Delhi High Court
Suresh Chander, Kamlesh, Suhsma And ... vs Mahesh Chand, Rama Gupta And Vanita on 9 August, 2007
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT J.M. Malik, J.
1. Mahesh Chand and his wife Smt. Rama Gupta, respondents filed a Probate petition for seeking grant of probate and letter of administration under Section 272 read with Section 276 of Indian Succession Act before the Trial Court in the year 1991. They moved an application dated 16.02.2001, wherein it was averred that that Smt. Swarna, respondent No. 6 had expired on 12.08.1999 and as the petitioners/respondents were not on visiting terms with respondent No. 6 therefore, they were not aware of the fact that application for impleadment of her legal representatives was to be moved. The appellants in their reply contended that Smt. Swarna was the real sister of the petitioners and they were very much aware of her death and the names of her legal heirs. The trial court recorded the statement of Mahesh Chand respondent No. 1 under order 10 CPC. He stated that Smt. Swarna died on 12.08.1999. He testified that, although, he did not attend the cremation of his sister, yet, he came to know about her death on 13.08.1999 i.e. on the next day of her death. He further stated that she had left behind her five children besides her husband. The application was dismissed as it was barred by Limitation Act, 1963. The learned trial court also observed, "the petitioner, could have applied for setting aside of the abatement on showing sufficient cause for the same and that too could have been done by him within a period of 60 days from date of abatement. The petition, therefore, abates as against respondent No. 6." The review petition filed by the petitioners was also dismissed vide order dated 20.03.2006.
2. Thereafter, the Mahesh Chand and his wife moved applications under Order 22 Rule 9(2) read with Section 151 CPC for setting aside the abatement of petition and under Order 22 Rule 9(3) CPC read with Section 5 of the Limitation Act for condensation of delay in filing of the application for setting aside of abatement of the petition. It was pointed out that the petitioners had informed his previous counsel that his sister Swarna had died but he advised them that they need not to file the application for impleadment of the LRs of the deceased person. Thereafter, new advocate was engaged and the above said application was moved. The trial court placed reliance on authorities reported in Sardar Amarjit Singh Kalra v. Pramod Gupta , Sita Prasad Saxena v. Union , Mithailal Dalsangar Singh v. Annabai Devram Kini and Rafiq and Anr. v. Munshilal and Anr. and accepted the petition moved by Mahesh Chand and another. Aggrieved by that order the present appeal has been preferred.
3. I have heard the counsel for the parties. The principal argument urged by the learned Counsel for the appellants was that the first application moved under Order 22 Rule 4 CPC for bringing heirs of the deceased on record implies that the petitioners wanted to set aside the abatement, if any, that has occurred and bring the heirs on record. An application for bringing heirs can be granted without setting aside an abatement. He opined that any subsequent application moved for the same relief is barred by the principles of res judicata. In this context, he has drawn my attention towards few authorities. In Mithailal Dalsangar Singh v. Annabai Devram Kini(supra) it was held:
8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision 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 representatives 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 any other 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 in such cases is not called for.
9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not 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 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.
4. He also relied upon a case by Gujarat High Court reported in Matuben Sundarji Sajpal v. Ananatbhai Tekchand 1996 AIHC 301. In this case it was also held that whenever an application for setting aside abatement is not filed but instead application is filed for bringing heirs on record, it impliedly states that the applicant wants abatement to be set aside. Court should read prayer as for setting aside abatement.
5. The learned Counsel for the appellants also referred authorities reported in Harbans Lal and Ors. v. Inder Chand and Ors. , Smt. Kamlesh v. Tekchand and Smt. Ram Dulari and Ors. v. Maniram Ram Prasad Tiwari and Ors. .
6. Instead of touching the heart of the problem, the learned Counsel for the appellants just skirted it. The facts of this case are squarely covered by authority of Apex Court reported in Ganesh Prasad Badrinarayan Lahoti (D) by LRs v. Sanjeev Prasad Jamna Prasad Chourasiya and Anr. . The facts of this case are detailed in paras numbers 4 and 5 of the judgment which are reproduced as follows:
4. x x x x x x x x x x x x x x x x x x x x x x They, therefore, immediately contacted the advocate at Jalgaon, sought the information regarding the pending appeal and informed him about the death of Ganesh Prasad. Immediately, therefore, an application, Ext. 22 was filed on 27.07.1999 in Civil Appeal No. 51 of 1995 under Order 22 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") praying for substitution of legal representatives of deceased defendant 1. A copy of the said application was served upon the respondent landlord. The respondent filed a reply to the application contending that the appeal stood abated in view of death of original defendant Ganesh Prasad and failure to bring heirs on record within ninety days. It was also submitted that since no prayer for setting aside abatement had been made by the applicants, the application, Ext. 22 was not maintainable. The learned Extra Joint District Judge, by an order below Ext. 22 on 26.08.1999 rejected the application for substitution of heirs, inter alia on the ground that no separate applications were filed for substitution, setting aside abatement of appeal and condensation of delay.
5. After the rejection of application, Ext. 22 on "technical" ground, the appellants filed three applications: (i) Ext. 29 for setting aside abatement and for substituting them as parties; (ii) Ext. 31 for condensation of delay; and (iii) Ext. 33 for interim relief. The appellate court, however, rejected those applications observing that no sufficient cause had been made out for condensation of delay. It was also observed that earlier application, Ext. 22 was dismissed and hence, the applications filed by the appellants were barred by res judicata.
7. Hon'ble Supreme Court reversed the above said finding by laying down authoritatively in para 10 of judgment. The same is reproduced below:
10. ... But, in our opinion, in the facts and circumstances of the case, when the original defendant had not accepted the decree passed by the trial court and had preferred an appeal before the District Court which was pending and as soon as the appeal was placed for hearing and the advocate had addressed a letter to the appellants, prompt actions were taken by them, the lower appellate court ought to have granted the prayer for substitution. We are also of the view that after dismissal of application, Ext. 22 the appellants had filed three applications, Ext. 29, Ext. 31 and Ext. 33 which ought to have been allowed considering overall and attenuating circumstances of the case. The doctrine of res judicata could not be applied when the court felt that the applications were not maintainable. In our considered view, this is not a case of inaction or negligence on the part of the appellants.
8. In Ram Nath Sao v. Gobardhan Sao and Ors. , it was held,
12. Thus it becomes plain that the expression ``sufficient cause'` within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute ``sufficient cause'` or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the list terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.
9. See also Bhag Mal (alias) Ram Bux and Ors. v. Munshi (Dead) by Lrs. and Ors. JT 2007 (4) SC 14.
10. After engaging an advocate the party may remain supremely confident that the lawyer will look after his interest. It will not be proper that the party should suffer for the inaction, deliberate omission or misdemeanour of his agent. It is well settled that litigant should not suffer for the lapses on the part of his counsel. The court must, of course, see whether in such cases there is any taint of malafides or element of recklessness or ruse, If neither is present, legal advise honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice. A careful reading of Order 22 CPC would support the view that the said provisions were devised to ensure continuation and culmination in an effective adjudication. The order passed by the court below does not suffer from any infirmity. Appeal is without merit and the same is, therefore, dismissed.