Punjab-Haryana High Court
Subhash Chander Kumar vs Prabhu Dayal And Ors. on 23 December, 1993
Equivalent citations: (1994)106PLR484
JUDGMENT G.R, Majithia, J.
1. This revision petition is directed against the order of the Senior Subordinate Judge, Hisar, dated June 8, 1991, refusing the application of the petitioner to bring him on record as legal Representative of the deceased plaintiff
2. The facts :-
Smt. Ashok Sardana wife of Sh. Tirlok Nath Sardana filed a suit for possession of the disputed property, which is registered as Civil Suit No. 352 of 1983. During the pendency of the suit, the plaintiff died on November 30, 1987. She bequeathed the disputed property to the petitioner through a registered Will dated June 22, 1986. The suit was prosecuted by an attorney.
An application was filed in the trial Court to bring on record the legal representatives of the deceased plaintiff. The defendant-respondents contested the application, inter alia, on the ground that it was filed beyond limitation and that cause of action did not survive to the legal representative of the deceased.
3. On the plea lings of the parties, the following issues were framed by the trial Judge:-
1. Whether the application impleading the L.Rs is within time? OPA
2. Whether Subhash Chander is the LR of the deceased? OPA '
3. Whether the applicant Biru Ram is the Mukhtiar-a-am of the said Subash Chander? OPA
4. Whether the cause of action survives after the death of Plaintiff? OPA
5. Whether the suit has been abated? OPR
6. Relief.
4. Under issue No. 1, it was held that the limitation to bring on record the legal representatives of the deceased was three years from the date of her death: issue No. 2, 4 and 5 were disposed of together and these were disposed of with the observation that the attorney had appeared in the witness-box to depose in favour of the proposed legal representatives of the deceased and as such no case was made out in their favour; and under issue No. 3 it was held that the application was filed by the authorised General Attorney of the applicant.
5. The view taken by the learned trial Judge that the limitation to bring on record the legal representatives of the deceased plaintiff was three years from the dale of death is incorrect. In Mahant Niranjan Dass v. Shiromani Gurudawara Prabandhak Committee, Amritsar, (1992-2) 102 P.L.R. 497 (SC) the apex Court held that the application to bring on record the legal representatives of a deceased plaintiff or appellant or of a deceased defendant or respondent is governed by the provisions of Article 120 of the Limitation Act, 1963, which clearly provides a period of 90 days within which such an application has to be filed. The apex Court held thus:-
"Learned counsel for the applicant brought to. our notice and placed reliance on a decision to the Punjab and Haryana High Court in Smt. Har Devi v. Joinder Singh (1988-2) 94 P.L.R. 183 and contended that the limitation in this case should be considered as three years as provided under Article 137 of the Limitation Act, 1963.
We see no force in the above contention of the learned counsel for the applicant. Article 120 of the Limitation Act, 1963 clearly provides a period of 90 days for having the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent to be made a party. In our view, the language of Article 120 is clear and according to this the application in the present case ought to have been filed within 90 days of the death of the sole appellant Niranjan Dass. The Punjab and Haryana High Court in the above referred case took a wrong view that the provision of Article 120 is inapplicable and that the provision of limitation would be three years and not 90 days. In the case before us Mahant Niranjan Dass was the sole appellant and he had died on 21-3-88 and the applicant claiming himself to a Chela of Mahant Niranjan Dass ought have filed the application for bringing him on record within 90 days of the death of the appellant-Niranjan Dass. Even if for arguments sake the period is calculated from the date of knowledge of the applicant with regard to the present appeal pending in the Supreme Court, that date comes to 29.8.90, the date of the plaint filed by Gur Preet Dass. The application filed on 24-1-1991 is even beyond 90 days of the date of knowledge of the present litigation. The case of the applicant that he came to know about this appeal only in January, 1991 when he received a letter from the Advocate on record addressed to Mahant Niranjan Dass, is totally false. Learned counsel for the applicant was thus unable to satisfy the delay in filing the application beyond 90 days."
The judgment rendered in Sewa Singh v. Chander Singh, 1990 (2) L.J.R. 129, does not lay down the correct rule of law in the light of the authoritative pronouncement by the apex Court in Mahant Niranjan Dass case (supra).
