Mohanlal vs Kashyaplal and Others

Dilip Raosaheb Deshmukh, J.—Heard on application I.A. No. 1351/2005 for substitution of legal representatives of Respondent No. 1/Kashyaplal who died in July 1999 as also on I.A. No. 1352/2005, which is an application for condonation of delay in bringing the legal representatives of the deceased -Respondent No. 1/Kashyaplal, on record.

Brief facts are that the Appellant/Plaintiff instituted a Suit No. 65-A/ 1984 before the District Judge, Raipur for specific performance of an oral agreement dated 29.06.1983 against vendor Respondent No. 1/Kashyaplal and the subsequent purchasers (Respondents No. 2 to 5) of the suit land and house situated thereon. The Appellant/Plaintiff failed to prove that the Defendant/ Respondent No. 1 had orally agreed to sell the suit land and house to him on receiving a meager sum of Rs. 10,000/- as earnest money. The suit was dismissed by judgment and decree dated 11.01.1995. First Appeal was preferred by the Appellant/Plaintiff on 27.1.1995. On 26.02.2001 learned Counsel for the Respondents No. 2 to 5 filed an application (I.A. No. 217/2001) F.A. No. 32 of 1995, Decided on 27.2.2008 under Order 22 Rule 10A giving intimation of the death of Respondent No. 1/ Defendant -Kashyaplal in July 1999 and praying that the appeal be dismissed as abated. Notice of this application was served on the Appellant on 23.04.2004. The Appellant moved an application on 14.08.2005 for substitution of legal representatives of the deceased/Kashyaplal as also for condonation of delay in filing the said application.

Dr. Nirmal Shukla, learned Senior Advocate appearing for the Appellant/Plaintiff while placing reliance on Ram Nat h Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and others, AIR 2002 SCW 978 argued that express "sufficient cause" within the meaning of Section 5 of the Limitation Act or Order 22 Rule 9 of the Code should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. Learned Senior Advocate did not deny that Respondents No. 2 to 5 had taken possession of the suit land and house. It was also urged that the Appellant/Plaintiff had learned about the death of Kashyaplal only on 23.04.2004 when the notice of I.A. No. 217/2001 was served on him, and therefore, the delay in substitution of the legal representatives should be condoned. It was also urged that the Appellant/Plaintiffs right to sue was unfettered by the death of Respondent No. 1/Defendant - Kashyaplal and survived against the subsequent purchasers i.e. the Respondents No. 2 to 5.

On the other hand, Shri Sanjay S. Agrawal, learned Counsel for the Respondents No. 2 to 5 vehemently opposed the prayer and placed reliance on Dwarka Prasad Singh and Others Vs. Harikant Prasad Singh and Others, and Smt. Manni Devi Vs. Ramayan Singh, . It was urged that in a suit for specific performance of oral contract, the vendor was a necessary party and without impleading the legal representatives of the deceased Respondent No. 1 i.e. vendor, the first appeal abated as a whole. It was also argued that the Appellant/Plaintiff had failed to show sufficient cause for the delay in filing the application for substitution of legal representatives of deceased/Respondent No. 1 - Kakshyaplal. It was urged that the application (I.A. No. 1351/2005) itself reveals that the Appellant/ Plaintiff had knowledge of the death of Kashyaplal in July 1999 and the efforts made by the counsel for Respondents No. 2 to 5 to send a copy of the application (I.A. No. 217/2001) to him. Even after service of notice on 23.04.2004, the Appellant/Plaintiff filed an application after considerable delay on 14.08.2005 for which there was no sufficient cause.

Having heard the rival submissions,I have perused the record. In a suit for specific performance of oral contract, on the death of the vendor, the right to sue does not survive against the subsequent purchasers alone and the legal representatives of the deceased - vendor ought to be substituted within time prescribed by the law of limitation to prevent passing of an inconsistent and contradictory decree. In the present case, it is not in dispute that Kashyaplal died in July 1999 and an application was not filed within limitation for substitution of his legal representatives in first appeal as Respondents. In the absence of the legal representatives of the deceased Kashyaplal i.e. vendor, the appeal abated as a whole as either an inconsistent and contradictory decrees will have to be passed or proper relied could not be granted. Therefore, for not substituting the legal representatives of deceased/Respondent No. 1- Kashyaplal within time, the appeal abated as a whole.

The only question that requires consideration is whether in the light of the decision of the Apex Court rendered in Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors. (supra), sufficient cause has been shown for condonation of delay in making an application for setting aside the abatement of appeal and for permitting the Appellant/Plaintiff to bring the legal representatives of the deceased Respondent No. 1 - Kashyaplal on record. Admittedly, the Appellant/Plaintiff is not in possession of the suit land and house. Notice of I.A. No. 217/2001 was served on the Appellant/Plaintiff on 23.04.2004. Despite this, he took no steps to file an application for substitution of the legal representatives of the deceased/Respondent No. 1 -Kashyaplal on record till 14.08.2005. The application (I.A. No. 1352/2005) lacks bonafides and shows an indolent attitude on the part of the Appellant/Plaintiff. It does not show that the Appellant/Plaintiff was prevented by any sufficient cause whatsoever, after service of notice of I.A. No. 217/2001, in applying for bringing the legal representatives of deceased Kashyaplal on record. Thus, I am of the considered opinion that sufficient cause has not been shown to condone the delay. The Appellant/Plaintiff having already vacated the suit land and house and shifted to his village in Chandiapara, District Raipur, has failed to show that the delay in making an application for substitution of legal representatives of deceased Respondent No. 1 - Kashyaplal was bona fide or due to sufficient cause.

In the result, I.A. No. 1352/2005 for condonation of delay is dismissed. Consequently, I.A. No. 1351/2005 for substitution of legal representatives of Respondent No. 1/Kashyaplal also stands dismissed.

In an appeal against dismissal of the suit for specific performance of oral contract, the deceased Respondent No. 1/vendor being a necessary party and his legal representatives not having been substituted within time prescribed by the law of limitation, the appeal abates as a whole. In the circumstances, parties shall bear their own costs.