Surajkund Temple Idol vs Shri Hari Kishan etc.

C.R. Thakur, J.—In the Civil Suit. No. 9/70, Shri Had Kishan Dyalu, Defendant No. 1 died on 19-1-1972, leaving behind his legal representatives as mentioned in the application. The Plaintiff filed O.M.P. No. 37 on the 18th of April, 1972, for bringing the legal representatives on the record. This application was returned on the same day as it was not accompanied with an affidavit. It was ordered to be re-filed within four days. The Petitioner filed the same duly accompanied with an affidavit on 11-5-1972.

This application was opposed by the Defendants on the ground that it was barred by time having been filed on the 11th May, 1972, and that there was no sufficient cause pleaded much less proved for making an application at a belated stage. Further it was contended that the application having been presented after the expiry of the limitation, there being no prayer for setting aside the abatement, the application was liable to be dismissed.

On 5-9-1972, the Plaintiffs filed O.P.M. 109, purporting to be under Order 22, Rules 4, 9 and Section 151 of the CPC read with Section 5 of the Limitation Act for condonation of the delay in filing the affidavit and for setting aside the abatement, if any. This application was opposed.

On the pleadings of the parties, the following issues were settled:

Is there sufficient cause for condonation of the delay in making the application for setting aside the abatement? OPA.

Whether OMP No. 109 of 1972 is within time? OPA.

Whether the first application was a legal and a proper application? OPA.

Relief.

The Plaintiff examined two witnesses in support of the issues and my findings on these issues are as under."- Issue No. 3:

The Defendant No. 1 died on the 19th January, 1972 and the application OMP 37 had first been presented by the Plaintiffs in the Court on 18-4-1972. This application was undoubtedly within time. The application was returned to the Petitioner because it was not accompanied with an affidavit and he was directed to re-file the application with ah affidavit within four days. The Petitioner did not re-file the same within the period granted to him. It was re-filed on 11th May, 1972. The submission made by the learned Counsel for the Defendants is that the valid application was filed only on 11-5-1972, when time had run out and that it was barred by time. In so far as the first application was concerned it was not valid application not being accompanied by an affidavit. The Plaintiff-Petitioner has not filed any application u/s 5 of the Indian Limitation Act to condone the delay in filing the application after expiry of 90 days. The submission made by the learned Counsel for the Petitioner is that the first application was valid and that the non-filing of the affidavit with the same was a mere irregularity which could be cured. The application which had been filed by him on the 18th was not legally invalid and he has referred mc to the Delhi High Court (Original Side) Rules, 1967 and has also relied on a few authorities in that behalf.

On the contrary, the submission made by the learned Counsel for the Respondent is that the application not having been accompanied by an affidavit was no application in law and that the same having been returned should have been filed within the time granted to the Petitioner to re-file the same, but, instead he filed the same only on the 11th May, 1972, when the time had run out and the appeal had abated, and that he did not make any application for condonation of the delay in filing the first application.

Rule 19 of Chapter I of the Delhi High Court (Original Side) Rules, 1967 hereinafter called the Rules of 1967) states that except to the extent otherwise provided in these rules, the provisions of the CPC shall apply to all proceedings on the original side. Chapter IX of the Rules of 1967 deals with the interlocutory applications. Rule 2(c) states that the application shall be supported by an affidavit stating clearly the grounds and the facts on which the application is based. There can be no denying the fact that the object of the affidavit is to testify to the facts mentioned in the application either on the persona] knowledge of the Applicant-Dependent or on the information derived or to his belief. The learned Counsel for the Petitioner has also invited reference to Rule 3 of Chapter IX and according to him under Clause (iv) of Rule 3, the non filing of an affidavit in support of an application was a mere irregularity. But reading Rule 3 as a whole it would appear that it does not apply to the affidavits which are to accompany the application to be filed. It deals only with the affidavits, etc. to the counter-affidavits, and which may be filed by leave of the Court.

