Poonam Chand Bhati vs Chhoti Devi and Others

Kanwaljit Singh Ahluwalia, J.—Instant petition has been preferred under Article 226 of the Constitution of India in order to assail the order dated 26.09.2015, whereby Rent Appellate Tribunal, Jaipur Metropolitan, Jaipur (herein after referred as ''Rent Tribunal'') condoned the delay in filing of application under Order 22 Rule 3 of Code of Civil Procedure, 1908 and ordered substitution of legal heirs of Chhoti Devi, deceased/appellant to appeal bearing No. 103/2013.

Chhoti Devi, being landlady preferred an application under Sections 9 & 10 of the Rajasthan Rent Control Act, 2001 (herein after referred as ''Act of 2001'') before Rent Tribunal for eviction of the petitioner from the shop situated in House bearing No. 858 Ankado-ka-rasta, Kishanpole Bazar, Jaipur on the ground of personal-bonafide-necessity and default in payment of rent.

Chhoti Devi, landlady had also sought revision of rent. On 12.07.2013 Rent Tribunal dismissed application for eviction. However, Rent Tribunal revised the rent. Aggrieved against the judgment dated 12.07.2013 rendered by Rent Tribunal, Chhoti Devi preferred an appeal under Section 19(6) of the Act of 2001. During pending of the appeal, Chhoti Devi died on 30.10.2013. After one-year & twenty-four days of the death of Chhoti Devi on 24.11.2014 three sons of Chhoti Devi, namely Ganpat Lal, Mohan Lal and Rambabu, respondents No. 1/1, 1/2 and 1/3 herein filed an application under Order 22 Rule 3 read with Section 151 C.P.C. for their impleadment as legal heirs of deceased Chhoti Devi. The Rent Tribunal, vide its impugned order dated 26.09.2015, condoned the delay in filing application and after accepting the application under Order 22 Rule 3 C.P.C. ordered substitution of legal heirs of Chhoti Devi and the respondents No. 1/1 to 1/3 were brought on record to pursue the appeal.

Mr. Mahesh Chand Gupta, the learned counsel appearing for the petitioner, has contended that as per provisions of Code of Civil Procedure, 1908, after expiry of period of ninety days, the appeal has to automatically abate. It is urged on behalf of the petitioner that the application filed by legal heirs, after one-year & twenty-four days of the death of Chhoti Devi was barred by period of limitation and, hence, a grave error has been committed by the Rent Tribunal to accept the application filed by the legal heirs.

The Rent Tribunal, while accepting the application condoned the delay in filing of application for impleadment of legal heirs. The Court observed that in numerous judicial pronouncements, it has been held that the Court should condone the delay and accept the application for impleadment of legal heirs liberally.

In Jeet Ram Vs. Gangaphal, reported in 2006 (3) RCR (Civil) 407, the learned Single Judge of Punjab and Haryana High Court, held as under:-

"9. After hearing the arguments of learned counsel for both the parties, I am of the opinion that the application filed by the applicants for substituting them as legal representatives of deceased Jeet Ram and for setting aside the abatement after condoning the delay deserves to be allowed and the appeal filed by appellant Jeet Ram be heard on merits. Abatement of suit appeal for failure to move an application for bringing the LRs. of deceased plaintiff/appellant within the prescribed period of limitation is automatic and a specific order for dismissing the suit or appeal as abated is not called for. For a period of 90 days from the date of death of a party, the suit remains in a state of suspended animation and then it abates Mithailal Dalsangar Singh and Others Vs. Annabai Devram Kini and Others, . In the instant case, the appeal was admitted on 30.11.1981. Jeet Ram, the sole appellant, died on 5.4.1991. Therefore, after the expiry of 90 days, when the legal representatives of Jeet Ram were not brought on record, the appeal filed by Jeet Ram stood abated. The instant application was filed on 26.8.1987 i.e. after 6 years of the abatement. An amendment in Order 22, Rule 3(2) C.P.C. was made by this Court vide notification dated 21.2.1992. This amendment was held to be applicable prospectively and not retrospectively. Since in the instant case, the death of appellant Jeet Ram took place on 5.4.1991, therefore, the amended provision is not applicable in the instant case. Sub-rule (2) of Order 22 C.P.C. provides for setting aside the abatement by the Court on sufficient cause being shown for not applying for impleading/substituting all the legal representatives of the deceased within the time prescribed. Sub-rule (3) further provides that the provision of Section 5 of the Limitation Act shall apply to an application filed under Sub-rule (2) for setting aside the abatement.

