Smt. Kamlesh vs Tek Chand and Others

S.P. Mehrotra, J.—This writ petition has been filed by the Petitioner, inter alia, challenging the order dated 11.1.2001 (Annexure-6 to the writ petition) passed by learned First Addl. Civil Judge (Junior Division) Ghaziabad.

It appears that Original Suit No. 20 of 1984 was filed by one Tek Chand against Ram Bal and others. The said suit was dismissed by the judgment and order dated 6.12.1988 by VIth Addl. Munsif, Ghaziabad. Thereupon, the Plaintiff, Tek Chand (Respondent No. 1 herein) filed an appeal being Civil Appeal No. 198 of 1988. The said Civil Appeal No. 198 of 1988 was allowed by the learned II Ird Addl. Civil Judge, Ghaziabad, by his judgment and order dated 30.1.1991 whereby the judgment and order dated 6.12.1988 was set aside, and the matter was remanded for being decided afresh.

During the pendency of the suit after remand, it appears that Hemi, son of Raje (Defendant No. 8 in the suit) died, and an application dated 18.8.2000 (Annexure-3 to the writ petition) was filed on behalf of the Defendants in the suit, inter alia, stating that the said Hemi, son of Raje (Defendant No. 8 in the suit) had expired in the year 1997, and the said suit had abated.

Thereafter, an application dated 7.9.2000 under Order XXII, Rule 9 and Section 151 of the Code of CPC was filed on behalf of the Plaintiff in the suit. It was, inter alia, stated in the said application dated 7.9.2000 that Ram Pal (Defendant No. 5 in the suit) had expired, and the sole heir and legal representative Ram Bal was already on record as Defendant No. 1 in the said suit. It was, inter alia, further stated in the said application that Hemi, son of Raje (Defendant No. 8 in the said suit) had expired on 29.12.1997, and his heirs and legal representatives mentioned in the said application be substituted. The prayer for condonation of delay u/s 5 of the Limitation Act was also made in the said application. The said application was supported by an affidavit of Tek Chand (Plaintiff in the said suit) sworn on 7.9.2000. The said affidavit is part of Annexure-4 to the writ petition.

The objection dated 22.11.2000, supported by an affidavit (Annexure-5 to the writ petition) was filed on behalf of the Defendants against the said application dated 7.9.2000 filed on behalf of the Plaintiff in the suit.

By an order dated 11.1.2001, the learned Ist Addl. Civil Judge, (Junior Division) Ghaziabad, allowed the said substitution application filed on behalf of the Plaintiff, and rejected the objection filed on behalf of the Defendants in the suit. Thereafter, the Petitioner has filed this writ petition.

I have heard learned Counsel for the Petitioner. The impugned order was passed on 11.1.2001. This writ petition filed by the Petitioner is highly belated. Learned Counsel for the Petitioner submits that the explanation for delay is contained in paragraph No. 15 of the writ petition. I have perused paragraph 15 of the writ petition. The explanation contained in the said paragraph is totally vague and lacking in material particulars. The said paragraph does not contain any proper explanation for the delay. It merely says that the Petitioner is an illiterate poor widow and, therefore, she could not manage to file this writ petition within time, and only after making the necessary arrangement, she is filing this writ petition before this Court. Thus, the Petitioner has not been able to explain the inordinate delay in filing the writ petition. The petition is liable to be dismissed on the ground of laches.

However, even otherwise, having perused the impugned order, I do not find that the learned court below has committed any illegality in passing the same. The learned court below has rightly rejected the technical objection raised on behalf of the Defendants that there was no specific prayer for setting aside the abatement.

A perusal of the application dated 7.9.2000 (Annexure-4 to the writ petition) shows that the said application has specifically mentioned that the same was being filed under Order XXII, Rule 9 and Section 151 of the Code of Civil Procedure. In the said application and its supporting affidavit, it is, inter alia, stated that as the Defendant No. 8 had not been residing in the village at the time of his death, the Plaintiff could not come to know of the death of the Defendant No. 8, and that the counsel for the Defendants also did not inform regarding the death of the Defendant No. 8, and as such, steps for bringing on record the heirs and legal representatives of the Defendant No. 8 could not be taken within time, and that the delay in filing the substitution application be condoned, and the same be treated as within time.

Thus, having regard to the contents of the said application and its supporting affidavit, it is evident that the said application in substance is an application for setting aside abatement. Therefore, the objection raised on behalf of the Defendants regarding there being no prayer for setting aside abatement, has no force.

