Himachal Pradesh High Court
Mrs. Kiran Sarin vs Mrs. Meera Varmani & Others on 29 August, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
F.A.O. No. 559 of 2016
Date of decision: 29.08.2019
.
Mrs. Kiran Sarin ...Appellant
Versus
Mrs. Meera Varmani & Others ...Respondents
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1 Yes
For the appellant
For respondents
r :
: to Mr. Neeraj Maniktala, Advocate.
Mr. Ashok Sood, Sr. Advocate, with
Mr. Abhishek Sood, Advocate, for
respondents No.2 to 14, 15 (a),
15(b) and 18.
Respondents No.16 and 17 are
stated to have died.
Mr. Pranay Pratap Singh, Advocate,
for proposed legal representative
No.16 (a).
Ajay Mohan Goel, Judge (Oral)
This appeal is directed against order dated 10.09.2016, passed by the Court of learned Additional District Judge (III), Kangra at Dharamshala in CMA No.69-P/2016 in C.A. No.83-P/xiii/2013/2008, titled Mrs Kiran Sarin Versus Mrs. Meera Varmani and others, vide which an application filed by the present appellant under Order 22, Rule 4, 9, 10A read with Section 151 of the Code of Civil Procedure, for bringing on record the legal representatives of Smt. Bimla Devi (respondent No.17 1 Whether the reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 2 in appeal), who died during the pendency of the appeal, was dismissed.
2. Brief facts necessary for the adjudication of the present appeal are as under:-
.
Appellant filed a suit for declaration and permanent prohibitory injunction against 18 defendants including Smt. Bimla Devi, who was impleaded as defendant No.17. The suit was dismissed with costs by the Court of learned Civil Judge (Senior Division), Palampur, District Kangra, H.P., vide judgment and decree dated 01.12.2007.
3. Feeling aggrieved, appellant/ plaintiff preferred an appeal under Section 96 of the Code of Civil Procedure.
4. During the pendency of the said appeal, defendant Bimla Devi, who was respondent No.17 in the appeal, died on 04.09.2014.
5. Appellant/ applicant filed an application dated 14.07.2015 under Order 22, Rule 4, 9, 10A read with Section 151 of the Code of Civil Procedure, to bring on record the legal representatives of deceased respondent No.17 Bimla Devi. Averments made in the application are reproduced hereinunder:-
" Sir, The applicant/ appellant submits as under:-
1. That the above titled appeal is pending before this Hon'ble Court and the same is fixed for 14.7.2015.
2. That it was revealed on the last date of hearing that Smt. Bimla Devi, respondent No.17 had expired and on enquiries, it transpired that Smt. Bimla Devi, respondent No.17 had expired on 04.09.2014 leaving behind the following legal representatives:-::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 3
(a) Smt. Sukesh.
(b) Km. Samriti, daughters.
(c) Shri Rakesh Kumar son of Bimla Devi, resident of House No.3416, Sector 23-D, Chandigarh-UT. Copy of .
death certificate is attached.
3. That the respondent No.17 was being represented through a counsel Shri Gaurav Pathania in the case and the said counsel never informed about the death of respondent No.17 and as such, the contract between the pleader and the deceased (Bimla Devi) shall be deemed to subsist.
4. That there are good and sufficient grounds to set aside the abatement, if any. There are no other legal representatives of the deceased except those mentioned in para No.2 above.
An affidavit duly attested is attached.
It is, therefore, prayed that the application may kindly be allowed in the interest of justice and fair play".
6. This application has been dismissed vide impugned order by the learned Appellate Court. It held that there was nothing on record to demonstrate that counsel representing deceased respondent (wrongly referred to as respondent No.15 in the impugned order) on any date of hearing had informed learned counsel for the appellant about the death of the said respondent. On 16.07.2015, learned counsel for the appellant had informed that respondent No.17 had expired, but, there was nothing on record as to why the appellant was not previously having knowledge of death of deceased respondent No.17. It held that sufficient grounds were not mentioned in the application to set aside abatement.
