Punjab-Haryana High Court
Suresh Raj And Ors. vs Smt. Ganga Devi And Ors. on 30 November, 1990
Equivalent citations: (1991)99PLR447
JUDGMENT M.S. Liberhan, J.
1. Ganga Devi brought a suit for declaration and joint possession of her 6/20th share in the land in depute against Bam Charder and Kisl-on Lal who are real brothers, Kishori Lal was proceeded against ex-parte on 13-9 79: Ram Chander alongwith other respondents were proceeded against ex-parte on 22-9-79 and that suit was decreed on the same day. It may be noticed that Ram Chander and Kisbori Lai were represented by the same counsel Kishori Lai died on 9-9-1979.
2. The petitioners on 3-19-1980 applied for setting aside the ex-parte decree, inter-alia, claiming that they are the legal heirs of deceased Kishori Lal in view of the Will dated 25-10-1978 executed in their favour and they have acquired knowledge with respect to the ex-parte decree in favour of Ganga Devi on 3-2-1980 through Amolak Ram. The decree was stated to be a nullity having been passed against a dead person. It was claimed that the decree has been passed before the expiry of limitation of 90 days for bringing the legal heirs on record. The date of death was brought to the notice of the Court as well as to the plaintiff.
3. Ganga Devi refuted the averments and took up the plea that the application is beyond limitation. The petitioners were in know of the ex parte decree
4. The Courts below took the view and rightly so that since natural legal heir of Kishri Lal, who admittedly died issueless was Ram Chander who wan also a parly to the suit, no fresh application was required for brining the legal heirs of Kishori Lal deceased on record. Consequently, passing of the decree before the expiry of 90 days is of no consequence. In the peculiar situation and the facts of ibis case to the effect that when legal heir of the deceased was already on record, it was not incumbent on the trial Court to wait for the expiry of 90 days for bringing the legal heirs on record.
5. The only contention raised by the learned counsel for the petitioner is that the application will be governed by Article 137 of the Limitation Act, 1963 and not by Article 120 of. the said Act. He relied upon P.N. Films Ltd. and Anr. v. Overseas Films Corporation Ltd., A. I. R. 1958 Bom. 10. to canvass that interpretation of the Limitation Act must always be construed strictly against the party who sets up the plea of limitation. An attempt should be made to have a benevolent construction, a construction favourable to the party whose valuable right is being taken away, must always be given. There is be question involved with respect to the interpretation of the limitation Act. There cannot be any dispute that the legal heirs are to be brought on record within 90 days from the date of death and Article 120 of the Limitation Act applies Learned counsel for the petitioner has not bean able to seriously dispute the applicability of Article 120.
6. Learned counsel for the petitioner further relied upon Chandradeo Pandey and Ors. v. Sukhdeo Rai, A. I. R. 1972 All. 504. wherein it was observed that for bringing the legal heirs on record in a revision petition the-limitation is of three years. The question determined in the said judgment is not even remotely involved in the present case. He further placed reliance upon M/s International Steel House, Madras and Anr. v. Vardhman Spinning & General Mills Ltd., Ludhiana and Ors., (1989-2) 96 P. L. R. 217. I have noticed the judgment because it has been cited. Otherwise I do not find any relevancy of this judgment to the facts and circumstances as well as the question involved in this revision petition. In the aforementioned judgment, the question involved was with respect to the due service of summons on the defendant. There is no such question involved in the present case. Admittedly, the parties were duly served and the suit was proceeding in accordance with law
7. The petitioner has made an application in terms of Order XXII Rule 4 of the Code of Civil Procedure. Sub-rule (4) of this rule runs as under:-
"(4) If a decree has been passed against a deceased-defendant, a person claiming to be his legal representative may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had not intentionally failed to make an application to bring himself on the record, the court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit".
It would be expedient to reproduce sub-rule (5) of Order XXII Rule 4 of the Code of Civil Procedure too which runs as under :-
"(5) Before setting aside the decree under Sub-rule (4) the Court must be satisfied prima-facie that had the legal representative been on the record a different result might have been reached in the suit."
From the reading of Sub-rule (4) of Order XXII Rule 4 read with the Sub-rule (5) it is discernible that a decree passed against the deceased defendant can bi set aside on the prayer of the legal representatives qua them However. it would be incumbent for them to prove: (1) that they were not aware of the suit i e they had not any knowledge of the suit, (ii) there was no intentional failure on their part to make an application to bring themselves on record. It was further made incumbent in view of sub-rule (5) which has to be read with sub-rule (4) that before a decrees is set aside the Court should satisfy itself that the result would have been different, than the one in the decree, had the legal representatives been brought on record. It is only on the satisfaction of these three concomitants that jurisdiction has been conferred on the Court to set aside a decree on such terms as to costs or otherwise, which the Court may think fit in the interest of justice.
8. The Courts below after appreciation of the evidence cantre to the conclusion that the petitioners had failed to prove that they were not aware of the pendency of the suit. Even otherwise, the statements of Ram Chander as well as that of Jai Singh one of the applicants were read in Court. I find no ground to take a different view than taken by the Courts below. It has not been disputed that earlier too the father of the applicants was prosecuting the case and it was he who has got the application for setting aside the ex-parte decree filed It is no body's case that father and sons were not having cordial relations. In the ordinary course. it was reasonable to assume that the petitioners did have knowledge of the suit when the father undisputedly continued to prosecute the suit at all relevant times including for making the application for bringing the legal heirs on record and setting aside the ex -parte decree There is nothing on record to show that the applicants had not intentionally failed to make the application. First there was a common counsel for both the brothers. Then one brother suffered an ex-parte decree and later the second brother i. e. father of the petitioners did the same.
9. On my specific asking the counsel for the petitioners as to how the presence of the legal heirs would have resulted in a different conclusion in the suit, decreed in favour of Gangs Devi, nothing has bun pointed out to show that conclusion would have been different.
10. In view of my observations made above, I do not find any force in this revision petition and the same is hereby dismissed with no order as to costs.