Delhi District Court
M/S Mahanagar Telephone Nigam Limited vs Smt. Swarn Kaur on 5 June, 2010
IN THE COURT OF DR. ARCHANA SINHA, ADJ (C-4), DELHI
RCA No. 2/08/98
Unique Case ID No. : 02404C0127552006
M/s MAHANAGAR TELEPHONE NIGAM LIMITED
having its office at :
Khurshid Lal Bhawan,
Janpath, New Delhi - 110001. .... APPELLANT
Versus
1. SMT. SWARN KAUR
Wife of Late Sh. Harbans Singh
M-523, Guru Harkrishan Nagar,
New Delhi.
2. SH. JASPAL SINGH
Son of Late Sh. Harbans Singh
M-523, Guru Harkrishan Nagar,
New Delhi.
3. SH. SURINDER SINGH
Son of Late Sh. Harbans Singh
M-523, Guru Harkrishan Nagar,
New Delhi.
4. SH. KULBIR SINGH
Son of Late Sh. Harbans Singh
13/323, Geeta Colony,
Delhi.
RCA No. 2/08/98 Page No. 1
5. SH. BALJEET SINGH
Son of Late Sh. Harbans Singh
13/323, Geeta Colony,
Delhi.
6. SH. BHUPINDER SINGH
Son of Late Sh. Harbans Singh
M-523, Guru Harkrishan Nagar,
New Delhi. ... Respondents
Date of institution : 25.04.1998
Date on which order was reserved : 22.05.2010
Date of decision : 05.06.2010
JUDGEMENT
1. This appeal arises from the orders dated 21.02.1998 of Ld. Civil Judge, Tis Hazari Courts, Delhi, vide which an application dated 08.07.1997 of the applicant Shri Kulbir Singh, one of the LRs of the defendant Shri Harbans Singh was allowed and the applications dated 26.08.1997 of the plaintiff under Order 22 Rule 4 CPC and another application under Order 22 Rule 4 (5) (b) read with Rule 9 and Section 5 of the Limitation Act, were dismissed, thereby dismissing the suit of the plaintiff.
2. The brief facts as brought on record were that, one Shri Harbans Singh was a subscriber of telephone No. 2244883 installed at premises No. 13/323, Geeta Colony, Delhi, subsequently, shifted to RCA No. 2/08/98 Page No. 2 premises No. 126/52A, Mohalla Chand, Gandhi Nagar and then again shifted back to the original place, i.e., premises No. 13/323, Geeta Colony, Delhi, and on failure to make the regular payments for the user of the services of the telephone, a suit bearing No. 1155/93 was filed for for recovery of Rs. 64,166/-, claiming the principal amount of Rs. 47,002/-, for the amount outstanding dues on the telephone along with an amount of Rs. 17,164/- towards interest @ 17.5% p.a.
3. During the pendency of the suit, the sole defendant Sh. Harbans Singh had expired on 15.05.1996 and an application dated 01.07.1997 was filed by one Sh. Kulbir Singh claiming abatement of the suit on the ground that the plaintiff in the event of death of the sole defendant Sh. Harbans Singh, has failed to bring the Legal Representative of the defendant within the stipulated period of limitation.
4. On receiving notice of such application, the plaintiff moved 2 applications, one under Order 22 Rule 4 CPC and another application under Order 22 Rule 4 (5) (b) read with Rule 9 and Section 5 of the Limitation Act praying for bringing the LRs of the defendant on record and also praying for dismissal of the application of the applicant Sh. Kulbir Singh, one of the LRs of the defendant on the ground that the plaintiff was kept in dark regarding the death of the defendant and on coming to know about the death of the defendant, he had moved an RCA No. 2/08/98 Page No. 3 application for bringing the LRs of the defendant on record within the stipulated period of limitation from the date of knowledge of the death of the defendant.
5. The Order dt. 21.02.1998 of the Ld. Civil Judge referred Article 120 of the Limitation Act expressing its findings that the time of limitation for moving an application for bringing the LRs of the defendant in the event of the death of the defendant had to be reckoned from the date of the death and not from the date of the knowledge about the death of the defendant and vide such orders Ld. Civil Judge had allowed the application of the applicant Sh. Kulbir Singh moved under Order 22 Rule 4 CPC ordering the abatement of the suit and dismissing the application of the plaintiff on the ground that the application under Order 22 Rule 4 CPC for bringing the LRs of the defendant, who died on 15.05.1996, as it was not moved within the stipulated period of limitation of 90 days, as prescribed under Article 120 of the Limitation Act thereby, the suit of the plaintiff was dismissed as a consequence of abatement of the suit in the event of death of the sole defendant Sh. Harbans Singh.