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7. Learned Appellate Court relying upon the judgment of Hon'ble Supreme Court in P. Jesaya (Dead) by Lrs.- Vs. Sub Collector and another reported in (2004) 13 SCC 431 Page 8, and Mithailal Dalsangar Singh and others-Vs. Annabadi .
Devraran Kini and others reported in (2330) 10 SCC 691, (Para-11) and Jodhpur-Vs- Gokul Narain and another, reported in AIR 1996 SC 1819 (Page 14), held that it was settled law that sufficient ground of delay has to be specifically pleaded and delay of each day has to be explained. Learned Appellate Court dismissed the application and ordered the appeal to have abated by holding that in the absence of specific mention of reason or cause of delay in filing the application, there was no occasion to consider the cause of delay for the Court.
8. Feeling aggrieved, appellant/ plaintiff has filed the present appeal.
9. Learned Counsel for the appellant has vehemently argued that impugned order is not sustainable in the eyes of law as while dismissing the application filed by the appellant, learned Appellate Court erred in not correctly appreciating the provisions of Order 22, Rule 4 of the Code of Civil Procedure as also the intent and scope of Order 22, Rule 10A of the Code. He argued that the appellant was not supposed to keep a track of all the respondents and duty was cast upon the counsel representing the respondents that in the eventuality of death of either of the respondent, they ought to have had informed the learned Court ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 5 about the demise of the respondent in terms of Order 22, Rule 10A of the Code of Civil Procedure.
10. As per learned counsel for the appellant, only after information of death of respondent is given by his pleader to the .
Court, the other side has to take steps to bring on record legal representatives of deceased party. According to him, as no such intimation was given to the Court or the appellant by the pleader representing respondent No.17, about the death of said respondent, the application which was filed by appellant to bring on record legal representatives of deceased respondent No.17, was deemed to have been filed within limitation, nor there was any abatement in terms of the provisions of Order 22, Rule 4 of the Code of Civil Procedure. He has relied upon the following judgments of Hon'ble Supreme Court to further his case i.e. P. Jesaya (Dead) By LRs Versus Sub-Collector and Another (2004) 13 SCC 431; Urban Improvement Trust, Jodhpur Versus Gokul Narain (Dead) By LRs and Another (1996) 4 SCC 178; Perumon Bhagvathy Devaswom, Perinadu Village Versus Bhargavi Amma (Dead) by LRs and Others (2008) 8 SCC 321. He also relied upon the judgment of the Hon'ble Coordinate Bench of this Court in Civil Revision No.115/ 2009 titled as Smt. Shanta Kapila Versus Smt. Sharda and another, decided on 12.08.2011. On the strength of the said judgments, he has argued that the impugned order is perverse and not sustainable in the eyes of law and therefore, the same be set aside and the application filed by the ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 6 appellant before the learned Appellate Court be allowed and the appeal be ordered to be thereafter, heard on merit.
11. On the other hand, learned Senior Counsel appearing for the respondents, has argued that there was no perversity in .
the order passed by the learned Court below, as it had rightly dismissed the application filed by the appellant under Order 22, Rule 4, 9, 10A read with Section 151 of the Code of Civil Procedure, because sufficient reasons were not mentioned in the application as to why application to bring on record the legal representatives of deceased respondent No.17 was not filed by the appellant either within the period of limitation or within some reasonable time, thereafter. Learned Senior Counsel for the respondents also argued that the averments made in the application were on the border of falsehood as what was contained in para 2 of the application was not relatable to the record of the case. As per learned Senior Counsel, record of the case did not disclose that on any date, pleader of respondent No.17 had mentioned before the Court about the death of respondent No.17 and in fact the application which was filed by appellant to bring on record legal representatives of deceased respondent No.17, was based upon her personal knowledge. In these circumstances, it was incumbent upon the applicant to have disclosed in the application itself as to from what source it acquired the knowledge of the death of respondent No.17 and delay in filing the application ought to have been sufficiently mentioned and explained in the application itself. He has further ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 7 argued that as admittedly, application to bring on record the legal representatives of deceased respondent No.17 was not filed within the period of limitation and the appeal automatically abated in terms of provisions of Order 22, Rule 4 of the Code of .
