Potsangbam and Others vs Nongmaithem Maimu Singh and Others

N.G. Das, J.—This is an application by Appellant-Petitioner No. 2 Shri Nongmaithem Mohon Singh for substitution of the legal representative of Appellant No. 1 Smti Malem Ongbi Yumjaoleima Devi.

To appreciate the points involved in this petition the facts relevant for the purpose ''nay be set out briefly.

The Appellant-Petitioner and Smti Malem Ongbi Yumjaoleima Devi filed this second Appeal No. 130/1978 against the Judgment and decree of the learned Additional District Judge dated 29th July, 1978 dismissing the appeal of the present Appellants-Petitioners. During pendency of the Second Appeal the Appellant No. 1, namely, Malem Ongbi Yumjaoleima Devi died. The Appellant-Petitioner No. 2 has therefore filed this petition for bringing her legal representatives on record by setting aside the abatement of the appeal.

It has been stated in the petition that the Appellant-Petitioner No. 2 who resides in a different village at a considerable distance went to the house of Appellant No. 1 on 1st day of May, 1991 when, to his utter surprise, came to know that Appellant No. 1 died about 3 years back leaving behind her only adopted daughter namely. Smti Malem Ningol Kshetrimayum Ongbi Thoibi Devi. The Appellant No. 2 therefore filed this application for bringing the sole legal representative on the record. The Appellant No. 2 did not quote the provision under which he filed this application. But in the prayer portion he also made prayer for condoning the delay in making this application for bringing the legal representative of deceased Appellant No. 1 on record. The learned Counsel for the Appellant-Petitioner has however, submitted that this petition may be treated to have been filed under Order 22 Rule 9 of CPC read with Section 5 of the Limitation Act.

Mr. A. Nilamani Singh, the learned senior counsel appearing on behalf of the Respondents raised a preliminary point regarding maintenance of this application as the Appellant-Petitioner did not make any prayer for setting aside the abatement which had already occurred. The further contention of the learned Counsel is that this application cannot also be granted as this application does not. disclose sufficient cause for not filing the application within the time.

Mr. H. Manglem Singh, the learned Counsel appearing on behalf of the Appellant-Petitioner has however, argued that the Appellant-Petitioner came to know about the death of Appellant No I only on 1st May, 1991. So, if the period is counted from the date of knowledge then this application for substitution is within time. But Mr. A. Nilamani Singh has contended that limitation for an application to set aside abatement of the suit starts from the date of death of the deceased and not from the date of knowledge of the Appellant-Petitioner, In support of his contention Mr. Nilamani Singh has placed reliance on the Judgment rendered by Apex Court in the case of Union of India, Appellant v. Ram Charan (deceased) through his legal Representatives, Respondents, reported in Union of India (UOI) Vs. Ram Charan and Others, In the aforesaid Judgment it has been held that the limitation for an application to set aside the abatement of a suit starts from the date of death of he deceased-Respondent and not from the date of knowledge of the death. Their Lordship in the aforesaid case have also observed that:

There is no question of construing the expression ''sufficient cause'' liberally either because the question arises in connection with the impleading of the legal representatives of the deceased Respondent. The provision of the Code are with a view to advance the cause of justice of course, the court, in considering whether the Appellant has established sufficient cause for his not continuing the suit, in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would acce (sic) for holding certain fact established, both because the question does not relate to the merits of the dispute between parties and because if the abatement is set aside, the merits of the dispute can be determined while if the abatement is not set aside, the Appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance This however, docs not mean that the court should readily accept whatever the Appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the Appellant''s default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement. It is true that it is no duty of the Appellant to make regular enquiries from time to time about the health or existence of the Respondent, but it does not meat that the mere fact of the Appellant''s coming to know of the Respondent''s death belatedly will by itself, justify his (sic) for setting aside the abatement. That is not the law. Rule 9 of order 22 of the Code require the Plaintiff to prove that he was prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know the death of the opposite party is not sufficient. Me had to stale reasons which according to him let to his not knowing of the death of the Defendant within reasonable time and to establish those reasons to the satisfaction of the court�.The court will then decide how far those reasons have been established and suffice to hold that the Appellant had sufficient cause for not making an application to bring the legal representatives of the deceased Respondent earlier on the record.

