Punjab State vs Jasbir Singh and Others

Dua, J.—These four appeals (Regular First Appeals Nos. 152, 153, 171 and 172 of 1957) and C. M No. 1855-C of 1963 in R. F. A. 172 of 1957 have been argued together and may be disposed of by one and the same judgment.

In R. F. A. No. 172 of 1957 preferred by the Punjab State against Jasbir Singh, Pritam Singh Brijmohan Singh, Daljit Singh, Bhan Singh and Bela Singh, the last mentioned Bela Singh died sometime in 1958. An application for bringing on record his legal representatives was filed in this Court in October, 1963, the application bearing the date 23rd October, 1903. Five persons were mentioned as legal representatives of the deceased. The explanation given for the delay was stated to be that the authorities were made aware of the death of Bela Singh on 22nd October 1963 when the Superintendent of the Deputy Commissioner''s office, Patiala, was told on telephone about it by the Personal Assistant to the Advocate General. The same information was repeated on 23rd October, 1963 by the Additional Advocate General to the Deputy Commissioner, Patiala, on telephone. Prior to this, the applicant, State of Punjab, had no information about the death. The delay in filing the application has been described not to be intentional. This application is supported by an affidavit of Darshan Singh, Naib Tehsildar, Recovery, Patiala.

This petition was opposed on behalf of the respondents on the ground that no valid reason has been disclosed for condoning the delay. In the counter-affidavit filed by Dharam Singh, it has been asserted that the petitioner-appellant is guilty of gross negligence and that Bela Singh was more than 90 years old at the time of his death and it was a proper case in which the authorities should have been more vigilant. It appeared later that Smt. Gobind Kaur, widow of Partap Singh, son of Bela Singh, who was also impleaded as one of the legal representatives had in fact died a couple of years earlier and her name was wrongly included in the list of the existing legal representatives of the deceased. On an application being made to this Court in November, 1963, on 5th December, 1963, we deleted her name from the array of respondents.

The learned counsel for the appellant-petitioner has been wholly unable to satisfy us about the reasons which would justify this Court in condoning the inordinate delay in approaching this Court for bringing on record the legal representatives of Bela Singh deceased. Under Article 177 of the Indian Limitation Act, the period of limitation for filing an application for bringing on record the legal representatives of a deceased respondent is 90 days computed from the date of the death of the deceased and under Article 171, the period of limitation for filing an application for setting aside an abatement is 60 days computed from the date of abatement. If no application is made for bringing on record the legal representatives of a deceased party, within the time limited by law, the appeal automatically abates as against the deceased. Order 22, Rule 4, C. P. C. The result, therefore, is that the appellant had only a maximum number of 150 days within which to approach this Court for setting aside the abatement and bringing on record the legal representatives of Bela Singh; but by virtue of Order 22, Rule 9(3), C. P. C, the provisions of Section 5, Limitation Act, are made applicable to applications under sub-rule (2) of this rule for setting aside abatements. Section 5, Limitation Act, empowers the Courts to admit applications to which it applies after the prescribed period on being satisfied that the applicant concerned had a sufficient cause for not making the application within such period. The State, as has been settled by high authority, is not entitled in this respect to any concession more than a private party, and there can scarcely be any question of construing the expression "sufficient cause" more liberally merely because the party in default is the Government. These provisions have been enacted with a view to advance the cause of justice and, therefore, on the circumstances of a given case the inherent disabilities of the party in default may, in my opinion, justifiably be given due weight. True it is, that in construing whether the petitioner has established sufficient cause for not applying for setting aside the abatement within time, the Court need not be over strict in expecting such proof of the suggested cause as it requires to enable it to uphold facts touching the merits of a controversy; but this clearly does not mean that the Court should readily accept whatever the petitioner alleges to explain away his default. I do not mean to lay down that the appellant has a duty to make regular enquiries from time to time about the health or existence of the opposite party; but at the same time the terminus a qua is clearly not the date of the appellant''s knowledge of the respondent''s death and mere late knowledge cannot by itself justify delayed application for setting aside the abatement, with the result that mere allegation that the petitioner did not come to know of the death of the opposite party is obviously insufficient. When confronted with this position, the appellant''s learned counsel had practically nothing to urge in support of this application which fails and is hereby dismissed.

The question then arises : Does the absence of the legal representatives of Bela Singh from the record result in the abatement of the relevant appeals in toto or in regard to Bela Singh''s claims alone ? On this aspect reference has been made to a judgment of the Supreme Court in The State of Punjab Vs. Nathu Ram, , and paragraph 7 of the judgment at p. 91 of the report has been specifically relied upon by Shri Doabia.

It is observed there as follows :

There has been no divergence between the Courts about the Court''s proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellants and the other decree holders or on the execution of the ultimate decree between them.

It is urged by Shri Doabia that in the case in hand there are virtually several decrees, though incorporated in one order.

