Shri Banarsi Dass Ahluwalia vs Shri Atta Mohammad Khan and others

Rajendra Nath Mittal, J.—This judgment shall dispose of C.M. Nos. 1003/C1 and 1004 C1 of 1975 and R.F.A. No. 2 of 1967. In the former application, a prayer has been made for condonation of delay in filing the latter application for impleading the legal representatives of Atta Mohd Khan, respondent No. 1 and Shamas-ud-Din, respondent No 2 who died on December 4, 1974 and July 9, 1972 respectively. The detailed facts have been given in C.M. No. 1004-C1 of 1975. It is stated therein that Shamas-ud-Din, respondent No. 2 and Atta Mohammad Khan respondent No. 1, died on July 9, 1972 and December 4, 1975, respectively. The former died issue less and without leaving any widow and the latter left behind Naneh Khan. Chhutan Khan and Aish Mohd. sons. It is also stated that an application was made on July 1, 1975, praying that their legal representatives be brought on the record, but the said application was sat dismissed as withdrawn as certain facts were not correctly recorded therein.

It is further stated that the said respondents left two wills in respect of their entire movable and immovable property in favour of Naneh Khan, Chhutan Khan and Aish Mohd, sons of Shamas-ud-Din. Consequently it is prayed that they may be brought on record as legal representatives of both the deceased.

The cause of the delay which is given by the petitioner in filing the application on July 20/22, 1975, is that he had been out of touch with the respondents as he did not visit their village, and he also did not come in contact with any body knowing their whereabouts till June, 1975. It is further alleged that the petitioner had been seriously ill for a long time and even could not attend to his business affairs. He, it is also stated spent most of his time at Bastar (Madhya Pradesh) and other places in Uttar Pradesh where he had taken certain contract works and was involved in a serious litigation due to the accidental deaths of certain labourers. In the circumstances the petitioner has prayed that the delay in riling the application be condoned.

The legal representatives of the deceased have contested the application and inter alia pleaded that the petitioner fully knew about the death of the respondents and was well aware about the events which took place in the village off and on. The other allegations of the petitioner, except that they are the legal representatives of the deceased, have been denied by them.

The first question that arises for determination is whether there are sufficient reasons for condonation of delay in filing C.M. No. 1004-CI of 1975. It is not disputed that Shamas-ud-Din died on July 9, 1.972 and Atta Mohammad Khan, on December 4, 1974. According to the petitioner, he came to know about their death in the first week of June, 1975. Thereafter he filed Civil Miscellaneous No. 1005-CI of 1975, which was returned to the petitioner on July 2, 1975, with two office objections firstly that the application was barred by time and an application for condonation of delay should be filed and secondly, that power of attorney was not forthcoming. It was directed that the same be filed within a week. The application was refilled on July 22, 1975 along with two other Civil Miscellaneous applications as mentioned above, after meeting the objections. It was stated in the Court by the counsel in C.M. No. 1095-C1 of 1975 that a new application under Order 22, rule 4, had been filed and it may be dismissed as withdrawn. Consequently it was dismissed as such.

It will be proper to mention that in Miscellaneous No. 1005-C1, it was stated inter alia by the petitioner that enquiries made in village Ranhera Khera, Tehsil Ballabgarh, District Gurgaon, revealed that Shamas-ud-Din respondent No. 2, had died on July 9, 1972 without leaving any widow or son while Atta Mohd. Khan respondent No. 1, had died on December 4, 1974, leaving behind Naneh Khan, Chhutan Khan and Aish Mohd. sons who were his sole legal representatives. It is further stated that as Shamas-ud-Din died without any widow or children of his own, Atta Mohammed Khan, who was his real brother succeeded to his property and as he was already on record, there could be no abatement upon the death of Shamas-ud-Din, on July 9, 1972. According to the petitioner, the death of Atta Mohammad Khan on 4th December 1974, necessitated his sons being brought on the record. The other facts stated in the application are similar as have been given in the above applications.

From the perusal of the aforesaid facts, it is clear that the petitioner filed the application after more than 150 days of the death of the respondents ft is also an established principle of law that it is the duty of the appellant to bring on record the legal representatives of the respondent who dies during the pendency of the appeal, within the period of 90 days and if he fails to do so, the appeal abates. In that eventuality the appellant has to apply for setting aside the abatement within a period of 60 days. The abatement shall be set aside by the Court if sufficient cause is shown for not making the application for bringing the legal representatives on the record within a period of 90 days. If a period 50 days expires after the death of the respondent the appellant has further to satisfy the Court that there were circumstances in existence which justified condonation of delay u/s 5 of the Limitation Act. Ignorance of the death of a respondent is not a sufficient cause for setting aside the abatement. (See F. Dittu Raw Evedan v. Om Press Co. Ltd. (1960) 62 P.L.R. 133) While construing sufficient cause, Tek Chand, J., speaking for the Full Bench in F. Dittu Ram Evedans case observed as follows :

In construing the expression ''sufficient cause'', the existence or otherwise, of negligence of the applicant is always a governing factor, and this is because of the omission to perform a duty cast upon him by law. If the applicant has been prevented from making an application due to circumstances beyond his control or despite reasonable diligence, the Courts in their desire to do substantial Justice do ordinarily condone delay. It is true that it will be an impossible test if the applicant were required to keep him self informed from day to day as to whether the respondent was dead or alive. On the other extreme will be the case, where ignorance of death taken by itself should be considered a sufficient cause for setting aside abatement. The Court is entitled to know the cause of ignorance before determining whether such ignorance should be deemed to be a good cause for setting aside abatement in the circumstances of a particular case.