In Babaji Padhan Vs. Mst. Gurubara Padhani and Others, it was laid down as follows (paragraphs 4 and 5 of the said AIR):

On the Petitioner''s main point that no application for setting aside the abatement having been made the entire suit had abated, Mr. A. B. Ray, learned Counsel for the Plaintiff-opposite party, submitted that an application for substitution without prayer for setting aside abatement is maintainable. In support of his proposition he relied on certain decisions holding that an application made to bring the legal representatives of the deceased Defendant on record after the time prescribed therefore by law, should ordinarily be treated as an application to set aside the abatement of the suit which has taken place, though, it is not asserted that the delay was due to reasonable causes, and on proof of sufficient cause for delay the application should be granted; in case, where such an application is made after the death of a deceased party to bring his legal representatives on the record and continue the proceedings, the application is in substance an application to set aside the abatement under Order XXII, Rule 9, CPC and that the absence of a formal order of abatement is no obstacle thereto; that the Court has power to entertain such an application and decide whether the applicant was prevented by sufficient cause from continuing the proceeding, under Order XXII, Rule 9, Sub-rule (2) independently of Sub-rule (3) Kripa Ram v. Bhagat Chand AIR 1928 Lah 746 ; Lachmi Narain Vs. Muhammad Yusuf and Others,

Then, on the point whether there was sufficient cause for delay, it is a question of fact; setting aside abatement is in the discretion of the trial court and it should not ordinarily, as in the present case, be interfered with; that apart in the present case, the legal representatives of the deceased Defendant No. 3 have not appeared to contest their substitution in the suit.

(Emphasis supplied)

In Ningthoujam Ongbi Radhe Devi and Ors. v. Laisram Ningol Ningthoujam Ongbi Leikho Devi and Ors. AIR 1970 Man 70 it was laid down (paragraph 5 of the said AIR):

...There is, however, abundant authority for the proposition that substitution of the legal representatives without first setting aside the abatement would constitute a mere irregularity which does not vitiate the order. In other words, an application for substitution can legally be treated as a composite application for setting aside the abatement and bringing the representatives of the deceased party on record. In this respect reference may be made to the decisions in Diwan Chand v. Bhagwan Chand AIR 1937 Lah 455 and Babaji Padhan Vs. Mst. Gurubara Padhani and Others,

In Sri Ram Prasad Vs. The State Bank of Bikaner and Others, , it was laid down (paragraph 5 of the said AIR):

...Moreover, in a case where an applicant applies for condoning the delay and for bringing on record the legal representatives, a prayer of setting aside the abatement is implicit in the prayer for substitution.

In Bachan Ram and Others Vs. The Gram Panchayat Jonda and Others, , it was held as follows (paragraph 2 of the said AIR):

The surviving Plaintiffs as also the legal representatives of Harchand Singh deceased have filed this second appeal against the order of the Court of first appeal holding that the appeal had partially abated in respect of Harchand Singh''s land. It is the contention of the learned Counsel for the Appellants, Sri Dhillon, that the application for impleading the legal representatives of Harchand Singh had been made while the period of limitation of 60 days provided by Article 121 of the Limitation Act, 1963, had not expired and that the application should have been treated by the lower appellate court as an application for setting aside of the abatement which had automatically taken effect on the expiry of the period of 90 days allowed by Article 120, ibid. In support of this contention Sri Dhillon has relied upon Kirpa Ram v. Bhagat Chand AIR 1928 Lah 746, which had followed two earlier decisions in Badlu v. Mst. Naraini AIR 1924 Lah 424 and Ata-ur-Rahman v. Mushkur-un-Nisa AIR 1926 Lah 474. It was held that an application made to bring the legal representatives of the deceased-Defendant on record after the time prescribed therefore by law should ordinarily be treated as an application to set aside the abatement of the suit which has taken place even though it is not asserted that the delay was due to any reasonable cause. The evidence about the sufficient cause for the delay can be produced in the appellate court and all that is necessary is that the Court should feel satisfied that discretion should be exercised in favour of the party seeking the setting aside of the abatement.

(Emphasis supplied)

In Smt. Shakuntala Devi Vs. Banwari Lal and Others, , it was laid down as under (paragraphs 4 and 5 of the said AIR):

Learned Counsel appearing on behalf of the applicant has contended that the application made on the 9th July, 1962, for substituting the heirs and legal representatives of Respondent Banwari Lal implied a prayer for setting aside the abatement and permitting the proceedings to continue against the heirs and legal representatives sought to be brought on the record. In support of his contention, the learned Counsel again placed reliance on the decision in Lachmi Narain v. Muhammad Yusuf AIR 1920 All 284 (supra). He urged that the court below had without any legal justification distinguished that decision which was binding on him. He further placed reliance on the decision of the Orissa High Court in Babaji Padhan Vs. Mst. Gurubara Padhani and Others, The decision of this Court in Lachmi Narain Vs. Muhammad Yusuf and Others, and another decision of the Lahore High Court in Kirpa Ram v. Bhagat Chand AIR 1928 Lah 746 , were followed in this decision with approval by the Orissa High Court. I agree with the contention that the court below wrongly distinguished the decision of this Court in Lachmi Narain Vs. Muhammad Yusuf and Others, and held that the application, dated 9.7.1962, could be treated as an application for setting aside the abatement and for bringing on record the heirs and legal representatives of the deceased-Respondent Banwari Lal.

