Kishori Lal Krishan Kumar vs Hans Raj Fialok
1997 Latest Caselaw 743 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioners in this revision petition have assailed the order dated 12.10.1995, passed by the learned Additional District Judge, allowing the applications filed by Sh. Vinod Kumar, legal representative and son of the deceased plaintiff, under Order Xxii, Rule 3, Cpc, and under Order Xxii, Rule 9, CPC. The learned Additional District Judge by the impugned order allowed the submission of the applicant Sh. Vinod Kumar in place of the deceased plaintiff and set aside the abatement.

(2) The factual matrix of the case may be noticed :

(I)The plaintiff Hans Raj Fialok expired on 17.4.1993. The Counsel of the defendant had so informed the Counsel for the plaintiff on 17.9.1993. The plaintiff's Counsel thereupon contacted the legal representatives of the deceased plaintiff and an application under Order Xxii, Rule 3, Cpc, for substitution of Sh. Vinod Kumar son of the deceased plaintiff on the basis of a will in his favour, was moved on 10.12.1993. An application for setting aside the abatement under Order Xxii, Rule 9, Cpc, was moved on 23.1.1995.

(II)In the application Order Xxii, Rule 3, Cpc, it was urged that the Counsel for the plaintiff upon learning of the plaintiff's demise, enquired from the legal heirs of the deceased plaintiff, who confirmed the factum of death and requested the Counsel to make proper application on the basis of the Will. It was claimed that the legal heirs of the deceased were not aware of the legal formalities and steps to be taken after the death of the plaintiff and as such could not instruct the Counsel earlier for filing the application. The delay in not filing the application was neither intentional nor deliberate. It was caused due to the legal heirs not being aware about the legal formalities and the requirement as to who has to file the application. In the application under Order Xxii, Rule 9, Cpc, besides reiterating the facts set out in the application under Order Xxii, Rule 3, Cpc, it was specifically averred that the legal heirs of the deceased wee not aware about the legal proceedings and about the formalities to be completed after the death and as such could not instruct the Counsel earlier for moving the application.

(3) The learned Additional District Judge accepted the explanation of the legal representative on behalf of the deceased plaintiff leaving regard to the fact that the suit was at an initial stage being then for service of the defendants, which did not require regular communication between the plaintiff and his Counsel. It was accepted that the plaintiff's Counsel did not have any information about the death of the plaintiff till 17.9.1993. The application under Order Xxii, Rule 3, Cpc, was moved within three months of gaining he knowledge of death. The learned Additional District Judge accepted that there was "sufficient cause" for condoning the delay as there was want of knowledge of the death of the plaintiff. The learned Additional District Judge further held that it was not a case of negligence on part of the Counsel for the plaintiff and ignorance and lack of information of death of plaintiff precluded taking of requisite steps.

(4) Learned Counsel for the petitioner has assailed the impugned order on the ground that the suit stood abated upon expiry of three months i.e. on 17.7.1993 and the application after six months moved for substitution was barred by limitation. Learned Counsel argued that there was no sufficient cause for not moving the application under Order Xxii, Rule 3, Civil Procedure Code and that the deceased plaintiff had failed to explain each days delay and to make out "sufficient cause". Learned Counsel submitted that the legal representatives of the deceased plaintiff had claimed lack of knowledge of legal formalities and not lack of knowledge of legal proceedings. Learned Counsel urged that it was the negligence of the legal representative of deceased plaintiff since it was neither the duty nor the obligation of the Counsel to make enquiry from the legal heirs of the deceased plaintiff. Learned Counsel criticized the observations of the learned Additional District Judge with regard to the stage of the suit being such where no regular communication was expected to be there between the Counsel and the deceased plaintiff as being needless and unwarranted Learned Counsel argued that mere ignorance of law by the legal representatives of respondent would not constitute "sufficient cause" within the meaning of Order Xxii, Rule 9, Cpc, entitling them for condensation of delay and for setting aside the abatement. Learned Counsel placed reliance on Dhani Ram & Another v. Mohd. Usman and Others, , Mst. Ram Piari & Others v. Union of India, and lastly on Nanda & Others v. Lachhman & Others, Air 1982 Madhya Pradesh

