Gibson vs Ramji Dass

A.L. Vaidya, J.—Late Sh. Gibson had filed a suit for possession for the property in dispute as described in the plaint against Sh. Ramji Dass, Defendant-Respondent No. 1. Sh. Gibson asked for the decree in his favour and in favour of proforma Defendants No. 2 to 6 (Respondents). The trial Court decreed the suit. In an appeal before the first Appellate Court preferred by Sh. Ramji Dass, Defendant-Respondent, the judgment and decree passed by the trial Court were set aside and the appeal was accepted vide judgment dated 3.3.1994. Sh. Gibson, the original Plaintiff preferred the present regular Second Appeal No. 124/94 before this Court assailing the judgment and decree passed by the first Appellate Court.

Sh. Gibson died during the pendency of the appeal on 18th August, 1995. The present application under Order 22 Rule 3 read with Section 151 CPC for bringing on record the legal representatives of the deceased Appellant was filed with the additional prayer of setting aside the abatement and condoning the delay in moving the application. This application was filed by Sh. Asha Ram proforma Respondent No. 4. It was pleaded in this application that the sole Appellant Sh. Gibson died on 18th August, 1995 during the pendency of the appeal and the right to sue survived. Following were named the legal representatives of the deceased-Appellant:

1.

Sh. Sunder Singh

son

2.

Sh. Devinder

son

3.

Ilawati

daughter

4.

Urmila

daughter

5.

Munni

Daughter.

It was also averred in the application that the delay in filing this application for bringing on record the legal representatives of the deceased was due to the fact that one of the relations in the family was murdered and the family remained busy in investigation which was being conducted by the police and now since the investigation was over, this petition was filed after obtaining death certificate and the particulars of the legal representatives of the deceased. The delay in filing the application as such was not intentional. It was also submitted in the application that legal representatives of the deceased Appellant could not be brought on record as they were under great stress and strain because of death of Gibson and also murder of the son of Asa Ram proforma Respondent. It was pleaded in the application that interest of Asa Ram was similar to that of the Appellant as they belonged to the same family and there was no negligence or inaction or want of bona fide on the part of the applicant for moving the application for bringing on record the legal representatives of Gibson and for setting aside the abatement.

This application has been contested on behalf of the Defendant-Respondent No. 1.

The averments made in the application were denied and it was pleaded that the grounds pleaded for setting aside the abatement were incorrect.

Learned Counsel for the parties have been heard and the record has also been gone through.

After hearing the arguments of the learned Counsel for the parties, the following points for determination arise:

Whether the application of present nature can only be moved by the proposed legal representatives of the deceased-sole Appellant or it could be moved by any other interested party?

Whether there are sufficient grounds to condone the delay in filing the present application and for setting aside the abatement?

Before the legal proposition argued is taken note of, there are certain admitted circumstances which can at the first instance be referred.

Sh. Gibson died on 18th August, 1995 and the present application was preferred on 20th May, 1996. This application has been preferred by the proforma Respondent No. 4 who had some interest in the suit as late Sh. Gibson was having Sh. Gibson as pointed out above had asked for a decree in his favour along with proforma Defendants which included this Asa Ram also. The present application was filed by Sh. Asa Ram through Sh. Kapil Dev Sood, Advocate. Sh. Kapil Dev Sood also filed Power of Attorney on behalf of the proposed legal representatives of Sh. Gibson deceased on 20th May, 1996 as is revealed from the Power of Attorney, attached in Part-B of the file. The present application by Asa Ram was also filed on 20.5.1996.

Learned Counsel for Respondent Ram Ji Dass contended with force that the present application having been preferred by the proforma Respondent was not legally maintainable under law inasmuch as the same has not been filed by the proposed legal representatives, as according to the learned Counsel requirement of law was that such an application was to be preferred by the proposed legal representatives of the deceased alone. While on the other hand, learned Counsel for applicant/proforma Respondent has submitted that there was no such requirement of law,, but on the other hand such application could be filed by any interested person who interest did not clash with the interest of the deceased. In order to appreciate the aforesaid submissions, law in this behalf at the first instance has to be taken note of. At this stage Order 22 Rule 3 CPC for the sake of convenience is being reproduced hereinunder:

Where one of two or more Plaintiffs dies and the right to sue does not survive to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased Plaintiff to be made a party and shall proceed with the suit.

2......

The aforesaid provision nowhere contemplates or specifies any particular person to move an application in this behalf. There is nothing in the aforesaid provision that such an application is to be moved by the proposed legal representatives alone. Thee is also no bar for moving such application under the aforesaid provision by any third person more so, by a person interested in the litigation. The pre-requisite to bring on record the legal representatives of the deceased-Plaintiff as provided in this provision is through an application alone. They cannot be so brought on record suo motu. Thus, a regular application is necessary. Taking into consideration the facts of the present case as discussed above the application has been filed by none else than the proforma Respondent in whose favour also the deceased-Plaintiff had asked for grant of decree. Moreover, in the present case, the proposed legal representatives were represented by the same lawyer even on that date when this application was filed. There is an affidavit filed by one of the proposed legal representatives Sh. Sunder Singh wherein he has solemnly affirmed as to how he could not file the application earlier and he has requested Asa Ram to file application for bringing on record the legal representatives of the deceased-Plaintiff. There is no doubt that Asa Ram in the present application did not allege the aforesaid fact conveyed to him by one of the proposed legal representatives of the deceased-Plaintiff, but the fact remains that the power of attorney of the lawyer of proposed legal representatives f6rmed part of the record on that very date when the present petition was filed.

