Lal Singh vs Multan Singh and Others

Harnam Singh, J.—Briefly summarised the material facts are these: Bishan Sarup Defendant 1 instituted a suit for possession of the suit property by specific performance of an agreement of sale against Defendants 1 to 4 and Defendants 6 and 7 in the suit out of which this appeal has arisen. That suit was decreed on 12-2-1940 and the decree passed by the trial Court was confirmed by the Additional District Judge of Hissar on 16-5-1942. Rattan Lal and Chaman Lal Respondents 6 and 7 in these proceedings went up in appeal from the decree passed on 16-6-1942, but the appeal failed and was dismissed by the High Court on 13-11-1942.

Lal Singh Plaintiff-Appellant then instituted the suit for possession by pre-emption of the suit property on 2-11-1943, out of which this appeal has arisan. The suit was dismissed with costs on 30-11-1944. Lal Singh then filed an appeal in the Court of the District Judge, Hissar, from the decree passed by the trial Court in Civ. Suit No. 204 of 1943 on 30-11-1944. The appeal, however, failed and was dismissed on 23-2-1946.

From the decree passed by the lower appellate Court on 23-2-1946, Lal Singh has come up in further appeal u/s 100, Code of Civil Procedure, 1908.

Now, Bishan Sarup, the sole contesting Respondent in this appeal, died on 28-4-1948. Lal Singh Plaintiff-Appellant, however, applied in this Court under Rule 4 of Order 22, Code of Civil Procedure, 1908, on 29-1-1949, alleging that Bishan Sarup died in the month of December 1948. On that application Harchand Rai and Ram Chand Respondents 5(A) and 5(B) were brought on the record of R.S.A. NO. 1163 of 1946 subject to all just exceptions.

Mr. Shamair Chand, learned Counsel for Harchand Rai and Ram Chand, Respondents objects in these proceedings that the appeal has abated by reason of the fact that the legal representatives of Bishan Sarup were not brought on the record within the time allowed by law. In support of this objection Mr. Shamair Chand bases himself on Ex. R/1, certificate of death, showing that Bishan Sarup son of Shri Sheo Parshad aged 85 years, Hindu Khatri, resident of Katra Nil, Delhi died of pneumonia on 28-4-1948. There is no dispute in these proceedings that the certificate Ex. R/1 relates to the death of Bishan Sarup Respondent. Indeed, this objection was raised before Khosla J., on 18-8-1949. On that day Khosla J. passed the following order:

Bishan Sarup, the contesting Defendant in this case, died and an application to bring his legal representatives on record was made by the Appellant on 29-1-1949. It is contended before me that Bishan Sarup died in April 1948 and that the application was made long after the appeal had abated. Mr. Shamsher Bahadur contends that he came to know of Bishan Sarup''s death only in December 1948 and that the abatement should be set aside and extension of time should be allowed u/s 5, Limitation Act. The only evidence produced before me is a copy of the death certificate of Bishan Sarup. Mr. Shamsher Bahadur wishes to produce other evidence and I adjourn the case for six weeks for determining the question of abatement.

In pursuance of the order passed by Khosla J., Lal Singh Plaintiff put in an affidavit on 10-10-1949. In this affidavit Lal Singh Appellant affirmed that he learnt for the first time about the death of Master Bishan Sarup Respondent in the first week of January 1949. He then states that he got an affidavit attested on 8-1-1949, and instructed his Counsel Mr. Shamsher Bahadur to file an application for bringing on record the legal representatives of Master Bishan Sarup who resided before his death at Katra Nil, Delhi, situate at a distance of 21 miles from Ajronda where the Plaintiff resided.

From the perusal of the two affidavits of Lal Singh, it is clear that in the first affidavit Lal Singh Appellant did not disclose correctly the date of the death of Master Bishan Sarup Respondent. Indeed, he persists in the second affidavit that according to his information Master Bishan Sarup Respondent died in December 1948.

Now, an application to bring on the record the legal representatives of a deceased Respondent must be brought within 90 days from the date of the death of the deceased and if no application is made within the period allowed by law the appeal abates under Rule 4(3) read with Rule 11, 0rder 22, Code of Civil Procedure. The Appellant may, however, apply under Rule 9 to set aside the order of abatement within sixty days from the date of the abatement and if no application is made within sixty days then the Court may u/s 5, Limitation Act, admit the application if the applicant satisfies the Court that had sufficient cause for not making the application within 60 days. The question then arises whether the affidavit of the Plaintiff-Appellant discloses sufficient cause within the meaning of 9(2) of 0rder 22, CPC for setting aside the abatement. As stated above, the Plaintiff-Appellant alleges that he was ignorant of the death of Bishah Sarup Respondent till the first week of January 1949. In that affidavit, however, Lal Singh Plaintiff-Appellant did not disclose all the material facts relating to the death of Master Bishan Sarup. Indeed, in the second affidavit put in on 23-10-1949, the Plaintiff Appellant persists that according to the information received by him, Master Bishan Sarup died in December 1948.

In deciding such cases, the rule to be followed by Courts is that, an abatement should not be set aside as a matter of course for the reason is that when an appeal abates the setting aside of the abatement deprives the party in whose favour the abatement operates, of a valuable right. In such cases uberrima fides in essential to sustain the application and if there is expression of material facts in the affidavit on which the application under Rule 9(2) of Order 22 of the Code is based the Court will refuse to set aside the abatement. As already stated, Lal Singh is guilty of suppressio veri and suggestio falsi in the affidavits put in by him, and I find it difficult to act on his affidavit.

That being the situation of matters, I find that the Plaintiff-Appellant has failed to establish that he was prevented by any sufficient cause from bringing on the record of these proceedings the legal representatives of Master Bishan Sarup Respondent within the time allowed by law.

For the foregoing reasons, I refuse to set aside the abatement and reject the appeal as having abated, but regard being had to the circumstances of the case, I leave the parties to tear their own costs.