Civil Procedure, it was incumbent upon the applicant to also have had filed an application under Section 5 of the Limitation Act, praying for condonation of delay and in the absence of there being any such application, simplicitor application filed under Order 22, Rule 4, 9, 10A read with Section 151 of the Code of Civil Procedure, was not maintainable. On these grounds, he has argued that as there was no infirmity in the impugned order, appeal being devoid of merit, be dismissed.
12. I have heard learned counsel for the parties and have also gone through the impugned order as well as relevant documents appended with the present appeal.
13. Order 22, Rule 4 of the Code of Civil Procedure inter alia, provides that where one or two or more defendants dies and the right to sue does not survive against the surviving defendants or defendant alone, or sole defendant or sole surviving defendant died and right to sue survives, the Court on an application made in that behalf shall call legal representatives of deceased defendant be made a party and shall proceed with the suit.
14. Sub-clause (5) of Order 22, Rule 4 of the Code of Civil Procedure Code further provides that where plaintiff was ignorant about the death of defendant and could not for that reason make ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 8 an application for the substitution of legal representatives of defendant under the rule within the period specified in Limitation Act, 1963 and the suit has in-consequences abated and the plaintiff applies after expiry of the period specified therefor in the .
Limitation Act for setting aside the abatement and also for admission of that application under Section 5 of the Act on the ground that he had by reason for such ignorance sufficient cause for not making application within the period specified in the said Act, the Court shall in considering the application under the said Section 5 of the Act and due regard to the fact of such ignorance.
15. At this stage, I will also refer to the provisions of Order 22, Rule 10A of the Code of Civil Procedure. Said provision provides that whereever 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. Thus, one thing which is apparent from the bare reading of the provisions of Order 22, Rule 10A of the Code of Civil Procedure is that, but obvious, onus is cast upon the pleader of the party which has died during the pendency of the lis, to inform about the said fact to the Court, provided the pleader has the knowledge of the said fact. Keeping this in mind, I will now proceed with the matter further.
16. In P. Jesaya (Dead) by Lrs.- Vs. Sub Collector and another reported in (2004) 13 SCC 431 Page 8, Hon'ble ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 9 Supreme Court was dealing with situation where a respondent in appeal before the High Court died during the pendency of the appeal and it was contended that as heirs of the deceased respondent were not brought on record before the High Court, .
therefore, the appeal before the High Court had abated and the judgment delivered by the High Court was non-est and could not be enforced. In this background, Hon'ble Supreme Court held that though the argument was attractive, but one has to keep in mind the provisions of Order 22, Rule 10A of the Code of Civil Procedure, wherein it was obligatory on the pleader of the deceased to inform the Court and the other side about the factum of the death of the party. Hon'ble Supreme Court further held that no intimation was given to the Court or to the other side that the respondent had died and on the contrary, counsel continued to appear on behalf of the deceased person and also argued the matter. On the said factual matrix, Hon'ble Supreme Court observed that it was clear that attempt was to see whether a favourable order could be obtained and it was clear that intention was that it ordered against them, then thereafter, this would be made a ground for having that order set aside. In this factual background, Hon'ble Supreme Court further held that attempt was not just to take the other side, but also the Court for a right and these sort of tactics could not be permitted to prevail.
17. In Urban Improvement Trust, Jodhpur Versus Gokul Narain (Dead) By LRs and Another (1996) 4 SCC 178, Hon'ble Supreme Court in para 4 thereof held that under ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 10 Order 22, Rule 10A of the Code of Civil Procedure, whenever, a pleader appearing for a party to the suit comes to know of the death of the party, he has to inform about it and the Court thereupon has to give notice of such death to the other party and .
for this purpose the contract between the pleader and the deceased party is deemed to subsist. Hon'ble Supreme Court further held the limitation for filing application has to be so construed from the said date of knowledge.