6. The learned trial Judge did not understand the scope of enquiry which he was called upon to make in an application to bring on record the legal representatives of the deceased plaintiff. The applicant was claiming to be the legal representative of the deceased on the basis of a registered Will dated June 22, 1986. The Will was duly proved by the husband of the deceased, who appeared in the witness-box as A.W.I. He stated that his wife had executed the Will in his presence and he attested the same in her presence; that she presented the same to the Sub Registrar for registration and the latter attested the same after the testator acknowledged its due execution. The registration of a document is strong circumstance that proper parties had appeared before the registering officer and the latter had attested the same after ascertaining their identities. In this behalf, reliance can be placed on a Division Bench judgment of the Lahore High Court in Piara v. Fattu, A.I.R. 1929 Lahore 711, where it was held thus:-
"The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty it is to attend to the parties during the registration and see that the proper persons are present, are competent to Act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Therefore, the certificate endorsed on the sale deed by the Registering Officer under Section 60 (of the Registration Act) is a relevant piece of evidence for proving its execution."
7. There was nothing on the record to show that the Will was not genuine or it. suffered from any infirmity. The applicant prima facie was entitled to be brought on record as the legal representative of the deceased plaintiff.
8. The trial Judge has disposed of the application in a most unsatisfactory manner. The petitioner has stated in the application that he came to know of the death of the deceased on March 1, 1988 and that the lawyers were on strike and for this reason, the application was not moved within the prescribed time. The trial Judge could take judicial notice of the fact whether the lawyers were on strike or not. Intimation is also sent by the District and Sessions Judge to this Court if the members of the Bar in the Sessions Division have gone on strike. The record is available in the office of the District & Sessions Judge. If the trial Judge had made a little effort to ascertain this fact, his decision would probably have been to the contrary.
9. In fairness to the learned counsel for the respondents, his submissions may be noted:-
(i) The application to, bring on record legal representatives of the deceased plaintiff is not supported by an affidavit;
(ii) The Judgment of this Court rendered in Smt. Har Devi v. Joginder Singh , (1988-2) 94 P.L.R. 183 does not lay down correct rule of law.
10. The second submission of the learned counsel for the respondent is correct. The rule of law laid down by this Court in Smt. Har Devi's case (supra) has been disapproved by the apex Court in Mahant Niranjan Dass's case (supra). The limitation to bring on record legal representatives of a sole plaintiff/appellant or of a defendant/respondent is governed by the provisions in Article 120 and not. Article 137 of the Limitation Act, 1963 (as held by this Court in Smt. Har Devi's (case)). I do not think it necessary to refer the case to a larger Bench as the judgment in Smt. Har Devi's case does not lay down the correct rule of law in view of the Supreme Court's judgment in Mahant Niranjan Dass's case, and the same will be deemed to have been overruled.
11. As regards the first submission of the learned counsel for the respondents, it is correct that the High Court Rules and Orders provide that the averments made in the application to bring on record the legal representative of the deceased have to be supported by an affidavit. The rule is directory and not mandatory. The application will not be invalid merely because the averments made therein are not supported by an affidavit of the applicant. The applicant-petitioner has sought to be brought on record as legal representative of the deceased on the basis of a registered will. The due execution of the will had been proved by the husband of the deceased who appeared as A.W.1 and it is a registered will.
12. The trial fudge has not considered whether sufficient cause had been shown by the applicant for condoning the delay in belated filing of the application for bringing him on record as the legal representative of the deceased plaintiff. The word "sufficient cause" occurring in Section 5 of the Limitation Act has to be liberally construed so as to advance the substantial justice where no serious negligence or inaction or want of bona fide is impugned to the claimant. Interest of justice requires that the applicant should be permitted to lead proper evidence in support of his pleas in the application for bringing on record the legal representative of a deceased plaintiff and the respondents be allowed to lead evidence in rebuttal thereof and thereafter a final decision should be rendered in accordance with law and more particularly in the light of the observations made above.
13. For the reasons state above, the revision petition succeeds and the case is remitted to the trial Judge for deciding the application for bringing on record the legal representatives of the deceased plaintiff afresh. The parties through their counsel are directed to appear before him on January 27, 1994.