Aarohi Builders Pvt. Ltd. And Ors. vs Shri Rajeshwar And Ors.
2002 Latest Caselaw 2033 Del

JUDGMENT

C. K. Mahajan, J.

1. These are the applications filed on behalf of the plaintiffs under Order 22 Rules 4 and 5 for bringing the legal heirs of defendant No.1 on record and to set aside the abatement, and under Section 5 of the Limitation Act for condensation of delay in filing I.A. 1197/2000.

2. Defendant No.1 expired on 11.2.1999. Plaintiffs claim to have knowledge of the death on 23.9.1999 when the counsel for the defendants made a statement in Court. The plaintiffs filed the application under Order 22 Rule 4 CPC on 27.1.2000, i.e., after a lapse of more than four months along with an application under Section 5 of the Limitation Act for condensation of delay in filing the application under Order 22 Rule 4 CPC.

3. The applicant contends that due to lack of communication, the information could not be passed on to the plaintiff and application under Order 22 Rule 4 CPC could not be filed. It is also stated that on 25.1.2000 when the files were taken out for the next day, i.e., 27.1.2000 this fact came tot he notice of the counsel for the plaintiff and the application was filed on 27.1.2000. In any case, plaintiff came to know about the factum of death of defendant No.1 for the first time on 25.01.2000.

4. Smt. Chander Kanta, the proposed legal heir of defendant No.1 has filed her reply contesting the application for condensation of delay. She has alleged that defendant No.1 was residing in H-66, South Extn. Part I while plaintiffs No.2 and 3 along with their family members were living in H-68, South Extn. Part I. Plaintiff No.3 (ii) who has filed affidavit in support of the application has all along been living and residing in the said house No. H-68, South Extn. Part I. Both the houses, i.e., H-66 and H-68 are opposite to each other. Families of plaintiffs No.2 and 3 and defendant No.1 were on visiting terms. All the family members of plaintiffs No.2 and 3 including plaintiff No. 3(ii) were fully aware that defendant No.1 had died on 11.2.1999. The family members of plaintiffs No.2 and 3 also offered condolences to Smt. Chander Kanta on 12.2.1999. The applicants have suppressed true facts. The statement in the Court on 23.9.1999 was made in the presence of counsel for the applicant. It is also alleged that the applicant does not disclose any cause muchless any sufficient cause for delay in filing the application under Order 22 Rules 4 and 5 CPC.

5. In rejoinder, the plaintiffs have submitted

sometimes reside at H-68, South Extn. and sometime at Lucknow. It is also contended that during the period 26.1.1999 till 1st week of March 1999, Smt. Meena Jain and her mother-in-law were in Lucknow. Consequently, there was no occasion for coming to know about the death of defendant No.1. It has been denied that the families of plaintiffs No.2 and 3 and defendant No.1 are on visiting terms after the filing of the present proceedings. All other allegations made in the reply have been denied.

6. I have heard learned counsel for the parties.

7. An application for bringing the legal heirs of a deceased on record is to be made within 90 days from the date of death of the deceased or from the date of knowledge of death of the deceased. In the present case, the defendant No.1 died on 11.2.1999 which according to the plaintiffs came to their notice on 23.9.1999 when counsel for the defendant made a statement in the Court. The plaintiffs filed the present application under Order 22 Rule 4 on 27.1.2000, almost after more than four months after the prescribed period of limitation along with an application under Section 5 of the Limitation Act for condensation of delay.

8. It is settled law that to obtain extension of time by invoking the provisions of Section 5 of he Limitation Act, the party seeking extension has to satisfy the Court that there is sufficient cause for not approaching the Court within the prescribed time. Section 5 gives the Court a discretion which is to be exercised upon established principles.

9. A plethora of decisions lay down that the expression 'sufficient cause' is to be liberally construed so as to advance substantial justice when no negligence or inaction or bonafides is imputable to the parties. It is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of justice. It does not mean that every cause pleaded by the party has to be accepted where the party is negligent and has slept over its rights for over a year. The Court must not exercise discretion in such cases.

10. In Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. , their lordships of the Supreme Court have held that a justice-oriented approach has to be adopted while dealing with an application under Section 5 of the Limitation Act and that "every day's delay must be explained" does not mean that technical approach should be made.

11. Negligence of the counsel may be accepted by the Court as a justification in extending time unless the error of the counsel was tainted by any mala fide motive though the mistake of counsel cannot be treated as sufficient ground to condone delay by way of a rule of universal application. It is all a question of determining the bona fides of the litigant.

