Mohd. Rashid vs Mohd. Hanif and Others

J.V. Gupta, J.—This appeal is directed against the order of the Additional District Judge, Ambala, dated 25th February, 1967, whereby the appeal filed by the Defendant/Mohd. Rashid was dismissed having abated.

Modd. Hanif filed the suit for possession of his 1/3rd share against his two brothers Niaz Mohammad and Mohd Rashid, which was decreed by the trial court vide its judgment dated 28th August, 1980. Both the said Defendants filed the appeal, which was accepted on 9th September, 1982, and the case was remanded to the trial court for fresh decision. However, on appeal to this Court on behalf of the Plaintiff, the remand order was set aside on 20th January, 1984. The lower appellate court sent for the report of the trial court which was received on 2nd January, 1985. Meanwhile, on 5th June, 1986, one of the Appellants, i.e., Niaz Mohammad died. His legal representatives filed an application for bringing them on record on 10th February, 1987, alleging therein that they had come to know for the first time on 31st January, 1987, of the litigation pending between their father and their uncle. That application was contested on behalf of the Plaintiff-Respondent Mohd. Hanif. The learned Additional District Judge after recording the evidence came to the conclusion that the legal representatives of the deceased had failed to prove sufficient cause for setting aside the abatement or condoning the delay. Consequently, the appeal was dismissed as abated.

Learned Counsel for the Appellant submitted that they only Came to know of the pendency of the appeal for the first time on 31st January, 1987, and so, the application was filed on 10th February, 1987, for bringing them on record. According to the learned Counsel, the deceased Niaz Mohammad was illiterate and he himself used to attend hearings of the case, and, therefore, the legal representatives, never know that any such litigation was pending between their father and uncle. It was further submitted that on the facts and circumstances of the case, the applicants being illiterate and belonging to country-side were not supposed to know that an application was required to be filed on their behalf for bringing them on record as the legal representatives of the deceased, and, therefore, keeping in view that circumstance the delay should have been condoned. In support of the contention, he referred to Ram Sumiran v. D.D.C. 1985 C.L.J. 652, and Smt. Shankri v. Som Nath (1986 89 P.L.R. 462). On the other hand, learned Counsel for the Respondent/Plaintiff submitted that it was for the court concerned to form an opinion whether there was sufficient cause or not for condoning the delay. According to the counsel since on an appreciation of the evidence it has been found that there was no sufficient cause, the same should not be interfered with in this appeal.

After hearing the learned Counsel for the parties, I find force in the contentions raised on behalf of the Appellant. It is not disputed that the legal representatives of the deceased Niaz Mohammad, Defendant were illiterate and belonged to a rural area. That being so, it could not be presumed that everyone must know that on the death of a party, the legal representatives are to be brought on record within a certain time. Reference in this behalf may be made to Ram Sumiran''s case (supra). This matter also came up for consideration before this Court in Shmt. Shankri''s case (supra)where the abatement was set aside on payment of costs. Thus keeping in view the above said authorities, the legal representatives should have been brought on record after condoning the delay, on payment of costs Consequently, the appeal succeeds, the order under appeal is set aside and the application of the legal representatives of the deceased Defendant Niaz Mohammad is allowed on payment of Rs. 200/- as costs.

The parties, through counsel, are directed to appear before the District Judge, Ambala, on 5th January, 1988. The legal representatives be brought on record as directed above and the appeal be disposed of on merits in accordance with law.

The records of the case be sent back forthwith.