18. In Perumon Bhagvathy Devaswom, Perinadu Village Versus Bhargavi Amma (Dead) by LRs and Others (2008) 8 SCC 321, Hon'ble Supreme Court in para 13 of the said judgment, has laid down the principles applicable in considering applications for setting aside abatement, which are as under:-
" (i) 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. The words `sufficient cause' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 11
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For .
example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.
(v) Want of `diligence' or `inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.
19. In para 17 of the same judgment, Hon'ble Supreme Court further held taking into consideration the provisions of Order 22, Rule 10A of the Code of Civil Procedure when the death is reported and recorded in the order sheet/proceedings and the appellant is notified, the appellant has knowledge of the death and there is duty on the part of the appellant to take steps to bring the legal representative of the deceased on record, in place of the deceased. The need for diligence commences from the date of such knowledge. If the appellant pleads ignorance even ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 12 after the court notifies him about the death of the respondent that may be an indication of negligence or want of diligence.
20. In Smt. Shanta Kapila Versus Smt. Sharda and another (supra), a Coordinate Bench of this Court after relying .
upon the judgments of Hon'ble Supreme Court, reiterated that duty is cast under Order 22, Rule 10A of the Code that whenever an Advocate appearing for the party to the suit comes to the knowledge of the death of the party, he has to inform it to the Court and thereupon give notice of such death to the other party and for this purpose the contract between the counsel and the deceased party shall be deemed to subsist.
21. Now, one thing which is apparent and evident from the judgments which have been quoted hereinabove is that Hon'ble Supreme Court as also the Coordinate Bench of this Court were dealing with the moot question as to the date which has to be construed as the date of knowledge for the purposes of limitation. Hon'ble Supreme Court held that because onus is upon the counsel who was representing the party, to make a disclosure under Order 22, Rule 10A of the Code about the factum of the death of the party in case the pleader is aware of the said fact then but obvious, limitation will start running from the date when said fact is brought into the notice of the opposite party by the counsel representing the deceased party.
22. In the present case, factually this is not the situation. Though in the application, which was filed under Order 22, Rule 4, 9, 10A read with Section 151 of the Code of Civil Procedure, for ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 13 bringing on record legal representatives of respondent No.17 Bimla Devi, it was mentioned that it was revealed that on the last date of hearing that Smt. Bimla Devi had expired, however, a perusal of the previous orders passed by the said Court which .
are on record, demonstrate that no such information was either disclosed by the counsel earlier representing deceased respondent No.17 nor any such information was was recorded in the order sheet.
23. The application was filed in the Court on 16.07.2015 and the last two orders previous to order dated 16.07.2015, passed by the learned Appellate Court read as under:-
"13.07.2015.
Present:- Sh. Ravi Kumar, Adv. Vice counsel of Sh.
Rahul Gupta.
Sh. Gaurav Pathania, Adv. Ld. vice counsel of Sh. J.C. Katoch, Adv. for respondents No.2 to 14, 16 to 18 and LRs of deceased respondent No.15. Be brought on record on application U/O 22, Rule 4 CPC.
As prayed for. Be listed for arguments on 14.07.2015.
ADJ-III Kangra at Dharamshala.
14.7.2015:- Present:Ms. Anjali Sharma, Adv. Vice counsel Sh. Rahul Gupta, Adv. for the Appellant.
Ms. Himali Thapa Adv. ld. vice counsel Shri J.C. Katoch, Adv. for respondents No.2 to 14, 16 to 18 and LRs of deceased respondent No.15.
None for Respondent No.1.