12. Learned counsel for the defendant has placed reliance on a judgment of the Full Bench of Gujarat High Court in Municipal Corporation of Ahmedabad. through the Municipal Commissioner v. Voltas Limited and etc. etc. wherein it was held as under:-

"The phrase 'sufficient cause' as occurring in Section 5 of the Limitation Act pertains to the establishment of the appropriate facts before the Court to which the Court can apply its mind and arrive at a conclusion regarding the sufficiency of the cause or otherwise. In essence, therefore, the phrase 'sufficient cause' is not a question of principle, but is a question of fact. Hence, whether to condone the delay or not depends upon the facts and circumstances of each case as sufficient cause' for condensation of delay depends only on the facts placed by the applicants before the Court. The principle in law only is that the Courts are required to take a liberal view while considering the facts constituting the sufficiency of the cause, on the basis of which condensation of delay is sought. This does not necessarily amount to saying that all applications for condensation must be granted. This is necessarily within the discretionary jurisdiction of the Court, and the Court deciding the application for condensation would necessarily exercise its discretion judicially in the light of the well-established principles, as regard the appreciation of the relevant facts."

13. In Smt. Tara Wanti v. State of Haryana through the Collector, Kurukshetra , it was observed as under:-

"To attract the provisions of Section 5 of the Limitation Act a Suitor is under an obligation to show that he had sufficient cause for not preferring the appeal or making application within the period of limitation prescribed under the Act or under any other statute governing the filing of the appeals or applications. Even though normally the grounds of sufficient causes have been spelt out by various pronouncements of different High Courts and the Apex Court yet no ground can be held to be generally applicable without exception. The question of existence of sufficient cause is to be decided on the basis of the facts and circumstances of each particular case. Sufficient cause within the meaning of the Section must be a cause which is beyond the control of the party invoking the aid of the Section and the test to be applied would be to see as to whether it was a bona fide cause, inasmuch as nothing could be considered to be bona fide which is not done with due care and attention.

Precisely, the meaning of the word sufficient cause and its scope should not be crystallised by any rigid definition."

14. Reliance has also been placed on a judgment of the Supreme Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf and Anr. wherein D.P. Wadhwa, J., while dissenting, held that:-

"Liberal all right, but delay is inexcusable unless sufficient cause is show. it is not the law that when an application seeking condensation of delay is filed by the State or any authority, this Court must invariably condone the delay irrespective whether sufficient cause is shown or not."

15. Now coming back to the present, case, the plaintiffs in para 5 of their application have submitted as under:-

"That on 23.9.1999, when the matter was listed before this Hon'ble Court, the associate of the counsel for the plaintiff Shri Ashwini Sood appeared and during the proceedings he came to know that defendant No.1 had expired. However, the date of death was not disclosed. Though, nothing to this effect was made on the file, however, the information could not be passed on to the plaintiff. During this period due to lack of communication also, proper application could not be moved and delay has occurred in the above circumstances which is bona fide as it is only on 25.1.2000 when the files were taken out for the next day, i.e., 27.1.2000 this fact came to the notice of the counsel for the plaintiff. In any case, the plaintiff remained altogether ignorant about the death of defendant No.1 and has virtually come to know about the factum of death of defendant No.1 for the first time on 25.1.2000..."

16. One thing is clear that the counsel for the plaintiffs came to know about the death of defendant No.1 on 23.9.1999 when a statement to this effect was made in Court. Yet no steps were taken. Plaintiffs claim lack of communication on the part of the associate counsel who appeared in the matter. However, no affidavit of the associate counsel, Mr. Ashwini Sood, has been filed to support the above contention.

17. It is relevant to note that the plaintiffs have admitted that they and the defendants are neighbours living in houses which are opposite to each other. The parties were on visiting terms prior to the institution of the suit. Therefore, it is highly improbable that the plaintiffs did not have knowledge of the death of defendant No.1.

18. There is no material on record to show that Manish Jain and Meena Jain were residents of Lucknow. There is also no material placed on record to support the contention that during the period 26.1.1999 till 1st week of March 1999, Smt. Meena Jain and her mother-in-law were in Lucknow. Therefore, this plea of the plaintiffs is also liable to be rejected. Moreover, the affidavits of Smt. Meena Jain and Shri Manish Jain in support of various applications mention the South Extension address, which confirms the fact that they reside in Delhi.

19. The mother-in-law of Smt. Meena Jain who has filed an affidavit in support of the application for condensation of delay and the mother of plaintiffs No.2 and 3 along with their daughter had called on Smt. Chander Kanta on 12.2.1999 and offered condolences on the death of defendant No.1. The plaintiffs have merely denied the same in their rejoinder. I have no reason to disbelieve the averments made in the affidavit in light of the fact that the parties were living opposite to each other and were on visiting terms.

20. There was total inaction, gross negligence and lack of bona fides on the part of the applicant for taking steps for bringing the legal heirs on record. The explanation offered is not cogent. A valuable right has accrued in favor of the legal heirs of defendant No.1. Equities are not in favor of the applicant. A litigant is required to be vigilant. The applicant did not proceed with due diligence and has failed to disclose sufficient cause to warrant exercise of discretion by this Court.

21. Having regard to the facts and circumstances of the case and in light of the aforesaid discussion, the application being I.A. 1198/2000 under Section 5 of the Limitation Act is dismissed. Accordingly, the application being I.A. 1197/2000 under Order 22 Rule 4 CPC is also dismissed.