(5) I have given my careful consideration to the submissions made by the Counsel for the parties as well as perused the impugned order. The learned Additional District Judge has rightly observed that in the facts and circumstances of the present suit, which was at the stage of service of the petitioners/defendants, neither the plaintiff was expected to attend the proceedings daily nor was the Counsel expected to be in constant touch and regular communication with the deceased plaintiff. The learned Additional District Judge has rightly accepted the explanation of the legal representatives of the deceased plaintiff that as soon as they were contacted by the Counsel for the plaintiff they instructed him to move an application and take appropriate steps. The legal representatives of the deceased plaintiff in the application under Order Xxii, Rule 9, Cpc, have clearly stated that they were not aware about the pendency of legal proceedings. It was, therefore, not only a case of being unaware of the legal formalities to be completed, but was a case of the legal representatives not having the knowledge of the pending proceedings.

(6) It is now well settled that "sufficient cause" has to be liberally construed and consideration of doing substantial between the parties and disposal of the case on merits should outweigh technical objections unless it is a case of gross negligence and no ground or sufficient cause is made out. Reference is invited to Collector of Land Acquisition, Anant Nag v. Mst. Katy & Others, . The applicants are also not to be required to account of each day of delay. The judgments relied on by the petitioner also do not advance his case. In Dhani Ram's case, (supra) the learned Single Judge held that the scope of the provisions of Section 5 and 17(1)(B) of the Limitation Act was distinct from each other. He observed that sufficient cause under Section 5 would exclude the knowledge of the right cr title to make application. It was held that even if it was assumed the applicants did not know about the pendency of the appeal, it was not a "sufficient cause" for not preferring the application within the prescribed time of limitation within the meaning of Section 5 of Limitation Act. It must also be noticed that on facts in the said case, the Court: found the application for being brought on record as being deliberately vague not even mentioning the date of death The said case would even, therefore, be distinguishable on facts, in Mst. Ram Piari' case, it was held that the provisions of the Limitation Act applied to the case of a reference under the Land Acquisition Act and that the application under Order Xxii, Cpc, requiring the legal representatives to be brought on record has to be moved within the prescribed period. In the said case, no ground was urged for condoning the delay and as such the Court held that the reference proceedings abated. While in the instant case, the legal representatives of the deceased plaintiff have submitted that they had no knowledge of either the legal formalities or the pending proceedings. In Nanda and Others case (supra), it was held that mere ignorance of law or party being a villager is not just and sufficient for condoning the delay. It was held that pure and simple ignorance of law itself, cannot be an excuse and much less justification for condoning the delay alone.

(7) Notice must be taken of a recent decision of the Apex Court which is on similar facts. In Sharafat Hussain (Dead) through L.Rs. & Others v. Moild. Shafiq & Others, , the sole appellant in the first appeal before the High Court died on 1.12.1990. Intimation of the death was given by the Counsel for the respondent to Counsel for the appellant on 5.8.1991. As the application for substitution of legal representatives was not made within time, the appeal abated and was dismissed on 18.11.1991. An application was filed on 4.5.1992, for setting aside the abatement and for condoning of delay in filing the application and for bringing the legal representatives of deceased appellant on record. Counsel for the deceased appellant filed an affidavit stating that the delay occurred since he did not have the address of legal representatives and could not communicate to them that application for substitution had to be filed. It was only later when the Advocate met one of the legal representatives of the deceased appellant by chance that he informed him of the appeal. The Court held that the legal representatives of the appellant were unaware of the appeal filed by their father. The delay for bringing the legal representatives on record was condoned and abatement set aside. It would be seen that in the aforesaid case the Apex Court accepted the explanation for delay in moving the application for bringing the legal representatives on record and for setting aside the abatement on the ground that the legal representatives of the appellant were not aware of the tending appeal. The aforesaid decision of the Apex Court is clearly applicable to the facts of the instant case.

(8) In view of the foregoing discussion, I find that the learned Additional District Judge has exercised discretion and jurisdiction in accordance with law. The impugned order cannot be said to be vitiated by any material irregularity or error of jurisdiction. Revision petition has no merit and is dismissed.