Gugan and Others vs Jagat Singh and Others

Rajendra Nath Mittal, J.—This judgment will dispose of C.M. No. 3037-C of 1983 in R.S.A. No. 186 of 1976, R.S.A. No. 186 of 1976, C.M. No. 3036-C of 1983 in R.S.A. No. 971 of 1977 and R.S.A. No. 971 of 1977, as they involve the common question of law and fact.

The facts in the judgment are being given from R.S.A. No. 186 of 1976. Briefly, the facts are that Khem Chand sold the land in dispute in favour of Defendants Nos. 1 to 4 vide sale-deed dated 18th August, 1970, for a consideration of Rs. 18,000/- The Plaintiffs instituted a suit for possession by pre-emption on the ground that they were the tenants on the land The suit was contested by Defendants Nos. 1 to 4 who denied the allegations of the Plaintiffs.

The trial Court dismissed the suit On appeal by the Plaintiffs, the appellate Court affirmed the judgment of the trial Court and dismissed the appeal. They have come up in second appeal to this Court. During the pendency of the appeal, Gugan and Jamani Sahai, Appellants Nos. 1 and 4 died on 20th November, 19 9, and 6th March, 1983, respectively, leaving behind their legal representatives

The legal representatives of the deceased Appellants filed C.M. No. 3037-C of 1983 under Order 22, Rules 3 and 9 of the Code of Civil Procedure, to bring them on record as Appellants, on 25th November, 1983. It is stated in the application that they did not know about the pendency of the appeal and. therefore, they could not file the application within limitation. The application is contested by Mr. Sarin who has urged that the applicants knew about the appeal and the plea taken by them is an after thought.

I have heard the Learned Counsel for the parties. It is true that in the application it is stated by the applicants that they did not know about the pendency of the appeal in this Court but they have not given the source and date of their information. The application admittedly has been filed beyond a period of 150 days. It is for the legal representatives to prove that they were prevented by sufficient cause from continuing the appeal; Order 22, Rule 9 of the Code provides that the provisions of Section 5 of the Indian Limitation Act apply to the applications under Sub-rule (2). It is well-settled that u/s 5 ibid, each day''s delay has to be explained. After taking into consideration the facts and circumstances of the case, I am of the view that the applicants have failed to explain the delay in moving the application and consequently it is liable to be dismissed.

Now, I advert to the appeal (R.S.A. No. 186 of 1976). The counsel for the Appellants has urged that the appeal does not abate on account of death of two of the Appellants 1 regret my inability to accept the submission. The case is fully covered by my decision in Hazara Singh and Ors. v. Balwinder Kaur (1983) 85 P.L.R. 169, wherein it was observed that an appellate Court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the Plaintiffs or defendants under Order 41, Rule 4, Code of Civil Procedure, when the decree proceeds on a ground common to all the Plaintiffs or defendants, if all the Plaintiff''s or the Defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22, Rule 3 of the Code.

The facts in C.M. No. 3036-C of 1983 and R.S.A. No. 971 of 1977 are similar and no additional arguments were advanced.

In the result, I dismiss both the civil miscellaneous applications and the appeals with no order as to costs.