Orissa High Court
Land Acquisition Officer vs Dijabar Panda And Ors. on 23 December, 1986
Equivalent citations: AIR1987ORI198, AIR 1987 ORISSA 198, (1987) 1 ORISSA LR 137
ORDER S.C. Mohapatra, J.
1. During pendency of the appeal, respondent No. 1 having died, the application for substitution has been filed with petitions for setting aside the abatement and condonation of delay. Since the question of substitution would depend upon the delay being condoned and abatement being set aside, the three applications are heard one after the other and are disposed of by this common order.
2. Mr. S. C. Ghosh, the learned counsel for the deceased respondent No. 1 appeared on behalf of the legal representatives on instruction and undertook to file the vakalatnama on or before the 6th Jan., 1987. In view of such undertaking, no notice is required to be sent to the proposed legal representatives any more and the applications are finally heard on merits.
3. On the basis of a notification, the State Government compulsorily acquired the land of the respondents under the Land Acquisition Act. On the demand of the respondents for higher compensation reference under Section 18 of the Land Acquisition Act was made and the learned Subordinate Judge having awarded higher compensation, this appeal has been filed by the Slate Government" challenging the award to the extent of Rs. 15,400/-. The learned Advocate General and the Additional Standing Counsel presented the appeal as Government Pleaders thereinafter referred to as 'the Government Pleader'). On notice, respondent No. 1 appeared along with olher respondents on 28-4-1981 and after hardly five months, he died on 23-9-1981.
4. While the appeal was continuing for about five years, on 6-5-1986, the learned counsel for respondent No. 1 filed a memorandum that respondent No. I died on 10-9-1982, leaving his widow and sons as legal representatives. The appellant was given opportunity to take steps for substitution. The Government Pleader sought for instruction for the appellant on 8-5-1986. No instruction having been received by 1-8-1986, the learned Government Pleader requested for further time and two weeks further time for taking steps for substitution was allowed. The Government Pleader issued reminder for instruction to the appellant that very day and again on 5-8-1986 to receive the names of the legal representatives on 8-8-1986. The applications for substitution, setting aside the abatement and condonation of delay were, however, not filed and eighteen days thereafter, the learned Government Pleader sought for instruction from the appellants in respect of the actual date of death of the respondent No. 1. Two weeks after reminder for the purpose was issued to the appellant on 12-9-1986. receipt of the date of death to be 239-1981, the three applications have been filed on 29-9-1986.
5. Application for substitution of deceased respondent No. 1 is required to be filed by the appellant under Order 22, Rule 3, C.P.C. within ninety days from the date of death as provided under Article 120 of the Limitation Act. Where no such application is made, the appeal abates, so far as the deceased respondent as provided in Order 22, Rule 4(3), C.P.C. automatically. This is not however final where the appellant is ignorant of the death. Order 22, Rule 4(5), C.P.C. enables him to file the application for setting aside the abatement with an application for condonation of delay under Section 5 of the Limitation Act on the ground that he could not take steps for substitution on account of his ignorance. Even if the appellant was not ignorant, Order 22, Rule 9, C.P.C. enables him to apply for an order to set aside the abatement or the dismissal of the appeal on that account if it is proved by him that he was prevented by sufficient cause from continuing the appeal. The application under Rule 9 for setting aside the abatement or dismissal can be filed within sixty days of the date of abatement as provided under Article 121 of the Limitation Act. Where the application is filed beyond sixty days of the date of abatement or dismissal, the delay can be condoned under Section 5 of the Limitation Act. Rule 4(5) and Rule 9 of Order 22, C.P.C. read as follows :
"4. Procedure in case of death of one of several defendants or of sole defendant : --
(1) to (4).....
(5) (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 (36 of 1963), the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 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."
"9, Effect of abatement or dismissal --
(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause for continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the Limitation Act, 1877 (15 of 1877), shall apply to applications under Sub-rule (2)."