As per notice issued by this Court for the service of respondent No.1 Mrs. Meera Varmani through her GPA Shri Gaggan Varmani received back ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 14 unserved with the report that GPA Gaggan Varmani has shifted at Chandigarh and the whereabout/ address is not kown. In view of the report it shows that respondent No.1 not served despite service of summons and the present case pertains to the year 2008 being old case, therefore, respondent No.1 is hereby proceeded against .
ex-parte. Be listed for further orders on 16.7.2015.
Addl. District Judge (III), Kangra at Dharamshala".
24. Thus, a comparison between the averments made in the application so filed by the appellant and the previous order sheets of the Court demonstrates that the averments made in the application were incorrect. I again reiterate that in my considered view, the onus to make a disclosure as is contemplated under Order 22, Rule 10A of the Code of Civil Procedure upon the pleader, but obvious, is only when the pleader is aware of the said fact. One cannot presume that in each and every case, learned counsel who is representing a party, shall be having the knowledge of the fact as to whether the party is alive or not.
25. As in this case, pleader earlier representing respondent No.17 did not disclose the factum of the death of the said respondent before the learned Appellate Court, therefore, but natural, the application to bring on record legal representatives of deceased respondent No.17 was filed by the appellant/ plaintiff on the basis of her personal knowledge.
26. In this background, when one again peruses the averments made in the application, a perusal thereof demonstrates that the application was cryptic and vague and ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 15 there is no mention made in the application as to when the applicant came to know about the death of deceased respondent No.17, from what source, and why previously said fact was not in her knowledge. This I say for the reason because as already .
mentioned hereinabove, the averments made by applicant that she gained knowledge about the death of respondent No.17 pursuant to the disclosure made by counsel representing respondent No.17, have been proved to be incorrect and wrong. Rather than approaching the Court with clean hands by way of the application under Order 22, Rule 4 of the Code of Civil Procedure, alongwith an application under Section 5 of the Limitation Act for bringing on record legal representatives of deceased respondent No.17 by way of condonation of delay in filing the application, appellant approached the Court by filing an application containing incorrect and wrong averments.
27. In fact, it was incumbent upon the applicant to have had complied with the provisions of sub-clause (5) of Order 22, Rule 4 of the Code of Civil Procedure. It is not in dispute that ordinarily, an application to bring on record legal representatives of deceased defendant/ respondent has to be filed within 90 days of the death. If no steps are taken within 90 days then abatement is automatic. Thereafter, onus is upon the plaintiff/applicant to move an appropriate application before the Court not only praying for the substitution of the deceased party with his or her legal representatives, but also for setting aside ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 16 abatement and condonation of delay in filing the application. This the appellant failed to do.
28. I have quoted in detail the provisions of Clause (5) of Order 22, Rule 4 of the Code of Civil Procedure, as per which .
whenever a party applies to bring on record legal representatives of deceased deceased/respondent after the expiry of limitation and after the proceedings stand abated, then an application has to be filed under Section 5 of the Limitation Act, praying for condonation of delay by mentioning cogent reasons therein as to why there was delay in filing the application and the Court can in such circumstances, consider the application under Section 5 of the Limitation Act having due regard to the fact of such ignorance, if proved. In the present case, admittedly no application under Section 5 of the Limitation Act was filed for condonation of delay in filing the application under Order 22, Rule 4, 9, 10A read with Section 151 of the Code of Civil Procedure. As I have already mentioned hereinabove, contention of the appellant/ applicant that it was on the previous date as from the date when the application was filed that the knowledge of the death of respondent No.17 was gained on account of a disclosure made by the counsel representing respondent No.17 is incorrect and wrong.
29. In these circumstances, this Court does not finds any perversity with the order which stands impugned by way of this appeal. Further, as this court does not finds any merit in this appeal, the same is accordingly dismissed. Pending ::: Downloaded on - 29/09/2019 02:51:24 :::HCHP 17 miscellaneous application(s), if any, stand disposed of. Interim order, if any, also stands vacated.
(Ajay Mohan Goel), .
Judge
August 29, 2019
(Rishi)
r to
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