Further, the Punjab High Court Rules and Orders, Volume V, Chapter I-C has also been relied upon. Rule 5 of Chapter I-C deals with the application to bring on record the legal representatives of the parties. Rule 6 deals with the application for setting aside the abatement or dismissal. Rule 7 says that every application of the kind mentioned in Rules 5 and 6 of these rules and every application under Order XXII, Rule 11) of the CPC to make the Petitioner or some other person an additional or substituted party in a suit or appeal, shall, as to the allegations of tact contained in such application, be verified by affidavit. From the reading of the Rules of 1967, which are applicable to Himachal Pradesh High Court (on the original side) and the Punjab High Court Rules and Orders, the only conclusion that can be deduced is that the rules are mandatory and not directory. The non-observance of these rules would render the application invalid. The rules enjoin an affidavit to be filed in support of the application and the non-observance thereof will necessarily mean that there is no application before the Court.

In Mahanth Ram Das Vs. Ganga Das, relied upon by the learned Counsel for the Petitioner the Court had passed a preemptory order fixing the period for payment of deficit court-fee and the Appellant made an application for extension of time before the time fixed had run out, but the application came up for hearing before a Division Bench after the period had run out. It was in view of this stand that it was held that the High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment. This authority, in my opinion, is not, applicable because here it was not the time granted to the Petitioner for filing the application. In the instant case, under the rules and the law, the application should have been filed duly accompanied by an affidavit. The Petitioner presented the application on the 18th without any affidavit, which means that there was no application at all. Further the same was returned to him with the direction to re-file the same within four days accompanied by an affidavit, but the Petitioner failed to comply. He did not present the same till the 11th May, 1973 by which time the period of limitation had run out and the suit had abated.

The second authority relied upon is Wali Mohammad Khan v. Ishak Ali Khan and Ors. AIR 1931 All 507. It deals with the omission to comply with the provisons regarding presentation of plaint and the absence of signatures, verification or presentation on the part of some of the Plaintiffs. It further says that these provisions requiring verification, etc., are not mandatory and if there is an omission to comply with those provisions the same is an irregularity which can be cured. But the present cannot be said to be an irregularity when the rules so enjoin. Further, verification is different from the filing of affidavit required under the rules.

The further authority is Bhalu Naik Vs. Hemo Naikani, , in which the application for interim maintenance and litigation expenses was not supported by an affidavit and it was held that the requirement of Clause (b) of Rule 13 did not affect initial jurisdiction of the Court to entertain such an application. Rule 6(a) is analogous to the provisions of the CPC for presentation and verification of the plaint. In the instant case the petition not having been accompanied by an affidavit was returned to the Petitioner and four days were granted to him. He did not file the same till the 11th May and hence there was no petition before the Court, and, therefore, this authority is distinguishable.

Similarly in All India Reporter Ltd. and Another Vs. Ramchandra Dhondo Datar, it was held that the facts regarding to the signatures, verification or presentation of the plaint are cured on a day subsequent to the date of filing the suit, the date of institution of the plaint is not changed to the sequsequent date. The date of institution of the suit or the date from which an amendment takes effect does not depend on the discretion of the Court. Of course the Court has a discretion to allow or not to allow an amendment of the pleadings or the re-signing or re-verification of the plaint. Once the discretion is exercised, the amendment of the plaint or the fresh signature or verification of the plaint relates back to the original date of the suit. Therefore, in view of its different facts the case has got no application to the facts of the case in hand.

The further authority is Gobind Singh v. Deoraj AIR 1958 Raj 128. In this case the execution application did not bear the signature of the decree-holder on the Vakalatnama of the Vakil and the Court held that such a defect is not and cannot be called an illegality. It would be an irregularity which may be allowed to be cured by the Court but only in those cases where it finds that the mistake has been committed bona fide and where the party has not committed gross negligence Therefore, the facts of this case are also distinguishable.

From the aforesaid discussion, I am of the view that the non-filing of the affidavit with the application as required by the Rules of 1967 as also the Rules 5, 6 and 7 of Chapter 1-C of the Punjab High Court Rules and Orders Volume V, is an illegality. On the 18th April, 1972 he presented the application unaccompanied by an affidavit and it was returned to him with a direction to re-file the same on the 22nd, but instead of re-filing it on the said date he re-filed the same on the 11th May, 1972, and, therefore, there was no application till the 11th May before the Court. The application filed earlier was invalid. Hence the issue is decided against the Petitioner.

