Delhi High Court - Orders
Raman Mahindra & Ors vs Adarsh Bala Sud @ Adarsh Kumari & Ors on 25 March, 2021
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1950/2013
RAMAN MAHINDRA & ORS ..... Plaintiffs
Through: Mr. Amit Sethi and Ms. Riddhi Jad,
Advocates for P-2.
versus
ADARSH BALA SUD @ ADARSH KUMARI & ORS
..... Defendants
Through: Mr. Praveen Pahuja and Mr. Daleep
Dhyani, Advocates for D-2.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 25.03.2021 I.A. No. 742/2020 (under Order XXII Rule 4 read with Section 151 CPC, 1908 and Section 5 of Limitation Act, 1963)
1. By way of this application under Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 [hereinafter referred to as 'CPC'] and Section 5 of the Limitation Act, 1963, Plaintiff No. 2 [Rohit Mahindra] seeks substitution of the legal heirs of deceased Defendant No. 1 [Adarsh Bala].
2. Briefly put, the present suit is for declaration, partition, and rendition of accounts. Defendant No. 1 - Dr. Adarsh Bala deceased on 6th October, 2019. The said deceased Defendant is now survived by Mr. Ajit Kumar Sud [husband]; Ms. Anjali Sud [daughter] and Dr. Akash Sud [son/Defendant Signature Not Verified Digitally Signed CS(OS) 1950/2013 Page 1 of 6 By:SAPNA SETHI Signing Date:05.04.2021 16:29 No. 2].
3. Mr. Amit Sethi, learned counsel for Plaintiff No. 2 submits that, Plaintiff No. 2 came to know about the death of the Defendant No. 1 on 7th January, 2020, when an application was filed under Order XXII Rule 10A CPC. He contends that if the limitation is to be computed from the date of knowledge, then there is no delay in filing the present application, however, in case the computation is done from the date of the death of the deceased, then there is a delay of merely six days in filing the present application. This delay was neither intentional nor deliberate as Plaintiff No. 2 was not aware of the fact of death of Defendant No. 1, and the same be condoned.
4. Further, he submits that although, there is no abatement of the suit as against the legal heirs of deceased Defendant No. 1, since the present application has been filed within the period of limitation from the date of knowledge. Nevertheless, in para 6 of the present application, a categorical prayer has been made to the effect that, in case the Court is of the view that the suit against the legal heirs of the deceased Defendant No. 1 has abated on the ground that the legal heirs have not been brought on record within the period prescribed, then in such an event, the abatement be set aside. He submits that besides the Court should also take into consideration the nature of the present suit which is for partition, and the fact that Defendant No. 2, who is one of the legal heirs of the deceased Defendant No. 1, is already a party to the present proceedings.
5. Mr. Praveen Pahuja, learned counsel for the Defendant No. 2 [Akash Signature Not Verified Digitally Signed CS(OS) 1950/2013 Page 2 of 6 By:SAPNA SETHI Signing Date:05.04.2021 16:29 Sud] and for the proposed legal heirs of Defendant No. 1, opposes the application. He argues that Plaintiff No. 2 has not filed an application for abatement under Order XXII Rule 9 CPC, and in absence thereof, the legal heirs cannot be substituted. The suit has already abated and no formal order is necessary, as the abatement would occur automatically, on the expiry of ninety days from the date of the death of deceased party. In addition to the above objection, he submits that Plaintiff No. 2 has not been able to show 'sufficient cause' for seeking condonation of delay in filing the present application. The reasons cited by Plaintiff No. 2 are overreaching and fanciful. The parties are living in the same house/premises. In fact, Plaintiff No. 2 had himself attended the last rites and ceremonies of the deceased Defendant No. 1 and offered condolences to the family members and therefore, he was perceptibly aware of the death of the deceased. In support of his submission, he relied on the judgment of the Supreme Court in Union of India v. Ram Charan (Deceased) Through His Legal Representatives 1 and highlighted paragraph nos. 8-13 contained therein.
6. The Court has heard the counsel for the parties at a considerable length. In the instant case, even though there is no separate application filed under Order XXII Rule 9 CPC, however, it is noticed that in the application, a specific prayer to that effect has been made. Plaintiff No. 2 has prayed that there is no abatement of the suit against the deceased Defendant No. 1, however, if the Court were to construe as such, then the abatement be set aside. In the opinion of the Court, merely on account of failure on the part of Plaintiff No. 2 to specifically seek a relief in the application for abatement 1 AIR 1964 SC 215.
