Kartar Singh vs Chetin Singh

Mehar Singh, C.J.—This is an appeal under clause 10 of the Letters Patent from the judgment and decree, dated May, 16, 1966, of a learned Single Judge dismissing the appellant''s second appeal The facts appear below.

A suit by Chetin Singh plaintiff was decreed against Kartar Singh defendant. Second appeal by the defendant was filed on February 7, 1966, after the judgment and decree of the first appellate Court of December 18, 1965. The respondent to the appeal was plaintiff Chetin Singh who had died on January 18, 1966, that is, before the filing of the second appeal. The last date for filing the second appeal, after making allowance for the time taken in obtaining the requisite copies, was March 20, 1966. However, it was not until April 5, 1966, that an application was moved by the defendant that the legal representatives of plaintiff Chetin Singh deceased be impleaded on the record of the second appeal because he had died. By April 5, 1966, if the second appeal is taken to have been filed on that date, it was barred by time by sixteen days. In the application of April 5, 1966, no prayer was made for condonation of delay nor an explanation rendered how the delay occurred, in other words, there is no sufficient cause shown for preferring the appeal by April 5, 1966, if the appeal against plaintiff Chetin Singh deceased, being against a dead person, was to be considered to have been filed against his legal representatives.

A preliminary objection was raised on behalf of the legal representatives of the deceased plaintiff that the appeal was initially incompetent and a nullity having been made and filed against a dead person. After referring to a number of cases cited before him. the learned Single Judge in the end declined to accept that this case fell within the meaning and scope of section 153 of the CPC and, following Boondu v. Moti Chand A.I.R 1923 Lah. 652 (1), Gopalakrishnayya v. Adivi Lakshmana Rao AIR 1925 Mad. 1210 and Amar Kaur and Others Vs. Sadhu Singh and Others, , came to the conclusion that the appeal having been filed against a dead party, was a nullity. So the learned Single Judge dismissed the appeal before him.

In the arguments in this appeal there has been reference to six reported cases which, according to the learned counsel for the parties, have bearing upon the competency or otherwise of second appeal by defendant Kartar Singh. The first one is Boondu''s case, but in that case the suit had been brought in the name of a dead plaintiff and under 0.1, rule 10 of the CPC his legal representatives were not permitted to be brought on the record to continue the suit, the learned Judges holding that the Court had no jurisdiction to allow the plaint to be amended by substituting the names of the representatives of the deceased especially when it was not shown that there was any bona fide mistake. It was not a case of a dead defendant against whom the suit had been tiled or a dead respondent against whom an appeal had been filed. The second is Gopalakrishnayya''s case, which is directly in point, as in that case the appeal had been instituted against a dead respondent and the learned Judges held that ''the Court may u/s 153. Civil Procedure Code, permit the cause title to be amended or may return the appeal memorandum for amendment and re-presentation. In any case the Court will, if the appeal is out of time against the legal representative, have to excuse the delay in presentation before it can proceed to hear the appeal,'' This is a case as has been said above, which is directly in point. The learned Judges held that u/s 153 of the CPC the cause-title of the memorandum of appeal could be amended or the party asked to represent the appeal, but that if the appeal at the time of amendment of the cause-title or re-presentation be barred by time, the Court will have to excuse the delay in presenting it, so far as the legal representative of the deceased respondent be concerned, before it can proceed to hear the appeal. The third ease is Mehar Singh v Labh Singh AIR 1932 Lah. 305 in which the learned Judge followed Gopalakrishnayy''s case (Supra). The fourth is Amar Kaur''s case which is apparently not directly in point because in that case the appeal was for a deceased appellant whose legal representatives were not impleaded within limitation. The fifth case is Goverdhan Dass v. Darshan Singh, (1968) 70 P L R 968 but in that case at the date of impleading of the legal representatives of the deceased defendant the suit of the plaintiffs was within time. So, that case is of no assistance in the present case. The last case is Punjab State Vs. Kabul Singh and Others, . Though in that case the question that arises in this appeal did not come in for consideration of the learned Judges directly, but as the learned Judges held in the case of one of the respondents to the appeal having been dead on the date of the filing of the appeal and his legal representatives not having been impleaded within time, the appeal qua him abated, this lends some support to the view of the Madras Full Bench in Goplakrishnayya''s case (Supra) and of the Lahore High Court in Mehar Singh''s case AIR 1932 Lah. 305.

This is not a case in which a suit or an appeal was instituted for or in the name of a dead plaintiff or appellant, in which case in the event of the limitation running out, the consequence might well be quite different, but this is a case of a sole respondent to the appeal having died before the institution of the appeal by the appellant (defendant). This case comes within the ratio of Gopalakrishnayya''s and Mehar Singh''s case, AIR 1932 Lah. 305 already referred to above. According to those cases in such an eventuality the Court has the power u/s 153 of the CPC to correct an obvious mistake and to permit the impleading of the legal representatives of a deceased respondent as in this case, but subject to the question of limitation. Obviously if by the time the legal representatives of such a deceased party comes on the record, the suit or the appeal, as the case may be, was barred by time, than the Court will only excuse delay if sufficient cause explaining the same is made out The learned counsel for the defendant contends that Gopalakrishnayya''s case (Supra) shows that delay in such cases may be condoned as a matter or course, but that really is not and cannot be so. The plaintiff or the appellant has to explain the sufficiency of the cause for the delay and, if it is accepted, then the suit or the appeal will be proceeded to hearing, otherwise not. In this approach, it is not necessary to go into the question whether the second appeal of the defendant in the present case was a nullity. The application for impleading the legal representatives of the deceased plain-tiff having been made sixteen days after the last date of filing the appeal, the appeal against the legal representatives of the deceased must be taken to have been filed on the date on which that application was made. So the defendant had to explain every single day''s delay in not making such an application within time. The learned counsel for the legal representatives of the plaintiff urges that no application on behalf of the defendant u/s 5 of the Limitation Act was ever moved before the learned Single Judge. No such formal application need necessarily have been moved if otherwise in the main application for bringing on the record of the appeal the legal representatives of the deceased plaintiff, sufficient cause had been shown ex-plaining the delay for making such an application, so that if the appeal against such legal representatives was taken as presented on that very day, the delay in its filing could be condoned so far as the defendant was concerned. In the present case no cause what soever has been shown for the delay in making the appeal against the legal representatives of the deceased plaintiff sixteen days beyond the date of filing it according to the law of limitation. On this ground alone the defendant''s appeal cannot succeed. It is, therefore, dismissed, but, in the circum-stances of the case, there is no order in regard to costs.

P.C. Jain, J.

I agree.