Issues Nos. 1 and 2:

Under Article 121 of the Indian Limitation Act, an application under Order 22 Rule 9 of the CPC to set aside the order of abatement has to be made within two months on the ground that he was prevented by sufficient cause from making an application for substitution within time. In the instant case admittedly the application, OMP No. 109/72 was made on 5-9-1972. Two months'' time for setting aside the abatement expired on the 18th or say the 22nd June, 1972, but the Plaintiff filed the application only on the 5th September, 1972. The ground stated in the application for condonation of the delay in filing the application after such a long time was that the Plaintiff had sent the application duly accompanied by an affidavit on the 18th March, 1972, to his counsel at Simla. The counsel somehow misplaced the affidavit. He searched out for the same. When he could not trace out the same he filed the application without an affidavit on the last date of limitation, i.e. on the 18th April, 1972 for bringing the legal representatives on the record. The office returned the application with a direction to re-file the same along with an affidavit within four days. The counsel could not trace out the affidavit and he wrote: to his father at Sundernagar to contact the Plaintiff and send an affidavit. The counsel himself did not know the correct address of the Plaintiff. His father also could not contact the Plaintiff. He had been making sustained efforts to trace out the affidavit. It was only on the 11th May, 1972, that he could trace out the affidavit and filed the application along with the affidavit in the Court. Shri D.P. Sud Advocate who was engaged as a counsel has gone in the witness-box as P.W. 1 to support the averments made in the application, besides Shri Thakur Dass (P.W. 2). It may be true that the affidavit was somehow misplaced in the office of Shri D.P. Sud and he made sustained efforts to trace out the same. But Shri D.P. Sud has contradicted himself when he says that he traced out the affidavit on the 9th May, 1972, whereas in the petition he has stated that the same was traced on the 11th and he filed the application the same day. It cannot be denied that by the 11th the suit had abated as there was no application before the Court. The learned Counsel did not file any application u/s 5 of the Indian Limitation Act for condonation of the delay in filing the application. This ground was disclosed only in the application, OMP 109/72, which was filed on 5th September, 1972. The Plaintiff has not shown any cause why he could not make any application under Order 22 Rules 4 and 9 of the CPC read with Section 5 of the Indian Limitation Act for setting aside the abatement till that date. The cause shown in the application is only with regard to the filing of an application under Order 22, Rule 4 of the Code of Civil Procedure, in May, 1972. The Petitioner has not disclosed any cause which prevented him from filing the application till the 5th September, 1972. Therefore, in the absence of any cause being disclosed the abatement cannot be set aside. The Plaintiff appears to be grossly negligent in not filing the same within the period granted to him and if the suit had abated by that time then he should have filed an application on the 11th May, 1972, along with an application under Order 22 Rules 4 and 9 of the CPC for setting aside the abatement and then it could be said that there was a sufficient cause. He exhibited disinterest and gross negligence in not filing the application in time and the delay remains unaccounted for. According to the Union of India (UOI) Vs. Ram Charan and Others, Rule 9 of Order 22 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 about 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 the reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit. In the instant case the Petitioner had not been able to explain the delay which prevented him from filing the application earlier to 5th September, 1972.

It was further urged that it was due to the mistake of the counsel that the affidavit had been misplaced and he could not be penalised for the mistake of the counsel. In this behalf it may be stated that it was not only the mistake of the counsel but it was the mistake of the Plaintiff also who had come to Simla on the 12th of May as stated by him. He had learnt about the abatement but he did not elect to file the application for setting aside the abatement till the 5th of September, 1972. Hence the issues are decided against the Plaintiff-Petitioner.

I have held that the first application was not a valid one and that when it was presented on the 11th May, 1972, the suit had abated and there was no application for condonation of the delay nor any application for setting aside the abatement. The same was made only on the 5th September, 1972 and the Plaintiff failed to explain the delay which prevented him from making the application within 60 days. Consequently, the applications fail and are hereby dismissed, leaving the parties to bear their own costs.