6. The appellant has preferred the appeal against the orders dt. 21.02.1998 on the ground that the stipulated period of 90 days for moving the application under Order 22 Rule 4 CPC should be calculated from the date of the knowledge about the death of the RCA No. 2/08/98 Page No. 4 defendant and on counting the stipulated period of limitation in that manner the application dated 26.08.1997 for bringing the LRs of defendant on record was within the period of limitation and also on the ground that Rule 10 A of Order 22 CPC casts a duty on the pleader of the deceased party to communicate to the Court about the death of such party and as the pleader's Vakalatnama was on record on behalf of the defendant, who expired on 15.05.1996 and the pleader of the defendant had not discharged his duty to inform the plaintiff or the Court regarding the death of the party, thus the orders dt. 21.02.1997 allowing abatement of the suit and the dismissal there upon may be set aside on such counts.
7. In support of its submissions, Ld. Counsel for the appellant had relied on the Law settled by the Higher Courts in the following cases:
(i) Smt. Shanta @ Chanchal Vs. Raja Ram & Others 76 (1998), DLT 261
(ii) Bhajaranglal Agarwal Vs. Channappa Hatpakki II (2001) SLT 542
(iii) Urban Improvement Trust, Jodhpur Vs. Gokul Narain AIR 1996 SC 1819
8. On careful perusal of the records placed before this Court, particularly, the observations made by Ld. Civil Judge in the impugned Order dt. 21.02.1998, in the light of the contentions of the Ld. Counsel for the appellant, it is observed that Ld. Civil Judge ordered that the suit shall stand abated qua the defendant Sh. Harbans Singh on the ground that the plaintiff had failed to move the appropriate application RCA No. 2/08/98 Page No. 5 for bringing the LRs of the deceased defendant on record within the stipulated of 90 days from the date of the death of the deceased on 15.05.1996 observing that the provisions under Article 120 of the Limitation Act mentions the period of 90 days to be reckoned from the date of the death and not from the date of knowledge about the death of the defendant.
9. On going through the provisions laid down under Order 22 Rule 4 CPC read with sub Rule (5) (a) & (b) of Rule 4 CPC and amended Rule 10 inserting Rule 10A, the fabric of the provisions for bringing the LRs of a party, who has expired is clearly revealing the legislative intent that 'the knowledge' about the bare facts of date of death of a party is a core element to cast the obligation on the claimant to bring the LRs of the deceased party on record without any delay and latches and it should not be more than 90 days, and the basic question arises is about 'the knowledge' of the death of the party to the other party on whom such obligation has been imposed by the Law.
10. The totality of the provisions under Order 22 CPC reveals that the 'knowledge' about the death of a party is the intrinsic part of the factum of death of a party for taking an action in the event of death of such party to keep alive his claim, if his right to sue survives against the legal representative of the defendant, who has died during the pendency of the suit and if despite the death of the defendant, the RCA No. 2/08/98 Page No. 6 claim survives on the LRs of such deceased party, to keep alive his claim if his right to sue survives against the LRs of the defendant, and in such case the claimant can continue his claim in the suit by seeking leave to bring LRs of such deceased party, on record.
11. The specific provisions of Rule 4 sub-Rule 5 CPC needs its mention here that reads:
(5) Where-
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963, and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963, for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.
12. Also Rule 10 A CPC is worth to mention at this place that reads:
10 A. Duty of pleader to communicate to Court death of a party -
Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, RCA No. 2/08/98 Page No. 7 and, for this purpose the contract between the pleader and the deceased party shall be deemed to subsist.
13. The plain reading of these provisions leaves no room of doubt that knowledge about the death of a party is the basic element to move an action in response to the event of death of a party and if the opposite party is ignorant about the death of a party, the reckoning of period of limitation of 90 days from the date of death of such party shall make these provisions redundant. The rule of 'Harmonious Constructions' of a Statute provides that interpretation of law should not be so technical that reading of one provision makes the other provision of law infructuous or redundant. It means to say that legislative intent of language in the article 120 of the Limitation Act that mandates the reckonings of the period of 90 days from 'the date of the death' for the purpose of bringing of the LRs of such deceased party on record, if read with its word 'the date of death' , then the literal interpretation of such provision of law under Article 120 of the Limitation Act shall make provision of Rule 4 (5) (b) and Rule 10A of Order 22 CPC redundant and nugatory and that clearly cannot be the intentions of the Law, particularly, on the face of the facts that provisions of Rule 4 (5) (b) and Rule 10A of Order 22 CPC were 'inserted' by the Code of Civil Procedure (Amendment) Act, 1976.