Explanation-- Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order."
6. In case the deceased respondent did not appear instead of valid service of notice, Sub-rule (4) of Order 22, Rule 4, C.P.C. authorises the Court to exempt the appellant from substituting the legal representatives of the deceased respondent. Similarly, where the respondent dies after hearing of the appeal, it is provided in Order 22, Rule 6, C.P.C. that the appeals would not abate on account of such death. Where the respondent had appeared in the appeal, duty is cast on the counsel to inform the Court about the death of the respondent and on such information being given the contract between the counsel and the deceased respondent shall be deemed to cease as provided under Order 22, Rule 10-A which reads as follows : --
"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, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist."
In spite of such obligation on the counsel for the deceased respondent, the liability of the appellant to take steps for substitution within the time stipulated under the Limitation Act is not deviated.
7. Where, therefore, the applications are filed beyond the period of limitation, the Court can condone the delay being satisfied that there was sufficient cause for which the appellant was prevented from filing the applications within the period of limitation, Each day of delay is to be explained by the appellant. See AIR 1977 SC 2221, Bikram Das v. Financial Commr.
8. In the application for setting aside the abatement as well as in the petition for condonation of delay the assertion is that the appellant was ignorant of such death till 6-5-1986 on which day the knowledge was from the memorandum of the learned counsel for the respondent No. 1. When Order 22 puts the obligation on the appellant to take steps for substitution, it is his duty to be vigilant about the existence of the party till the appeal is heard. Where, however, the respondent has appeared and died thereafter, the appellant can legitimately expect that the learned counsel for the respondent on whom duty is cast to inform the Court about the death of the respondent would act promptly so that he would be relieved of the contract with the client and therefore may not keep a constant watch on the continued existence of the parties. Therefore, in the peculiar circumstances when the learned counsel intimated in this case about the date of death about five years after, it can be held that there was sufficient cause for the ignorance till 6-5-1986. This could not, however, be sufficient for setting aside the abatement. As stated in the earlier paragraph, delay of each day from 7-5-1986 till 29-9-1986 is required to be explained.
9. For the purpose of condonation of delay, the period can be divided into several phases :
(a) 1st phase - 6-5-1986 to 8-5-1986.
(b) 2nd phase - 9-5-1986 to 1-8-1986. (c) 3rd phase - 2-8-1986 to 5-8-1986.
(d) 4th phase - 6-8-1986 to 8-8-1986.
(e) 5th phase - 9-8-1986 to 26-8-1986. (0 6th phase - 27-8-1986 to 12-9-1986.
(g) 7th phase- 13-9-1986 to date of receipt of the date of death and filing of applications.
10. 1st phase :-- When information of the death of respondent No. 1 was received on 6-5-1986, the Government Pleader could have sought for instruction on the same day or on the next day. No explanation has been given as to why two days time was required to seek for the instruction. The appeal is of the year 1980. In case the appellant does not become successful in the appeal, interest and compensation would have to be paid at the enhanced rate under the amendment to the Land Acquisition Act. Where the public policy is early disposal of a its and where there is also chance for the public exchequer to suffer, the Government Pleader should have taken prompt steps. At least, explanation could have been given why prompt steps could not be taken on 6-5-1986 or on 7-5-1986. The delay 1'or the 1st phase is, thus, on account of laxity of the Government Pleader.
11. 2nd phase : -- No explanation has been offered for delay during this phase. Explanation could have been offered about the date of receipt of the letter from the Government Pleader and the steps taken thereupon. The casual manner in which the Land Acquisition Officer had been dealing with the matter would thus be apparent on the face of it. On applying the principle of non-traverse, it can safely be presumed that in case cogent explanation would have been available, the appellant would not have failed to give it out. Thus, the delay in the second phase is on account of the casual manner in which the matter was dealt with by the Land Acquisition Officer.