The principle that can be deduced from the above quoted passage is that the Appellant is to state the reasons for the delay in filing the application for substration of the legal heirs. If the Petitioner succeeds in proving that there was sufficient cause preventing him from filing the application within the then court will decide how far those reasons have been established. It would also be apparent from the above passage that the Supreme Court observed that it was not the duty of the Appellant to make a regular enquiry from time to time about the health or existence of the Respondents. In the case of an appeal what really happens is that after admission of the appeal the Appellant does not keep constant touch with his counsel as there is no necessity of Appellants feeing present in the court at the time of hearing. That is why one Appellant is not supposed to keep touch with another Appellant if there be more than one unless they are related or they maintain some sort of business transaction.

Here in the present case the Appellant-Petitioner has quite specifically stated that he is neither related to the Appellant No. 1 nor he used to keep any sort of commerce with her and that her house is situated in a different village at a considerable distance. This petition of Appellant No. 2 which has been supported by an affidavit has not been countered by any affidavit-in-opposition. It may also be mentioned here that this Appellant No. 2 purchased the land in suit from Appellant No. 1 These Appellants were the Defendants in the original suit and they contested the suit by filing separate written statement, Memo of appeal has however been filed jointly. Apart from this there is nothing on record to show that Appellant-Petitioner had any reason to meet any relative of Appellant No. 1 or to know about her death since 1.5.199.

So, considering the facts and circumstances, I am of opinion that reasons assigned by the Appellant-Petitioner are sufficient,

The next point urged by Mr. A. Nilamani, the learned Counsel for the Respondent is that even though it is held that Petitioner succeeded in showing sufficient reasons for not filing the application for substitution within the time even then also this application will be of no help to him as the Appellant-Petitioner did not file any application for setting aside the abatement which had already occurred. It is submitted by Mr. Nilamani that after expiry of the period of 90 days the appeal already abated. But Mr. Manglem, the learned Counsel for the Appellant-Petitioner has submitted in his reply that even though the Appellant-Petitioner has not filed any separate application for setting aside the abatement the petition which has been filed by the Appellant will show that he has also made a prayer for setting aside the abatement and bring the legal heirs of deceased Appellant No. 1 on record. The question which therefore poses for consideration is whether such an application for substitution c in be legally treated as a composite application for setting aside the abatement and bringing the legal representatives of the deceased on record by reasons of the fact that in the same application the Appellant-Petitioner also made a prayer for setting aside the abatement. In this respect reference may be made to the decision of AIR 1937 455 (Lahore) and Babaji Padhan v. Mst. Gurubara AIR 1902 Ori 94 . In the latter case it was held that an application made to bring the legal representatives of the deceased Defendant on record after the lime presented therefore by law and continue the proceedings should ordinarily he treated as an application to set aside the abatement of the suit as it is in substance an application under Order 21 Rule 9 of the Code. In this context decision of the Supreme Court in the case of Bhagwan Swaroop and Ors. Appellants v. Mool Chand and Ors. Respondents reported in Bhagwan Swaroop and Others Vs. Mool Chand and Others, may be referred to. In this, case a preliminary decree was passed after partition in a suit filed by Appellant against Respondents Nos. 1 and 2. During appeal Respondent No. 1 died and his legal representatives were not brought on record for more than 3 years. Afterwards an application was filed by Appellant under Order 22 Rule 4 and other application was filed by legal heirs of Respondent No. 1 under Order 1 Rule 10. The applications were rejected by the High Court and it was held that the appeal abated as a whole. But on appeal the Apex Court held:

That the order of High Court disclosed a hyper technical approach which if carried to end may result in miscarriage of justice. If the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in court. Undoubtedly, justice according to law; law to be administered to advance justice. The application of Appellant as well as that of legal representatives was allowable.

It will be apparent from the above except of the Supreme Court that the court will have to see that administration of justice is not thwarted by technical procedural lapse. Reverting to the facts of the case it may be recorded that the Respondent did not file any written objection or counter-affidavit challenging the grounds which the Appellant-Petitioner has set forth in his petition for substitution. That Smti. Malem Ningol Kshetrimayum Ongbi Thoibi Devi is the legal representative of deceased Appellant No. 1 is not disputed. Mr. H. Manglem Singh is the appointed counsel of both the Appellants it is he who filed this application. So, considering all the facts and circumstances, 1 am of opinion that such a composite application is also entertainable.

As a result of the conclusion recorded above, I allow the, petition for substitution and accordingly the Appellant No. 1 be substituted by her legal heir Smti Malem Ningol Kshetrimayum Ongbi Thoibi Devi, The Appellant-Petitioner is however to pay a cost of Rs. 200/- (Rupees two hundred only) to the Respondents.