Learned Counsel appearing on behalf of the applicant further contended that merely because the application dated 18th March, 1964, praying for setting aside the abatement did not contain a formal prayer for condoning the delay did not bear the Court from treating it as an application u/s 5, Limitation Act and from taking into account the relevant material on record for the purpose of deciding as to whether the applicant had sufficient cause for condonation of delay in making the application for substitution and for applying for setting aside the abatement of the appeal. In support of the contention that a formal application u/s 5 of the Limitation Act is not necessary to enable the Court to decide whether delay deserves to be condoned or not learned Counsel appearing on behalf of the applicant has relied on the decision of the Punjab High Court in Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram, Ahmedabad and Others, wherein it was held (at page 646):

Merely because there was no written application filed by the Appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it. Procedure is meant for advancing and not for obstructing the cause of justice, and if the entire material is on the record, it cannot promote the ends of justice, if that material is ignored and the relief refused to the Appellant, merely because he had not claimed it by means of a formal application in writing or that a formal affidavit was not filed. The language of Section 5 also does not provide that an application in writing must be filed before relief under the said provision can be granted.

In the abovementioned decision, reliance was placed on the Division Bench decision of this Court in Mt. Kulsoomun Nissa and Another Vs. Noor Mohammad alias Sultan Haider and Another, . The submission made is supported by two decisions cited above and must consequently prevail.

In Kunhikayyumma and Another Vs. Union of India (UOI) and Others, , it was held as follows (paragraphs 6 and 12 of the said AIR):

That the Court should not attach undue importance to the frame of the petition, has been fairly established by a series of decisions touching that aspect. The lower appellate court has already referred to the decisions in Bachan Ram and Others Vs. The Gram Panchayat Jonda and Others, . The Punjab decision has considered earlier decisions on the point: Kirpa Ram v. Bhagat Chand AIR 1928 Lah 746, which in turn had followed the decisions in Badlu v. Mst. Naraini AIR 1924 Lah 124 and Ata-ur-Rahman v. Mushkur-un-Nisa AIR 1926 Lah 474. The gist of the decisions was summarized by Suri, J., in that decision in the following words:

It was held that an application made to bring the legal representatives of the deceased-Defendant on record after the time prescribed therefore by law should ordinarily be treated as an application to set aside the abatement of the suit which has taken place even though it is not asserted that the delay was due to any reasonable cause. The evidence about the sufficient cause for the delay can be produced in the appellate court and all that is necessary is that the Court should feel satisfied that discretion should be exercised in favour of the party seeking the setting aside of the abatement.

Following the decisions in Lachmi Narain Vs. Muhammad Yusuf and Others, , the Orissa High Court took the same view in Babaji Padhan Vs. Mst. Gurubara Padhani and Others, . Trivedi J., in Sri Ram Prasad Vs. The State Bank of Bikaner and Others, , observed:

...in a case where an applicant applies for condoning the delay and for bringing on record the legal representatives, a prayer of setting aside the abatement is implicit in the prayer for substitution.

AIR 1933 85 (Nagpur) , is yet another case accepting the above principle.

I am in agreement with the views so expressed in the aforesaid decisions.

The decision of the Supreme Court in Union of India (UOI) Vs. Ram Charan and Others, , on which reliance was placed by counsel for the Appellants, is not as absolute as may be thought of at first sight. No doubt, the insistence on there being sufficient cause for setting aside the abatement had been highlighted in that decision. However, a close reading of para 12 of the judgment, particularly the last sentence thereof, would point out that the position is not one of absolute inflexibility. That clearly is the effect of the following passage contained therein:

If no such facts are alleged, none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicant''s not continuing the suit by taking necessary steps within the period of limitation.

(Emphasis supplied)

In other words, even if an applicant does not allege or prove facts making out a sufficient reason for not making the application for bringing on record the legal representatives of the deceased within the stipulated time, the Court would not be powerless to render justice when it is satisfied that circumstances of the case are obviously such which would justify a finding of sufficient cause to be taken by the Court. The lower appellate court also has approached the facts of the case by adhering to such a principle, as will be evident from the extract in its judgment referred to in paragraph 4 (supra). The circumstances have been considered from that angle. The finding of sufficient cause has been reached on a proper application of the correct legal principle and an exhaustive consideration of the circumstances in the case. I am in full agreement with the approach and conclusion taken by the Court below on this aspect. There is no error whatever in the judgment of the Court below, much less a substantial error of law which alone would justify interference in second appeal.

(Emphasis supplied)

These decisions, thus, support the conclusion drawn above that it is the substance of the application and its supporting affidavit which should be examined. If examination of the substance of the application and its accompanying affidavit shows that the prayer for setting aside abatement is implicit therein, then it is not material that there is no explicit prayer for setting aside abatement.

The writ petition, thus, lacks merit and the same is liable to be dismissed.

In any case, on the facts and circumstances of the case, it is not a fit case for interference under Article 226 of the Constitution of India.

In view of the aforesaid discussion, the writ petition is dismissed.