As against this, the respondents'' learned counsel has referred us to Phuman v. The State of Punjab ILR 1963 (2) Punj. 442, and has also relied on the ratio of the decision in Nathu Ram''s case. Phuman''s case 2, it may be stated, does not appear to be of much assistance in the case in hand. The judgment in Nathu Ram''s case was given by the Supreme Court on appeal from the judgment of this Court in Province of East Punjab v. Labhu Ram (1955) 57 P.L.R. 495, and the appeal was dismissed. In that case a certain parcel of land belonging to two brothers jointly was acquired for military purposes. On the matter of compensation being referred to an arbitrator under Rule 10 of the Punjab Land Acquisition (Defence of India) Rules, 1943, a general award was given. The State Government appealed from the award during the tendency of which one of the brothers died and as his legal representatives were not brought on the record, the appeal abated as against him. It was held that as the appeal against the other brother alone could not proceed, the subject matter, for which the compensation had been awarded, being one and the same land, and it being not possible to make different assessments of compensation for the same parcel of land, the appeal in his absence was not properly constituted.

The legal position as emerging from the Supreme Court decision appears to be that, it is legally incorrect to call the appeal to have abated even against the existing respondent, for Order 22, Rule 4, C. P. C. in terms does not provide for any such abatement. The appeal can from the strictly legal point of view, as envisaged by our law of procedure, proceed against the parties to the appeal present on the record. The question which poses itself is : Can the Court proceed to determine the controversy between the existing parties on the record when the determination of the same controversy as between the appellant and one of the opposing parties has become final ? To put the question more simply : Could the State have appealed only against the existing respondents ? In Nathu Ram''s case, the award was joint in the sense that the value of the same parcel of land as against both the joint owners was determined. Variation in valuation in the award on appeal as regards one of them was considered to give rise to conflicting valuations of the same parcel of land and this was held to militate against the competency of the appeal Court to modify the joint award, for, the modified award was considered in those circumstances to be incapable of successful execution and, therefore, ineffective.

Is the position same or similar in the case in hand ? Can it be said that acceptance of the appeal in the present case will give rise to two absolutely contradictory awards relating to the same subject matter on the rolls of this Court ? The respondents'' learned counsel has tried to support his objection to the survival of the appeal against the surviving respondents by relying on paragraph 8 of the judgment in Nathu Ram''s case at p 91 of the report, where the Supreme Court described as incorrect, the view that in case of joint decree specifying the shares of the decree-holder respondent despite abatement of appeal against the deceased decree-holder, appeal against the other respondent can be suitably dealt with. That Court further observed that the abatement of appeal in such a case further means that the appellate Court cannot modify such a decree directly or indirectly.

Now the award in the instant case has not been shown on the present record by the respondents'' counsel to be joint in the sense in which it was joint in Nathu Ram''s case. It appears to me that the valuation of the parcel of land concerning the deceased would not be modified either directly or indirectly by the success of the appeal against the other claimants. I am, therefore, as at present advised, and on the arguments addressed at the bar, disinclined to hold that the appeals against the other respondents do not survive and that this Court cannot deal with the controversy between the parties before it.

Coming to the merits, the learned counsel for the appellant has contended that the learned District Judge was wrong in fixing the compensation of the land at the rate of Rs. 1000/- per bigha. In support of his challenge to the impugned award he has taken us through the evidence on the record and has also referred us to the impugned order. After reading the evidence and the impugned award, however, the counsel was unable to urge any substantial point in criticism of the impugned award. After considering the evidence, in my opinion, the rate of Rs. 1000/- per bigha is amply justified by the material on the record.

Shri Doabia referred us to a judgment of the Supreme Court in The The Special Land Acquisition Officer, Bangalore Vs. T. Adinarayan Setty, . and particular reliance was placed on paragraph 9 of the judgment at p. 432, where it is laid down that the function of the Court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification u/s 4(1), Land Acquisition Act. It has been contended that the original notification u/s 4 of the Act was made in August, 1954 and that the enquiry into the market value of the land must be confined to that date. It is, however, in evidence that the original notification being defective, a second one was issued in 1955. But in either case, it is not understood how this contention helps the appellants in support of the argument that the valuation fixed by the District Judge is excessive and the one fixed by the Collector more in accordance with the market rate at the relevant time. It is worth noting that before the Collector no data have been produced by either party to assist him in arriving at the true valuation of the land. Before the learned District Judge, the statement in the cross-examination of the Patwari clearly supports the learned Judge''s conclusion.

The learned Additional Advocate-General also attempted to re open issue No. 1 which, as is obvious from the impugned award, was not contested by the Government pleader before the learned District Judge. In my opinion, no sufficient ground has been shown as to why the appellant should be permitted to agitate that issue. However, even otherwise, it has not been made out how the claimants can be considered to have accepted the award so as to invalidate the reference at their instance. There is no material worth the name to which our attention has been drawn proving acquiescence or acceptance of the Collector''s award so as to stop the claimant from approaching the learned District Judge. The appeals of the State must, therefore be disallowed.

The claimant has equally failed to urge any cogent ground for enhancing the amount. The contention that the claimant''s land is better located than Bela Singh''s is too vague and unprecise for justifying a positive finding on valuation. His claim at Rs. 1,250/- per bigha as made on appeal is not substantiated and his reference to the mutation in favour of Shri G.L. Chopra regarding chahi land is also of no real assistance as no details in regard thereto are forthcoming on the record and indeed even in his appeal he is not claiming in accordance with the price disclosed in this mutation; it may be noticed that Shri G.L. Chopra''s transaction shows sale of 5 bighas of land for a sum of Rs. 20 000/.

For the foregoing reasons, I am unable to hold that the valuation fixed by the learned District Judge is by any means erroneous or unjust. It is conceded that all other appeals must fail on this conclusion. All the appeals thus fail and are dismissed with costs.

Jindra Lal, J.

I agree.