Learned Counsel for the parties have tried to support their submissions on the basis of decided precedents.

Learned Counsel for the Appellant has relied upon Union of India (UOI) Vs. Ram Charan and Others, Kedar Nath Vs. Bismillah Begam and Another,

The Apex Court in Union of India v. Ram Charan(Supra) observed as under;

The procedure under Rules 3 and 4 requires an application for the making of the legal representatives of the deceased Plaintiff or Defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the Plaintiff as by the abatement of the suit the Defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased-Plaintiff is concerned or as against the deceased-Defendant. The fact of such an abetment on the suit of the surviving Plaintiffs or the suit against the surviving Defendants depends upon other considerations.

15 In G.V. Arunachalam Aiyer v. Lakshminarasimham (supra) it has been held that where the appeal has not abated by reason of the death of the Appellant an application to bring on record his legal representatives at the instance of the Respondent is maintainable. It has been further held that it need not be made by the legal representatives only.

In Kidar Nath v. Bismillah Begam (supra) it has been held that the Order 2 Rule 3 read with 11 of the CPC does not confine to make an application to bring on record the legal representatives of the deceased-Plaintiff or Appellant to them alone. It has been further held that where the Defendant or a Respondent is interested in bringing the decease-Plaintiff or Appellant''s legal representatives on the record, it would be open for him to do so.

Sh. G.D. Verma, learned Counsel for the Defendant-Respondent No. 1 in order to gain some support in favour of his submission that only legal representatives are required to make such application has cited Multani Ram and Others Vs. Chuhara Ram and Others, Mst. Bakhtawari Vs. Sadhu Singh and Others, and Thakur Vs. Mst. Maida Kaur and Others, If one goes through these cases, the ratio decided therein does no help the point being urged on behalf of the Respondent. In all the aforesaid cited cases no application to bring on record the legal representatives was filed by a party or by the proposed legal representatives.

In Multani Ram v. Chuhara Ram (supra) one of the Appellants died and no application was filed to bring on record his legal representatives. It was held that appeal abated in toto. The reasoning given was that the finding of the first Appellate Court had become final as the appeal against the deceased-Appellant had abated and in case the second appeal was allowed to proceed and this finding was reversed it would result in contradictory decrees and this was not warranted by law.

In Mst. Bakhtawari v. Sadhu Singh (supra) the sole Appellant died and her legal representatives made no application to the Court for being impleaded as such and the appeal abated. It was held that the legal representatives of the Appellant were impleaded by the Respondents for the purpose of cross-objections filed by them, will not help the legal representatives in saving the appeal. It was also observed that the Respondents cannot force the Appellant to prosecute the appeal and any application which the Respondents made for bringing the legal representatives of the Appellant on record can at the most be treated as one for the purpose of cross-objections only. In this case the Appellant and the Respondents were not having the same interest.

In Thakur v. Mst. Maida Kaur (supra) the facts were that a suit for possession was filed against the several Defendants. Puttu and Thakur, two brothers were arrayed as Defendants to the suit, which was decreed. Thereafter, Thakur alone appealed and subsequently the sole Appellant Thakur died. In that case, no application was filed to bring his legal representatives on record within the period of limitation later on an application was filed on behalf of Puttu in which it was prayed that name of the application be struck off as Respondent No. 4, and he be transposed to the array of the Appellants in place of Thakur deceased and he be allowed to prosecute the appeal against the Respondent. It was mentioned that Puttu was the sole legal representative of the Appellant Thakur who had died. In the aforesaid circumstances it was held that the sole Appellant being dead, there was, in fact, no appeal pending in the Appellate Court and after the expiry of the period of limitation the appeal abated. It was also held that the applicant Puttu could not claim that he must be deemed to be an Appellant and the appeal still pending. There being, therefore, no pending appeal, he could not claim to be transposed. It was further observed that the proper course was opened for him to apply for substitution of names within the period of limitation and, if the period of limitation ha,d already expired to apply u/s 5 of the Limitation Act for condonation of the delay, if he could make out sufficient cause for condonation.

Thus, taking into consideration the factual as well as the legal aspects, as discussed above, the present petition preferred by the proforma Respondent-Asa Ram for bringing on record the legal representatives of the sole deceased-Appellant along with for setting aside the abatement was legally maintainable, and on that basis the proposed legal representatives can safely be brought on record.

In so far as the other aspect for setting aside the abatement and for condonation of delay in filing the present petition are concerned, that aspect has not been seriously contested on behalf of the Respondent. Otherwise also, the Courts have been adopting liberal approach while condoning the delay in such like cases. In the present case the affidavit sworn in by one of the proposed legal representatives coupled with the affidavit of Asa Ram makes out a case in favour of the Petitioner for condonation of delay as well as for setting aside the abatement.

In view of the foregoing reasons the present petition is accepted and the persons mentioned earlier are ordered to be brought on record as legal representatives of the deceased-Appellant. Accordingly, petition stands disposed of.