Delhi District Court
By This Order I Shall Decide Application ... vs State & Others 6/6 on 23 October, 2015
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
PC No. 149/10/07
Jagmohan Gupta
vs.
STATE & OTHERS
ORDER
23.10.2015
1. By this order I shall decide application under Order 22 Rule 4 read with Section 151 CPC for bringing on record legal heirs/representatives of late Sh. Ashok Kumar, Objector no. 2. Another application under Section 5 of Limitation Act filed by petitioner.
2. It is stated that during the pendency of the present petition, Objector/Respondent no. 2 Sh. Ashok Kumar expired on 24.08.2011 and survived by legal representatives, namely, Ms. Sudha Aggarwal, Ms. Neeta Kumar and Ms. Shruti Aggarwal. The petitioner's right to sue survive against Lrs of Objector no. 2. Thereafter, leave is sought to make them party in the present case. In application under Section 5 of Limitation Act, it is stated that on 13.10.2011 when the matter was listed for respondent's evidence, the Ld. Counsel for respondent no.2 informed the court about the demise of respondent no.2 but failed to furnish details of LRs. It is stated that during the interregnum, in the last week of October, the petitioner was suffering from serious depression PC No.149/10/97 Jagmohan Gupta vs. State & Others 6/6 and under medication and supervision of Doctor. Therefore, could not apply to move out and dependent upon family members for day to day activities. In January, 2012 after recovery, applicant get the details of LRs of deceased respondent no.2 from the close relatives. Thereafter, application was filed with delay of 17 days. The delay caused is not intentional or deliberate but due to these reasons. It is prayed that 17 days delay may be condoned in the interest of justice.
3. Proposed LRs of respondent /Objector no. 2 filed reply to both the applications and it is stated that petitioner is the brother-in-law of respondent no. 2, who died on 24.08.2011. The petitioner was well aware of death being close relative and also aware of legal representative of respondent no.2. The facts regarding suffering from depression denied. It is stated that petitioner is hail and hearty and doing his all day to day activities including opening of business. Therefore, no sufficient cause for delay in filing the application. It is stated that there is no sufficient cause, therefore, the application is liable to be dismissed.
4. On application under Order 22 Rule 4 CPC, it is stated that the petition has already been abated because it was not filed in prescribed time, therefore, application is liable to be dismissed.
5. I have heard Ld. Counsel for the petitioner Sh.Praveen Chauhan and Sh. Sanjay Aggarwal, Ld. Counsel for LRs of respondent no.2.
PC No.149/10/97 Jagmohan Gupta vs. State & Others 6/6
6. Ld. Counsel for the petitioner relief upon the following judgment in support of his arguments:
1. Urban Improvement Trust, Jodhpur vs. Gokul Narain, 1996 AIR (SC) 1819.
2. State Bank of India vs. Amritsar Engineering Works & Ors., 40 (1990) DLT 463.
3. Food Corporation of India, Tadepalligudem vs. Sri Ramachandra Boiled and Raw Rice Mill and others, AIR 1985, Andhra Pradesh 23.
7. Ld. Counsel for the respondent no. 2 has relied upon the following judgment in support of his arguments:
Thakur Bir Randhir Singh vs. Thakur Kartar Singh (deceased) through LRs, 50 (1993) DLT 419.
8. I have gone through the record and perused the judgments. As per record, respondent no. 2 Sh. Ashok Kumar died on 24.08.2011. The first application filed by the petitioner for impleading LRs on 27.01.2012 after 64 days. Thereafter, an application under Section 5 of Limitation Act for condonation of delay was filed on 13.03.2012. On 23.04.2013, another application filed under Section 6 Rule 17 CPC for amendment of application under Order 22 Rule 4 CPC. The amendment was allowed vide order dated 30.07.2013. The law is well settled that as per Order 22 Rule 4 CPC, the steps shall be taken within 90 days from the date of the death to bring legal representatives on record. The automatic effect is that suit/petition abates. In these PC No.149/10/97 Jagmohan Gupta vs. State & Others 6/6 circumstances, Order 22 Rule 9 CPC comes into play, according to which Section 5 of Limitation Act is applicable. The law is settled by Hon'ble Supreme Court in 'State of Madhya Pradesh vs. S.S. Akolkar' AIR 1996 SC 1984. In the judgment, it was held as under:
"................
7. It is settled law that the consideration for condonation of delay under S. 5 of Limitation Act and setting aside of the abatement under O. 22 are entirely distinct and different. ................ The Court always liberally considers the latter, though in some case, the Court may refuse to condone the delay under S. 5 in filing the appeals. ................ It is true that S. 5 of Limitation Act would be applicable and delay is required to be explained. The delay in official business requires its broach and approach from public justice perspective.
9. The delay is condoned. The abatement is set aside and the legal representatives are brought on record. ............"
9. In a recent case 'Lanka Venkateshwarlu vs. State of Andhra Pradesh & Others' (2011) 4 SCC 363, Hon'ble Supreme Court of India while discussing the matters Balwant Singh v. Jagdish Singh (2010) 8 SCC 685 : (2010) 3 SCC (Civ) 537; N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123; Mithailal Dalsangar Singh v. Annabai Deram Kini, (2003) 10 SCC 691; Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272; Collector (L.A.) v. Katiji, (1987) 2 SCC 107, has held as under:
PC No.149/10/97 Jagmohan Gupta vs. State & Others 6/6 "The courts in this country, including the Supreme Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. However, the concepts such as "liberal approach", justice oriented approach, "substantial justice" cannot be employed to jettison the substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally."
10. Now applying the principle of Lanka Venkateswarlu's case (Supra), in the present circumstances also a liberal approach is adopted and delay on the basis of sufficient cause shown in regard to illness of the petitioner during the relevant time, the application under Section 5 of PC No.149/10/97 Jagmohan Gupta vs. State & Others 6/6 Limitation Act is allowed. Abatement is set aside. The LRs of respondent no. 2 shall be brought on record. Amended memo shall be filed by the petitioner. The applications under Order 22 Rule 4 read with Section 151 CPC and under Section 5 of Limitation Act are disposed of accordingly subject to payment of cost of Rs.2000/-.
Announced in the open court today the 23rd day of October, 2015.
(Sanjay Kumar) ADJ-02,West/Delhi 23.10.2015 PC No.149/10/97 Jagmohan Gupta vs. State & Others 6/6