken that the appeal has not abated and still survives for decision on merits. If the case of death of sole plaintiff or defendant, the contention raised does not hold good.
9. It is pertinent to note that earlier Order 22 Rule 3(4) C.P.C. which refers to the procedure to be followed in case of death of one of the several defendants or sole defendant, was amended by the High Court vide notification dated 25.3.1975. Retrospectivity/prospectively of the amended rule came up for consideration before the Division Bench of this Court in Banta Singh v. Smt. Santi and Ors., 1977 PLJ 452. The learned Judges constituting the Bench held as under-
"......The amendments noticed above were not enforced retrospectively and the question of abatement of the appeal has to be determined according, to the law prevalent at the relevant time. As noticed above, the second appeal in the present case stood abated on November 1, 1972 which created vested right in favour of the respondent. It is settled law that vested right cap not be taken away by a future amendment in the law unless the amendment is expressly made retrospective or there is some indication in the provision which makes it of retrospective operation. The amendments noticed above have not been made expressly retrospective in operation nor anything inherent in these rules has been brought to our notice to persuade us to hold that they have retrospective operation so as to revive even the appeals which already stood abated long before their enforcement."
10. As referred to above, in 1992 amendment was made in Rule 3. The question before the learned Single Judge for consideration was whether the amended rules have retrospective or prospective effect. The learned Single judge after taking into consideration the decisions in a number of cases held that on the reasoning recorded in Banta Singh's case (supra), there is a scope for taking the contrary view respect of the applicability of Order 22 Rule 3(2) C.P.C. to the case in hand, amendment made in 1992, as referred to above, does not expressly or by necessary implication suggest that it would revive the appeals which have already abated. Thus this amendment is to be made effective prospectively and not retrospectively to revive the appeals which already stood abated under the law prevalent at the relevant time.
11. It cannot be disputed that the procedural law becomes effective from the date it is expressly made effective or by necessary implication suggests particular effect and does not have retrospective effect until and unless it is expressly mentioned therein. Therefore, the amendment made in the procedural law has to be interpreted in the same manner. Amended Rule 3(2) of Order 22, pressed into service is not at all helpful to the applicants. Therefore, the result follows that this appeal stood abated on the expiry of 150 days of death of Bija sole appellant.
12. For the reasons recorded above, the application dated 2.3.1997 filed by respondents is accepted and it is held that the appeal stood abated. Applications Under Section 5 of the Limited Act and Order 22 Rule 3 C.P.C. are dismissed.