Dr. Ranbir Singh and others vs Gurmukh Singh and another

S.S. Sodhi, J.—The controversy raised in appeal here concerns the abatement of the suit. The question posed being whether the records of the trial court being in the High Court, in connection with a revision petition filed by the Defendant against an interlocutory order passed in the suit, constitutes sufficient cause in terms of Order 21 Rule 9 of the Code of Civil Procedure, and Section 5 of the Limitation Act, for condonation of the delay in seeking the setting aside of the abatement caused by the death of the defendent during the pendency of his revision petition ?

To narrate the background culminating in the situation that now confronts the Court, the starting point would be the year 1958 when Dr. Sohan Singh, the father of the Plaintiff Dr. Ranbir Singh held a verified evacuee claim for Rs. 25,456/- This claim was utilized by Defendant Gurmukh Singh in purchasing evacuee property for a sum of Rs. 1,01,125/-. Disputes thereafter arose between Dr. Sohan Singh and Gurmukh Singh with regard to the claim of Dr. Sohan Singh utilized in the payment of the price of the property purchased by Gurmukh Singh. The matter was referred to an arbitration and on May 16, 1968 the award of the Arbitrator was made the Rule of the Court. By this award, Gurmukh Singh was required to refund Dr. Sohan Singh''s money within two months, failing which it was held that Dr. Sohan Singh would have a proportionate share in the property purchased by Gurmukh Singh. In other words, he would then have 25456 over 101125 share in that property.

The order making the award of the Arbitrator, the Rule of the Court, was challenged by Gurmukh Singh in first appeal from order 100 of 1968. This was eventually dismissed by the High Court on October 15, 1971.

In the meanwhile, no money having been paid to him, in terms of the award of the Arbitrator, Dr. Sohan Singh in execution, obtained symbolic possession of his share in the property purchased by Gurmukh Singh. Later, after his death, his son Dr. Ranbir Singh filed a suit against the Defendant Gurmukh Singh on November 30, 1969 claiming possession of his share in the property in question by partition and also rendition of accounts. During the trial of this suit, the trial Court passed an order on March 28, 1973, closing the evidence of the Defendant Gurmukh Singh. It was against this order that Gurmukh Singh came up in revision to the High Court. This being Civil Revision- 453 of 1973.

On April 17, 1973, when the revision petition was admitted to hearing, it was ordered that final judgment be not passed by the trial court until the revision petition was decided. On the next date of hearing, that, is, April 24, 1973, the records of the case were also sent for. It was during the pendency of this revision petition in the High Court that Defendant Gurmukh Singh died on November 23, 1974.

Before proceeding further, it deserves to be pointed out that Defendant Gurmukh Singh was the sole Petitioner in the revision petition filed by him. No effort was made after his death to bring his legal representatives on record. This revision petition was eventually dismissed for non-prosecution on January 12, 1977.

A reference to the record would show that the trial court received back the records of the case from the High Court on March 21, 1977. It was thereafter that May 16, 1977, an application was filed by the Plaintiff for bringing on record Gurnam Singh as the legal representative of Gurmukh Singh. This application was opposed by Gurnam Singh by his reply filed in the trial court on August 4, 1977. It is significant to note, however, that on that very day, that is, August 4, 1977, Gurnam Singh made a statement praying that he be brought on record as the legal representative of Defendant Gurmukh Singh and the trial court so ordered. Later, however, on August 8, 1977, Gurnam Singh filed an application stating therein that the statement made by him on August 4, 1977, that he be impeded as the legal representative of Defendant Gurmukh Singh, had been made by him under a mistaken belief about the filing of a proper application for impleading the legal representative of the deceased-Defendant, as the suit already stood abated and his statement, therefore, had no legal value. It was accordingly prayed that this statement be not taken into consideration and the suit be dismissed as having abated. This prayer was accepted by the trial court by its impugned order of October 25, 1977, an order which cannot indeed be sustained.

The law is well-settled that an application to bring on record the legal representatives of the deceased-Defendant, after the time prescribed should ordinarily be treated as an application to set aside the abatement: In AIR 1928 746 (Lahore) the court in fact went further and held that the application should be so treated even-though it is not asserted that the delay was due to reasonable cause. It was further held that on proof of sufficient cause for the delay, the application should be granted. A similar view was taken by our Court in Bachan Ram and Others Vs. The Gram Panchayat Jonda and Others, , and in Smt. Shakuntala Devi Vs. Banwari Lal and Others,

As regard the delay in making of the application for substitution, ample justification and sufficiency for condonation of the delay is provided by the fact that the Defendant Gurmukh Singh died when the records of the case were not before the trial court and it was within 60 days of their reaching there that the application was made. Coupled with this is the telling circumstances that the trial court actually impleaded Gurnam Singh as the representative of the Defendant and that too on his own request.

In dealing with this matter, the trial court had sought to draw a distinction, in this behalf, between a case whereby merely the passing of the final order is stayed by the appellate or the revisional court and the other where proceedings before it are stayed. This is indeed a distinction more apparent then real, as it loses its significance when the records are called for and are no longer before the court below. In the absence of records, no proceedings can obviously take place and. the suit or proceedings in effect, come to a stand stil there. In the absence of the record, therefore, making an application for substitution before the trial court could merely be an exercise in futility as the court would not be able to pass either an order allowing or disallowing it until the records are there. This being so, when the records of the trial court have been sent to the appellate or the revisional court, in matters like bringing the legal representatives on record, the order merely staying final judgment in the suit deserves to be treated at par with an order staying proceedings in the suit. Logically, it follows from this that an application for substitution must be held to be competent in the original court within a reasonable time of the records being received back by it. This would be in keeping with the view expressed in Venkat Narsimban Reddy v. Konda Reddy (deceased) and Ors. A. I. R 1951 Hyd. 55., where it was held that where the Defendants in the suit go up in revision against an interlocutory order in the suit, the suit cannot be said to be pending in the original court when the records are no longer before it and no question of substitution of legal representatives of the deceased would, therefore, arise in the original suit. The application for substitution of legal representatives would be maintainable in the original court within a reasonable time of the case being sent back to that court.

Seen in this context it must indeed be held that there was sufficient cause for the setting aside of the abatement and the condonation of the delay under Order 22 Rule 9 of the Code of Civil Proce-dure and Section 5 of the Limitation Act. The abatement of the suit is accordingly hereby set aside and Gurnam Singh is ordered to be impleaded as legal representative of Defendant Gurmukh Singh

This appeal is consequently hereby accepted with costs. Counsel fee Rs. 500/-.

Considering the extraordinary delay that has already taken place in the trial of this suit, a specific direction is issued to the trial court to decide this case as expeditiously as possible and to take proceedings from day to day whenever feasible. Parties are directed to appear before the trial court on September 1, 1986.