Shankri and Others vs Som Nath and Others

This judgment will dispose of R.S.A. No. 191 of 1977 and R.S.A. No. 192 of 1977 as common question of law is involved in both these appeals.

The facts of R.S.A. No. 192 of 1977 are that the plaintiff-appellants filed a suit for possession by way of redemption of land measuring 49 Kanals 14 Marlas as described in the heading of the plaint. 70 Kanals 10 Marlas of land was owned and possessed by Lachhman s/o Chhanga, resident of Kheri, Tehsil Anandpur Sahib. Lachhman mortgaged this land with Pohi Lal son of Ganga Ram, resident of Kiratpur Sahib, for a sum of Rs. 9000/- vide mortgage-deed dt 7-5-1921. Effect to this mortgage was given in the revenue record vide mutation No. 332. As per terms and conditions of the mortgage the same was liable to be redeemed on payment of Rs. 9000/-. Lachhman, the original mortgagor died and the plaintiff appellants being his legal heirs succeeded him. Pohi Lal, the original mortgagee also died and he was succeeded by defendants Nos. 1 to 4 and Jugal Kishore, his son, who died subsequent to the death of Pohi Lal and was succeeded by the remaining defendants. It was further alleged in the suit that consolidation of holdings took place in the village and for the land mortgaged, new Khasra Numbers were given, the possession of which by redemption of mortgage, the present suit was filed.

In R.S.A. No. 191 of 1977, the suit was filed on 10-12-1974. The parties locked in litigation in this suit are again the heirs of Lachhman as plaintiffs and the heirs of Pohi Lal as defendants. The facts are, however, different. Land measuring 22 Kanals 8 Marlas as described in the plaint was owned and possessed by Lachhman aforesaid, in village Kheri, Police Station Nurpur Bedi. He owed some money to Sawan son of Kura of village Jatewal. Sawan brought a suit against Lachhman for recovery of the amount. During the pendency of that suit, land measuring 7 Kanals bearing Killa No. 1916/1171 was mortgaged with possession for a sum of Rs. 607.8 annas vide order of the Court dt 8/13-6-1925 by Lachhman with Sadhu son of Rakhu, resident of Lakhno vide registered deed dt. 17-6-1922. Later on, vide registered mortgage deed dt 30-1-1923 Lachhman mortgaged land measuring 22 Kanals 8 Marlas as detailed in the plaint along with Khasra Numbers 1916/1171 and 1172 for a sum of Rs. 1000/- with Pohi Lal son of Ganga Ram, resident of Kiratpur Sahib. Pohi Lal mortgagee did not make payment of the amount which subsisted as a charge being mortgage amount of two Khasra numbers payable to Sadhu and Sawan mortgagees. Sawan son of Kura, mortgagee sold his mortgagee rights to Kirpa son of Nihal Chand, of Nurpur Bedi on 4-8-1938 in respect of Khasra No. 1916/1171. Kirpa mortgagee died and was succeeded by his son Bhagat Ram and other heirs. Khasra No. 1916/1171 which was mortgaged with Sawan by Lachhman and the mortgagee rights of which were later transferred by Sawan to Kirpa were got redeemed by Lachhman on 9-6-1947. As Lachhman had already mortgaged this Khasra number including the land detailed in the plaint with Pohi Lal vide mortgage deed dt 30-1-1923, so after its redemption by Lachhman, Pohi Lal brought a suit for possession of this piece of land without payment on the ground that though the same had been got redeemed by Lachhman, still he, as the mortgagee, was entitled to its possession. This suit was decreed in favour of Pohu Lal on 20-10-1948 and thus Pohu Lal entered into possession of the land measuring 22 Kanals 8 Marlas as detailed in the heading of the plaint only on payment of Rs. 600/-. The plaintiffs being the heirs of Lachhman filed suit against defendants who were the heirs of Pohu Lal for possession by way of redemption of the land measuring 12 Kanals 2 Marlas as described in the heading of the plaint and as entered in the Jamabandi for the year 1964-65 situated on village Kheri, Had Bast No. 393, on payment of Rs. 600/- or whatever amount of mortgage is proved in the Court.

For the disposal of the present Regular Second Appeals, it is not necessary to refer to the defence taken by the defendants in both the suits. It is, however, worth mentioning that Dev alias Devinder Kumar one of the defendants in both the suits died during their pendency. An application was moved by the defendants in each of the two suits that Devinder Kumar had died on 6-12-1973. However, neither the place of his death was mentioned nor any death certificate was produced. It was contended in the application that since the plaintiffs did not bring on record the legal heirs of the deceased defendant well within limitation, the two suits had abated. It is worth mentioning here that the applications were moved by the defendants more than seven months after the death of the deceased defendants. During the period of seven months, Som Nath as general attorney of all the defendants including the deceased defendants had been appearing in Court attending to the proceedings of the suits, but never brought out on the record the fact that Devinder Kumar had died. The plaintiffs moved an application in each of the two suits on 21-11-1974 for setting aside of the abatement and for bringing on record the legal representatives of Devinder Kumar, the deceased defendant. The defendants opposed this application alleging that the plaintiffs had not been vigilant; that there was no sufficient cause for condoning the delay, that the suit had already abated; and that the applications being barred by time should be dismissed. Sub-Judge I class, Anadpur Sahib, before whom both the suits were pending, framed the following issues on the application moved by the plaintiffs:--

(1) whether there is sufficient cause for setting aside the abatement,

(2) whether the application is within time, and

(3) whether there is any ground for condoning the limitation.