12. 3rd phase and 4th phase :-- Order No. 17 in this appeal discloses that further time for two weeks was granted for taking steps for substitution. The Government Pleader was extremely vigilant since on the very day reminder was issued. In view of the urgency, reminder was again issued on 5-8-1986. Although the Government Pleader was vigilant, the Land Acquisition Officer does not seem to be equally vigilant. No explanation has been offered about the action of the Land Acquisition Officer for this period. For the reasons stated in respect of the 2nd phase, lack of care by the Land Acquisition Officer can be inferred in respect of these two phases.
13. 5th phase :- On 8-8-1986, the Government Pleader received the names of the legal representatives. With the date of death supplied by the learned counsel for the deceased respondent No. 1, the applications for substitution, setting aside the abatement and condonation of delay could have been filed by the Government Pleader. Even if there was doubt about the actual date of death, information could have been sought for immediately. There is no explanation for the delay on the part of the Government Pleader to seek for the information on 26-8-1986 only. The Government Pleader who was capable on 1-8-1986 to remind the appellant could have also sought for the information on 8-8-1986 or 9-8-1986. No explanation has been offered for the delay. Thus, the delay for this phase was on account of insincerity of the Government Pleader.
14. 6th and 7th phase :-- No explanation has been given for the delay in these phases. This can be inferred to be on account of the laxity of the Land Acquisition Officer for the reasons given earlier.
15. From the aforesaid discussion, it is clear that the application for setting aside the abatement and substitution were filed late on account of the casualness, laxity and insincerity of the Government Pleader and the Land Acquisition Officer. Although the cause title indicates the Land Acquisition Officer to be the appellant, the appeal is actually by the State Government which has no living mind and so to act through individuals. It is true that separate standards cannot be adopted in matters of condonation of delay by the State Government and others. State Government functions through the functionaries under the rules of business. For the purpose of Land Acquisition and Litigations, Revenue Department and Law Departments are the functionaries. Under the Code of Civil Procedure, Collector of the District and the Government Pleader are the functionaries. Where the State Government relied upon the Collector and the Government Pleader for proper conduct of the litigation as a private individual relies upon his lawyer for conducting the appeal, it cannot be blamed for the lack of proper functioning on the part of the latter. The principle laid down by the Supreme Court in AIR 1981 SC 1401, Lajpat Rai v. State of Punjab would be attracted where it was held that after engaging a lawyer a party may repose trust on him fully and may remain supremely confident that the lawyer would look after his interest. The same principle would be applicable to this case on my finding as above.
16. The extension of time by condoning the delay is a matter of concession or indulgence to the applicant and cannot be claimed by him as a matter of absolute right. On account of running out of the time, a valuable right accrues to the opposite party. Thus, in case, the delay is condoned, the opposite parties would be prejudiced. This prejudice, however, can be mitigated on payment of costs. What would be the cost in proportion to the prejudice would depend upon the facts and circumstances of each case. The conduct of both the parties would have to be weighed while assessing the costs. In this case as I have found, the appellant was ignorant of the death till 6-5-1986. From after 6-5-1986, however, the conduct of the person on whom, the appellant trusted is not such which could not have been avoided. Therefore, each day's delay should normally be compensated @ Rs. 100/-. The grievance of the appellant in this case is to the extent of Rs. 15,400/- only. In case.cost is awarded @ Rs. 100/-per day, the same would be much in excess of the amount of relief that would be available to the appellant in case, the appeal is allowed. Therefore, in my view, a consolidated cost of Rs. 1,500/- (fifteen hundred) would be reasonable. On payment of Rs. l,500/- on or before 15th of Jan. 1987 to Mr. S.C. Ghosh, on his entering appearance on 6-1-1987 as undertaken, the delay shall stand condoned and the cost of abatement being the same as the cost of delay the same would be set aside and substitution allowed.
17. In the result, the Miscellaneous Cases are allowed subject to the aforesaid condition. There shall be no order as to costs.