......before ignorance of death can be deemed to be a good ground, there must exist good grounds for ignorance not attributable to negligence. When law imposes an obligation on a person to bring legal representatives of deceased opponent on the record, within the prescribed period, mere want of knowledge of death, will be insufficient to secure him against consequences of abatement of his suit or appeal ; he has further to show absence of want of care. When reasonable vigilance is a duty, unqualified ignorance cannot be deemed venial. Want of information may be overlooked if want was not induced by neglectful indifference or blame-worthy remissness. Allowing oneself to remain in the dark cannot be treated as a persuasive ground for condonation of delay.

Abatement results in interruption of the suit, suspending its progress untill new parties are brought before the Court, and if this is not done within the proper time or the Court does not exercise its discretion in extending the time, the suit comes to an end for good. The law, therefore, imposes an obligation upon the party seeking resuscitation of his action after the lapse of the period of limitation to furnish grounds justifying condonation of the delay.

The above case has been noticed by the Supreme Court in Union of India (UOI) Vs. Ram Charan and Others, . In that case the respondent had died on July 21, 1957. The appellant made an application for bringing on record the legal representatives of the deceased respondent, on March 17, 1958. The reason given for filing the application beyond the period of limitation, was that he came to know about the death of the respondent on February 3, 1958. The application was rejected by the High Court and the appeal was dismissed as abated. The Union of India went up in appeal to the Supreme Court which was dismissed by it. The relevant observations of the Supreme Court are as follows:--

There is no question of construing the expression ''sufficient cause'' liberally either because the party in default is the Government or 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 overstrict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the 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, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinise 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 mean that the mere fact of the appellant''s coming to know of the respondent''s death belatedly will, by itself, justify his application for setting aside the abatement. That is not the law. Rule 9 of Order XXII of the Code requires 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 of the death of the opposite party is not sufficient. He had to state reasons which according to him, led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, especially when She correctness of those reasons is challenged by the legal representatives of the deceased who have secured valuable right on the abatement of the suit. It is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reason can be challenged by the other party. 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.

In the present case, the delay in making the application for impleading the legal representatives of Shamas-ud-Din, of about three years, and that of Atta Mohd. Khan, of more than six months has not been properly explained by the petitioner. It was for the petitioner to explain every day of delay u/s 5 of the Limitation Act in filing the application. He not to speak of explaining the delay from the date of death of the deceased respondents even could not properly explain the delay from the first week of June, 1975, when it is alleged by him that he came to know about their death, till the filing of the applications. He did not mention the names of the persons from whom he came to know about the death of the respondents. In order to scrutinise whether the petitioner was giving the cause of delay correctly, it was necessary for him to mention persons from whom he came to know about the death of the respondents. He should have further stated that how and from what sources he made inquiries regarding the legal representatives of the respondents. The applications filed by the petitioner are absolutely vague. In Civil Miscellaneous No. 1004/Cl and 1005/C1 of 1976, he gave different legal representatives of the deceased. In CM. No. 1005/C 1 he mentioned that Atta Moh''d left behind Naneh Khan, Chhutan Khan, and Aish Moh''d, son''s whereas in C.M. No. 1104/C1, mentioned that Shamas-ud-Din left the aforesaid sons. In case enquiries had been made properly in the village of the respondents it is unimaginable that the he would not have come to know as to which of the two respondents had left the sons and who were the legal representatives. It is alleged by the petitioner that in November, 1974, there were certain proceedings under the Indian Succession Act and from those proceedings he found out that two wills were executed on December 3, 1976 by the respondents whereby they left their immovable property to Naneh Khan, Chhutan Khan and Aish Moh''d., sons of Shamas-ud-Din. Again he has not stated that from whom he came to know about the proceedings under the Indian Succession Act and when and how he inspected the records. From the aforesaid circumstances it appears that the petitioner did not pay any attention at the time of making the enquiries.

The other reasons for not making the enquiries given by the petitioner is that he suffered from serious illness for a long time and remained away from the business affairs and that most of the time he spent in Bastar in Madhaya Pradesh and other places in Uttar Pradesh where he had his contract works. Those averments, to my mind, are again vague. He has not given the dates when he took the contract works and from what date to what date he remained in Bastar. He has also mot given the dates of his illness and recovery from it. I have already referred to the observations of the Full Bench and the Supreme Court. It has been specifically observed by the Supreme Court that the mere fact of the appellant''s coming to know of the respondents'' death belatedly will not, by itself, justify his application for setting aside the abatement. The petitioner has further to show absence of want of care on his part.

It is also surprising that in spite of the fact that he came to know about the death of the respondents in the first week of June, 1975 even according to his own version, still he could not find out their legal representatives correctly till the first week of July, 1975, when he made the first application. All these facts show that it cannot be held that he acted with due care in conducting the present appeal. It is for the petitioner to give reasons to the satisfaction of the Court which led to his not knowing the death of the respondents ''and filing the application belatedly for setting aside the abatement. He, however, failed to do so. The Civil Miscellaneous applications are, therefore, liable to be dismissed. In view of the fact that the appeal has already abated and there are no sufficient grounds for setting aside the abatement, it is also liable to be dismissed as having abated.

For the reasons recorded above, I dismiss the Civil Miscellaneous applications as well as the appeal, with no order as to costs.