The learned Sub-Judge I Class after perusing evidence and hearing the parties vide order dt 10-12-1974 concluded that there was no sufficient cause for setting aside the abatement; that the applications were barred by time and that there was no ground for condoning the delay; and dismissed both the suits having abated. The plaintiffs thereon filed two separate appeals from the aforesaid order which were dismissed by the learned Additional District Judge, Ropar vide judgment dt 29-12-1976, which have been challenged by the plaintiff-appellants through the present appeals.

I have heard the learned counsel for the parties at length. I find that the appellants had put forward, inter alia, the following grounds to establish their inability to file applications for bringing on record the legal heirs of Devinder Kumar, the deceased defendant with limitation:--

(a) Devinder Kumar defendant was proceeded against ex parte as he had failed to appear in the Court despite substituted service;

(b) no address of the said defendant was available to the plaintiffs other than that of village Kiratpur Sahib, Tehsil Anandpur Sahib;

(c) the said defendant died while he was living at some distant place away from his native village;

(d) even the defendants in their application praying for dismissal of the suit as having abated, did not disclose the place of the death of Devinder Kumar; and

(e) the ignorance about the death was not due to want of any reasonable diligence on the part of the plaintiffs. They did not know the whereabouts of the deceased defendant nor have they been able to attain knowledge of the place where Devinder Kumar died even till the date of their application.

The learned counsel for the appellants also pointed out that in spite of the fact that Som Nath, the general attorney of the defendants was appearing in Court after 6-12-1973, he withheld the factum of the death of Devinder Kumar and never brought it to the notice of the Court or the plaintiffs till the period for filling an application for bringing on record his legal representatives had expired. He accordingly contends that the Courts below were not right in their conclusion that there was no sufficient cause for condoning the delay in filing the application by the plaintiffs and for setting aside the abatement.

The learned counsel for the respondent on the other hand has placed reliance on Hardial Singh, v. Bagga Singh, AIR 1972 Punj & Har 343, The State of Punjab Vs. Nathu Ram, , Swaran Singh Puran Singh and Another Vs. Ramditta Badhawa (Dead) and Others, and Babu Sukhram Singh Vs. Ram Dular Singh and Others, , to contend that the grounds enumerated above do not make out a sufficient cause for condonation of delay, and by abatement of the suit a valuable right had accrued to the defendants which could not be lightly taken away.

Having considered the rival contentions of the learned counsel I am of the firm view that these appeals must succeed. As held by this Court in Karam Singh, v. Manak Singh 1976 Cur LJ (Civ) 388 there is no magic formula for determining whether there is sufficient cause for condoning the delay in a particular case or not. While determining this matter the Court is expected to take into account a variety of considerations, the foremost consideration being the interests of justice. It was experienced that the provisions of O. 22 R. 4, Civil P.C. before substitution of Sub-rule (3) by this Court with effect from 11-4-1975 were extremely rigid. The duty cast on the plaintiff to bring on record the legal representatives of a defendant who died during the pendency of the suit within the prescribed limitation, was not considered workable and was resulting in injustice to the plaintiff. Proceedings in many suits abated because the plaintiff therein could not, for want of knowledge of the death of the defendant or otherwise, apply for bringing on record his legal representatives.

The amendment which was brought into force by this Court on 11-4-1975 provided in sub-rule (3) of O. 22 R. 4 as under:--

"Where within the time limited by law no application is made under sub-rule (1) the suit shall not abate as against the deceased-defendant and judgment be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

This change in law was further reaffirmed when the Civil P.C. was amended by Parliament by the CPC (Amendment) Act, 1976. The amended provision of Order 22, Rule 4(3) no longer casts any duty on the plaintiff to bring on record the legal representatives of a defendant who dies during the pendency of the suit. This revolutionary change in the law of procedure cannot be ignored while deciding the present appeals. The appellants cannot be denied their right to seek justice through the suits instituted by them simply because one of the defendants died during the pendency of the suit of which conceivably the plaintiffs could not gain knowledge. Even the defendants actively concealed the factum of the death of the defendant so as to allow the suit to abate and defeat the defendants (plaintiff?) on this technical ground.

The recent trend of the Supreme Court''s judgment with regard to the abatement of suits is also to be kept in view. In Bhagwan Swaroop and Others Vs. Mool Chand and Others, it was observed:--

"It is true when a specific provision is made as provided in O. 22, R. 4, a resort to the general provision like Order 1, Rule 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. Code of Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up."

The above view of the Supreme Court has been followed in Sital Prasad Saxena (Dead) by Lrs. Vs. Union of India (UOI) and Others, , where, inter alia, it has been observed as under:--

"The second error was 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."

While allowing C.A. No. 1078 of 1978 (Ram Chander and other v. Onkar and others) on July 17, 1978 the Supreme Court once against observed as under:--

"We consider that the necessary averments under O. 22 R. 4 are set out in the application made by the legal representatives who claim the property in dispute under a will. There is some negligence but the panacea for such remissness of a litigant is heavy costs."

In view of the above position of law I am of the view that the plaintiff-appellants should not be penalised for delay in filing the application under O. 22, R. 4. Civil P.C. for bringing on record the legal representatives of Devinder Kumar deceased defendant so as to defeat their rights. The defendants can be well compensated for whatever delay or remissness is there on the part of the plaintiff appellants by burdening them with costs.

I, therefore, allow these appeals set aside the judgment and decree of the Courts below. The plaintiff-appellants shall pay Rs. 500/- as costs to the defendant-respondents in respect of each of the two appeals. The learned trial Court shall restore both then suits, bring on record the legal representatives of Shri Dev alias Devinder Kumar, deceased defendants as prayed for by the plaintiffs through their application under O. 22, R. 4. Civil P.C. and then try the suits on merits and decide the same in accordance with law. The parties through their counsel are directed to appear in the Court of Sub-Judge I Class, Anadpur Sahib on Jan. 15, 1986.

Appeal allowed.