Signature Not Verified Digitally Signed CS(OS) 1950/2013 Page 3 of 6 By:SAPNA SETHI Signing Date:05.04.2021 16:29cannot be considered fatal in nature. Plaintiff No. 2 proceeded on the basis that the date of knowledge is the starting point of limitation and therefore, did not make such a prayer. Nevertheless, in the application, Plaintiff No. 2 has specifically averred that the Court may set aside the abatement. It is the substance of the application which needs to be appreciated rather than form. The relief of setting aside of abatement is implicit in the relief of substitution sought by Plaintiff No. 2. Therefore, in the opinion of the Court, the objection of the Defendant No. 2 on this ground is devoid of merit.
7. Now turning to the objection regarding 'sufficient cause' not having been disclosed by the Applicant/ Plaintiff No. 2. On this aspect, it is pertinent to note that, in case limitation is calculated from the date of death, then there is a short delay of only six days in filing the application. On this aspect, Mr. Sethi has urged that there was no knowledge of the death of the deceased Defendant No. 1, until Plaintiff No. 2 was served with a copy of the application under Order XXII Rule 10A CPC. He has further stressed that although Plaintiff No. 2 was living in the common premises, however, he was not on talking terms with the deceased Defendant and therefore, the assertion that Plaintiff No. 2 attended the funeral is absolutely false. The mother of Plaintiff No. 2 is also not residing in the same premises and he was genuinely not aware of the death of the deceased Defendant No. 1. While the contention of Plaintiff No. 2 not being aware of the death of the deceased Defendant No. 1, is certainly plausible, although hard to accept, having regard to the fact that parties were living in the same premises. Nonetheless, considering the fact that there is only a very short delay of just six days, in the opinion of the Court, the application deserves to be allowed.
Signature Not Verified Digitally Signed CS(OS) 1950/2013 Page 4 of 6 By:SAPNA SETHI Signing Date:05.04.2021 16:298. In terms of Section 5 of the Limitation Act, an application can be accepted even after the limitation period for the same is over, if the applicant has a sufficient cause for not being able to file the same within the period prescribed. The term 'sufficient cause' has not been defined anywhere in the Act, however, in deserving cases, the Court have construed it liberally in order to meet the ends of justice. The Supreme Court in Collector, Land Acquisition, Anantnag And Ors. Vs. MST Katiji And Ors. held that "the expression sufficient cause employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice."2. Further in Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRs, the Supreme Court observed that "The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case." 3.
9. Having regard to the facts noted above, the Court cannot presume that the delay in filing the application is deliberate or dilatory tactics are employed or there is negligence on the part of the Plaintiff No. 2. The cause of substantial justice would be defeated, if the case is not decided on merits and the application is dismissed solely on the ground of delay. The facts and circumstances of the present case compels the Court to take a lenient view in the matter. Additionally, the Court has also taken into consideration that the 2 (1987) 2 SCC 107 [para 3].
3(2008) 8 SCC 321 [para 13].
Signature Not Verified Digitally Signed CS(OS) 1950/2013 Page 5 of 6 By:SAPNA SETHI Signing Date:05.04.2021 16:29suit is for partition and therefore the rights, if any, of the parties are required to be determined in the present suit which would also include the right of the legal representatives of the deceased Defendant No. 1. For this, the presence of the legal representative of the deceased Defendant would be necessary. Moreover, one of the legal representatives of the deceased Defendant is already a party to the present suit [Defendant No. 2]. The decision of the Apex Court in Ram Charan (Supra) cited by the Defendant No. 2 is not applicable to the facts of the present case. In the said case, party deceased on 21st July, 1957 and the application to implead the legal heirs was filed on 17th March, 1958 and thus, there was a gross delay of 240 days. Therefore, the said judgment is distinguishable on facts.
10. In view of the above, the present application is allowed, the abatement qua the deceased Defendant No. 1 is set aside and accordingly, the legal representatives of the deceased Defendant No. 1 are taken on record. The amended memo of parties which is annexed to the present application is also taken on record.
11. List the matter before the Joint Registrar for recording of evidence on 7th May, 2021.
SANJEEV NARULA, J MARCH 25, 2021/nk Signature Not Verified Digitally Signed CS(OS) 1950/2013 Page 6 of 6 By:SAPNA SETHI Signing Date:05.04.2021 16:29