Sushila Devi vs Parshotam Lal
1988 Latest Caselaw 254 Del

JUDGMENT

P.K. Bahri, J.

(1) Smt. Sushila Devi since deceased had filed this regular second appeal against judgment and decree dated January 18, 1983, of Shri S.R. Goel, Additional District Judge, by which he had dismissed the appeal against judgment and decree dated August 7, 1982, of ShriY.S. Jonwal, Sub-Judge, Delhi, whereby he had dismissed the suit brought by the appellant for recovery of Rs. 2,550.00 as arrears of rent.

(2) The appellant has died on May 23, 1987, during the pendency of the present appeal. The two applications have been moved by her husband, namely, Vidya Sagar Vaid one under Order Xxii Rules 3, 9, 10 & Ii read with Section 151 of the Code of Civil Procedure and another under Section 5 of the Limitation Act seeking that he be brought on the record as sole heir of deceased appellant inasmuch as the deceased during her life time had executed a valid will in his favor bequeathing her properties to him alone to the exclusion of her one son and two daughters. It has been pleaded by the applicant that he was representing the appellant throughout the proceedings from the lower court to the High Court as General Attorney of the appellant and he was under the impression that no application was required to be moved for substitution after death of the appellant inasmuch as he was already acting as General Attorney of the deceased during her life time and due to bonafide mistake he did not instruct his counsel to move any such application within the limitation and thus, the delay made in moving the application be condoned.

(3) Both these applications are hotly contested by the respondent pleading that no sufficient cause has been made out from the facts mentioned in the applications for setting aside of the abatement and the appeal be dismissed as having abated.

(4) Under Article 120 of the Limitation Act, an application for bringing on record the legal representatives of the appellant has to be moved within 90 days from the date of the death of the appellant. Admittedly, no such application was moved. So, in law the appeal stood abated on the expiry of the period of 90 days. I may mention that the present applications were moved by the appellant on October 20, 1987, although the applications show that these were duly prepared on October 15, 1987. The period of 90 days expired on August 21, 1987. Under Article 121 of the Limitation Act, an application under order Xxii Rule 9(2) of the Code of Civil Procedure could be moved for setting aside of abatement within 60 days of the date of abatement which period was to expire on October 20, 1987. It is true that the aforesaid applications have been moved within the period prescribed for setting aside of the abatement, but in order to obtain the order of setting aside of the abatement the applicant has to show sufficient cause. In the application the applicant has not disclosed as to on what date he apprised his counsel regarding the death of the appellant and on what date he was advised to move the application for being substituted as sole representative of the appellant. No explanation has been furnished as to why the applications, which were made ready on October 15, 1987, were not filed immediately thereafter and so, each day's delay has not been explained either in the applications or in the arguments advanced before me.In Union of India v. Ram Charan (deceased) through his Legal Representatives, , the Supreme Court explained the expression "sufficient cause" in the following words : "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.................. This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize 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 abatemeflt."

In Union of India v. Kandan, , a Division Bench of this Court while following the aforesaid judgment of the Supreme Court in the case of Ram Charon (supra) observed that it would be futile to lay down precisely as to what considerations would constitute sufficient cause within the meaning of the rule but that it can be said that delay should not be for reasons which indicate negligence on the part of the party in not taking ihe necessary steps which he could have and should have taken, and that what would be such necessary steps would depend on the facts and circumstances of the particular case. In the cited case, the applicant had failed to give explanation for each day's delay. It was observed that "on the whole the court was not satisfied that each day's delay had been explained. Coming to the facts of the present case, the applicant does not even allege in the applications as to when he was made aware of the legal position by his counsel and what steps were urgently taken for moving the applications. As a matter of fact, each day's delay has not been explained at all when we find that applications were made ready on October 15, 1987, but came to be filed only on October 20, 1987. Be that as it may, it is also settled proposition of law that mere ignorance of law does not by itself provide any sufficient cause unless the ignorance of law is coupled with something more. Counsel for the applicant has cited Abdul Latiff Molla v. Fazel All Karikar, , wherein it was held keeping in view the peculiar facts of the said case that ignorance of the appellant with regard to the statutory provisions was sufficient cause. However, the facts in the said case were that the appellants were illiterate women living in Purdah and keeping in view the said peculiar facts, the court even condoned the delay of seven years on the ground that such like illiterate women possibly could not know about the statutory provisions regarding requirement of moving of an application for substitution in a pending case. Such is not the case pleaded here. The applicant is not shown to be such an ignorant or illiterate person. Then, he has made reference to Ram Kali Devi & Ors. v. Ramesh Chander & Anr., . This judgment is distinguishable on facts. What happened in the said case was that application for setting aside of the abatement was moved just one day after the appeal bad abated and then sufficient reasons were given explaining the delay in an application moved subsequently. It was held that as sufficient reasons have been given explaining the delay of only one day, the delay was liable to be condoned. Such is not the case here. In the present case, the applicant has been grossly negligent in not taking earnest steps even for moving application for setting aside abatement in right earnest. No explanation has been given explaining each day's delay after the appeal stood abated. The reason given in the applications that the applicant was ignorant of statutory provisions is not by itself sufficient to be considered as sufficient cause inasmuch as nothing more has been alleged besides mere ignorance of law.

(5) Hence, I find that no sufficient cause has been shown on the record for setting aside the abatement. A wrong fact has been mentioned that the applicant was already on the record, rather the file shows that in the memo of parties the deceased appellant has not been described through her attorney. The mere fact that the applicant was pursuing the matter from the lower court to this Court as General Attorney of the deceased appellant would not mean that the applicant was already on record and thus, be was misled by that fact that no application for substitution was required to be moved. The applicant has also given an absurd explanation in the application that he was under a bonafide mistake, so he did not tell his counsel as he was of the view that the interest in the property had been created in favor of the applicant by the deceased in her life time. He does not say that he had acquired any interest in the property during the life time of his wife. He has made clear reference to a will which every person is supposed to know would come into force only on the death of the testator.

(6) I, hence, find no merit in these applications which I, hereby, dismiss. The appeal also stands dismissed as abated, but I leave the parties to bear their own costs in this appeal.