14. Thus, the harmonious construction of both the provisions of RCA No. 2/08/98 Page No. 8 Order 22 CPC and of Article 120 of the Limitation Act makes it clear that knowledge about the death of a party is 'sine qua non' for moving the application for bringing LRs of the deceased defendant on records because if the plaintiff is in dark about the death of the defendant then moving of such application from the date of death within the period of 90 days without such knowledge of death is an impossible task and in the present facts and circumstances, the case of the defendant is not that the death of the defendant was publisized to make it a public knowledge about the event of death of such defendant.
15. The provisions of Law are explicitly clear that the facts about the ignorance about the death of the defendant are important and rather the duty has been casted on the pleader of the deceased party to communicate to the Court about the death of the party, so that appropriate action on the part of other party may be expected to be taken within the stipulated period of mandate of the period of the limitation.
16. In this case, from the record there is nothing established on record that the plaintiff was having the knowledge about the death of the defendant prior to the 90 days of the death of the defendant from RCA No. 2/08/98 Page No. 9 the date of moving of application by the plaintiff for bringing the LRs on record to pursue its claim against the LRs of the deceased defendant.
17. In case of Smt. Shanta @ Chanchal Vs. Raja Ram & Others cited as 76 (1998), DLT 261, the Hon'ble High Court in its judgment has opined that the impugned order of Ld. Sub Judge was not sustainable when there was no record to show that the notice of the information of death of the either party shall be given to the plaintiff to take such steps for bringing the LRs of the deceased defendant and the Hon'ble High Court had accordingly set aside such orders finding the same as not sustainable.
18. Similar is the case in hand, where the facts about the death of the defendant were not informed in any manner either by the LRs of the deceased defendant or by its pleader either to the plaintiff or to the Court and at the moment the plaintiff came to know about the death of the defendant, he had taken steps by moving the applications under Order 22 Rule 4 Sub Rule (5) (b) along with an application under Section 5 of the Limitation Act requesting for condoning of delay for the want of ignorance due to death of the defendant.
19. Also the observations made by the Apex Court in case titled RCA No. 2/08/98 Page No. 10 as Urban Improvement Trust, Jodhpur Vs. Gokul Narain cited as AIR 1996 Supreme Court 1819 are relied upon when the Civil Appeal was allowed on setting aside the orders of abatement of the appeal and the applications for bringing LRs of respondent/claimant in acquisition proceedings was allowed and it was opined that the application was being made within one month of the knowledge of death about the deceased party.
20. The observations are reproduced as :
"It would, therefore, be clear that though the legal representatives have been brought on record in the executing Court on May 27, 1995 pending proceedings in this Court, since the Counsel for the appellant did not have had the information, on coming to know of the death after dasti service was taken out, immediately application under Order 22, Rule 4, C.P.C. came to be filed within 30 days of the date of the knowledge. Accordingly, there is no abatement of the appeal."...
..."The State (the opposite party) is not expected to keep watch over the survival of the respondent and lapse of counsel to intimate to the Counsel appearing in this Court cannot be constructed to be knowledge of death. Even if it is assumed that abatement was caused, since application was filed under Order 22, Rule 4, C.P.C., within 30 days from the date of the knowledge there is no delay in making the application to bring the legal representatives on record in this appeal."
21. In result, the orders dt. 21.02.1998 of the Ld. Civil Judge cannot be sustained in the present facts and circumstances, on the basis of discussions on the above law and facts, thereby, the impugned order RCA No. 2/08/98 Page No. 11 dt. 21.02.1998 is set aside. Thus, the orders of dismissal of the suit is also set aside.
22. The case is remanded back to the Trial Court for disposal in accordance with law. No Orders as to costs.
23. The Trial Court record be sent back and the appeal file be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT (Dr. Archana Sinha) TODAY, THE 5 DAY OF JUNE, 2010.
th Addl. District Judge, Central-04, Tis Hazari Courts, Delhi 05.06.2010 RCA No. 2/08/98 Page No. 12