Now, the question arises for consideration in this case is whether the applicants, who filed the application after 6 years of the abatement of appeal, have sufficiently explained the reason for condoning the delay in filing the application for setting aside the abatement. The Supreme Court in several judgments has laid down the principles for setting aside the abatement and for condoning the delay in filing the application for abatement. Abatement kills the right to sue and has the effect of unceremoniously terminating pending legal proceedings without adjudication on merits. Therefore, the provision of abatement has to be strictly construed and applied to such cases to which its applicability is undoubtedly attracted. This has been so held by the Supreme Court in Mahendra Saree Emporium Vs. G.V. Srinivasa Murthy, . In the case of Sital Prasad Saxena (Dead) by Lrs. Vs. Union of India (UOI) and Others, , the Supreme Court while dealing with a case where in second appeal, appellant died and an application for substitution after condonation of delay and setting aside the abatement was filed, has set aside the abatement while observing that "once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing. And in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party. Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties." In another case of Rama Ravalu Gavade Vs. Sataba Gavadu Gavade (Dead) through Lrs. and Another, , where the High Court had refused to condone the delay in making an application for setting aside the abatement, the Supreme Court, while setting aside the order of the High Court and while condoning the delay in filing application directed the appellate Court to dispose of appeal on merit and observed that the High Court was not right in refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer. In the case of N. Balakrishnan Vs. M. Krishnamurthy, , again the Supreme Court considered and laid down the principle for setting aside the abatement, after condoning the delay, when the application for substituting the legal representatives of the deceased appellant was not filed within the prescribed period of limitation. In that case, the application for setting aside the abatement was filed after the delay of 883 days. The trial Court condoned the delay and set aside abatement after finding that sufficient cause was made out for condoning the delay. The said order was set aside in revision by the High Court. The Supreme Court, while setting aside the order of the High Court, observed that of "Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences." The Supreme Court further observed that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice, the time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. It has been further observed that a Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. It has been held that the words ''sufficient cause'' under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lend against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. In Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others, , the Supreme Court has observed as under:-

"12. Thus, it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22, Rule 9 of the Code or any other similar provisions should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the court should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when strokes (stakes?) are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."

Again the Constitutional Bench of the Supreme Court in S. Amarjit Singh Kalra (dead) by Lrs. and Others and Smt. Ram Piari (dead) by L.Rs. and Others Vs. Smt. Pramod Gupta (dead) by Lrs. and Others, has observed that the Court should adopt a liberal approach in the matter of condonation of delay. The High Court should have, on the very perception it had on the question for abatement, allowed the applications for impleadment even de hors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of theirs. It has been observed that interest of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection of the application to set aside the abatement, condonation of delay and bringing on record the legal representatives is not in conformity with the object of the Court to do real, effective and substantial justice. The Supreme Court further observed as under:

"....A careful reading of the provisions contained in Order 22 C.P.C. as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice."

The Supreme Court has also observed as under:-

"27. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.... With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tends to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it."

In view of the aforesaid laid down by the various judgments of the Supreme Court, delay in filing the application for setting aside abatement of the appeal is liable to be condoned, as in my opinion, the applicants have shown the sufficient cause for condoning the delay. I do not find any substance in the contention of learned counsel for the respondents that no separate application under Section 5 of the Limitation Act for condonation of delay has been filed. Undisputedly, in the application, filed by the applicants, for setting aside abatement, a specific prayer has been made that delay in filing the application be condoned. In my opinion, this prayer in the application itself is sufficient and the same can be treated a prayer for condonation of delay under Section 5 of the Limitation Act. Merely because a separate application has not been filed, the prayer for condoning the delay in filing the application for setting aside the abatement of appeal cannot be declined. In Mithailal Dalsangar Singh''s case (supra), an application for bringing on record the LRs was filed after the expiry of the period of limitation. In the said application, a specific prayer for setting aside abatement was not made. A contention was raised that in absence of such a prayer, abatement of the appeal cannot be set aside. While rejecting the contention, the Supreme Court has observed that too technical approach in such cases, is not called for. Thus, in the instant case, where there is a specific prayer for condoning the delay, same is sufficient and can be treated as a prayer made under Section 5 of the Limitation Act."

I am in agreement with the above observations made by the learned Single Judge of Punjab and Haryana High Court in the case of Jeet Ram (supra).

In view of settled legal position, which has been reproduced herein above, I find no infirmity in the impugned order passed by the Rent Appellate Tribunal and, hence, the same is upheld and the present writ petition, being devoid of merit is, hereby, dismissed.

Upon dismissal of main petition, stay application, filed therewith, does not survive and the same is also dismissed.