Resham Singh And Anr vs Lrs Of Gurbux Singh And Ors

In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

The appellants have entered into an agreement with Gurbux Singh regarding 9 Bighas of land Chak 33 LLW A&B and out of 9 Bighas of land, sale deed was executed in respect of 6 Bighas, but as regarding to Killa No.16, 17 and 18 which was in possession of Gurbux Singh due to the Settlement Operation, this land was shown to be transferred in another revenue chak and also in the name of some other person. Regarding this 3 Bighas of land, sale deed could not be executed because the sale deed could have been executed only after correction in the revenue record by filing the application before the competent authority.

The controversy before this Court is that when Gurbux Singh died, the suit abated. Upon abatement of such suit, the appellants moved an application under Order 22 Rule 4 to take the legal representatives of Gurbux Singh, which was his wife Gujri, his daughter Amarjeet Kaur and Kuldeep Kaur on record.

Learned counsel for the appellant submits that the application under Order 22 Rule 4 CPC was sufficient to be considered as Order 22 Rule 4 CPC, Order 22 Rule 9 CPC and Section 5 of the Limitation Act and it should have been consolidated for the same relief even when the same was not expressed the called for. Para 2 being factual and para 5 being prayer of the application are relevant and thus, reproduced as under:-

"2- यह कि वादी गुरमेलसिंह प्रतिवादी का पता करने का इतला करवाने के लिये ओकड़ी तहसील गंगानगर गया तो सायल को वहां गांव में जाकर मालुम हुआ कि प्रतिवादी गुरबक्षसिंह का देहान्त 23-3-99 को हो गया है यह जानकारी वादी को दिनांक 23-7-99 को हुई अब दावा में आगे तारीख 28-10-99 मुकरर्र है। वादी के साथ महेन्द्रसिंह पुत्र अर्जुनसिंह रामगढिया सा. फतेवाली ढाणी भी पता करने गया था हल्फनामें पेश है। 5- यह कि दर. न्याय शुल्क पर पेश कर निवेदन है कि गुरबक्षसिंह मृतक के वारसान 1-मु. गुजरी पत्नी 2-मु. अमरजीतकौर पुत्री 3-मु. कुलदीप कौर पुत्रीयान जाति रामगढिया सा. ओड़की तहसील गंगानगर को फरीके मुकदमा बनाया जावे। दर. तारीख ईल्म जानकारी 23-7-99 से अन्दर मियाद है। "

Learned counsel for the appellant has relied upon the judgment rendered by this Hon'ble Court in Mahender Vs. LRs. of Rawata Ram & Anr. reported in 2009 (2) DNJ (Raj.) 623 whereby this Hon'ble Court had considered the setting aside the abatement without going into the technicalities even when a specific application under order 22 Rule 9 and Section 5 Limitation Act were not preferred.

Learned counsel for the appellants has also relied upon the judgment rendered by Hon'ble Apex Court in Mithailal Dalsangar Singh & Ors. Vs. Annabai Devram Kini & Ors. reported in (2003) 10 SCC 691, relevant portion reads as under :-

"In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abateed, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

The courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub-rule(l) of Rule (9) of Order 22 and of Section 5 of the Indian Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction."

Learned counsel for the appellants has also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Laxmi Devi Vs. The Civil Judge (Senior Division) & Ors. reported in 2008 (2) ILR (Raj.) 419.

Learned counsel for the appellants has also relied upon the judgment rendered by Hon'ble Apex Court in K. Rudrappa Vs. Shivappa (Appeal No.5568/2004) reported in 2004 Supp(3) SCR 953, relevant portion reads as under :-

"Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildar. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hyper- technical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law. "

Learned counsel for the appellants has also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Hari Ram Vs. The Additional District Judge & Ors., decided on 26.05.2008, relevant portion reads as under :-

"10.The Hon'ble Supreme Court, in above referred cases, considered the scope of Order 22 Rule 3 and Section 151, of the Code of Civil Procedure, 1908, wherein an application under Order 22 Rule 3, C.P.C. was filed after expiry of period of limitation without any separate application under Order 22 Rule 9, C.P.C., and held that such technical objections should not come in doing full and complete justice between the parties. Para No. 10 of the judgment of the Hon'ble Supreme Court in case of of K Rudrappa v. Shivappa (Supra) is reproduced as under :

Having heard learned Counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District Court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildar. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994, when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned Counsel for the appellant is right in submitting that a hypertechnical view ought to have been taken by the District Court in rejecting the application inter alia observing that no prayer, for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its (6 of 8) [CMA-233/2000] own merits. By not doing so, even the High Court has also not acted according to law."

Learned counsel for the appellants through these judgments has effectively tried to point out that the question of setting aside the abatement has to be viewed liberally by this Court and any technical approach shall close the doors of justice for the appellants permanently, which would be detrimental to the rights of the appellants.

Learned counsel for the respondent on the one hand agrees that a liberal view ought to be taken to set aside the abatement but points out that this is a peculiar case where no prayer for setting aside the abatement has been made or even the application under Section 5 of the Limitation Act has not been preferred. It is also contended that the application preferred under Order 22 Rule 4 CPC merely seeks the legal heirs to be taken on record, and thus, ought not to be considered.

Counsel for the respondent has relied upon the judgment rendered by Hon'ble Apex Court in Union of India and Ram Charan & Ors. reported in AIR 1964 SC 215, which is a Full Bench judgment, relevant portion reads as follows:-

"In the present case, the appellant had adopted a very wrong attitude from the very beginning. In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge. Why he did not do so is difficult to imagine if. he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is (7 of 8) [CMA-233/2000] not on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellant's knowledge of the death of the respondent. The appellant's case seems to have been that no abatement had actually taken place as the limitation started from February 3, 1958, when the appellant's officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does not provide the limitation to start from the date of the appellant's knowledge thereof. The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act. In these circumstances, the High Court cannot be said to have taken an erroneous view about the appellant's not establishing sufficient ground for not making an application to bring on record the representatives of the deceased respondent within time or for not making an application to set aside the abatement within time. "

After hearing counsel for the parties and perusing the record of the case alongwith precedent law, this Court is of the opinion that though repeatedly various Courts have taken very liberal approach in setting aside the abatement but if when called for and also taking the rigorous of the procedural law at their bottom line to make the adjudication in law possible but in the peculiar given facts of the present case when the suit itself was of 1998 and the parties might have reconciled mentally to the fact regarding the rights as existed at that time and reopening of the whole dispute (8 of 8) [CMA-233/2000] pertaining to the specific relief act may not be in the best interest of justice.

This Court is of the opinion that the Full Bench judgment amongst the precedent law cited i.e. Union of India Vs. Ram Charan (supra) carries the highest strength of precedent law, and thus, to maintain the judicial discipline, the same ought to be followed by this Court.

The delayed adjudication at this stage resulting into reopening of the 22 years old dispute may not be conducive to either of the parties. It is also noted by this Court that the prayer for setting aside the abatement or a specific application under Order 22 Rule 9 CPC or even Section 5 of the Limitation Act were admittedly not preferred. Construing Order 22 Rule 4 CPC as a wholesome application as interpreted by this Court in the judgment of Mahender & Ors (supra) would have been possible only if the dispute was of absolute right having already been accrued in favour of the plaintiff whereas in this case it was a right which might have accrued to the present appellants.

Thus, while following the judgment of Union of India Vs. Ram Charan (Supra), the present appeal is dismissed.