Sh. Mukesh Kumar Jain vs Ashok Shukla
2006 Latest Caselaw 1765 Del

JUDGMENT

T.S. Thakur, J.

1. This appeal arises out of a suit for recovery of money filed by the plaintiff-appellant but dismissed by the court below on the ground that the defendant was dead on the date the same was instituted.

2. The plaintiff's case as set out in the plaint was that the defendant Sh. Ashok Shukla had availed of his liasion services in connection with the vacation of a flat owned by the former at Napean Sea Road, Mumbai. The flat it appears was occupied by the Indian Oil Corporation, Mumbai as a tenant. Sh. Ashok Shukla is alleged to have agreed to pay to the plaintiff a liaison fee of Rs. 10 lacs apart from the out of pocket expenses which the plaintiff may have incurred in connection with the work assigned to him. The plaintiff's further case was that due to his efforts, the Indian Oil Corporation had eventually decided to vacate the flat thereby entitling the plaintiff to recover the promised amount of Rs. 10 lacs towards liaison fee apart from Rs. One lac towards out of pocket expenses which he had incurred. In partial discharge of the said liability, the deceased Sh. Shukla is said to have transferred certain share certificates held by him valuing Rs. 3 lacs in all and executed five different promissory notes four out of which were for Rs. 2 lacs each and the fifth for Rs. 20,000/- representing the balance amount. The amount covered by the Promissory Notes was to be arranged by the defendant within a period of one year with interest @ 18% per annum.

3. The execution of the promissory notes notwithstanding, the defendant did not arrange the payment of the amount due to the plaintiff despite repeated requests. A notice asking the defendant to do so also did not evoke any response. A decree for a sum of Rs. 8,20,000/- towards the principal amount and Rs. 3,69,000/- towards interest was, therefore, prayed for by the plaintiff with interest pendente lite and future.

4. While summons issued to the defendant had yet to be served upon him, the plaintiff moved an application under Order 22 Rule 4 of the CPC inter alia pointing out that the defendant had passed away leaving behind three legal representatives mentioned in the application. A prayer for substitution of the legal representatives in place of the deceased was also made. In response to the notices issued to them, the legal representatives appeared to file objections and pointed out that Sh. Ashok Shukla, the defendant in the suit, had passed away before the filing of the suit. It was also alleged that the plaintiff knew about the death of the deceased and that the suit against the legal representatives was not maintainable. The trial court allowed the application for substitution of the LRs by its order dated 19th February, 2004, and posted the case for written statement by the newly added defendants/LRs. Since the defendants did not appear to contest the suit, the trial of the suit proceeded ex parte in which the plaintiff adduced ex parte evidence in support of his case. By the judgment impugned in this appeal, the court eventually came to the conclusion that although the suit was filed within the period of limitation prescribed for the same, it was not maintainable as the defendant had passed away before the institution thereof. The court accordingly dismissed the suit aggrieved whereof the plaintiff has filed the present appeal, as noticed earlier.

5. Appearing for the appellant, Mr. Luthra argued that the suit filed by the appellant was based on the promissory notes executed in favor of the plaintiff appellant. The same, therefore, fell under Article 35 of the Second Schedule to the Limitation Act and could be filed within 3 years from the date the promissory notes were executed. All the five promissory notes having been executed by late Ashok Shukla on 9th July, 1998 any suit filed within 3 years of the said date was according to the learned Counsel within the period of limitation. He further argued that since the appellant was unaware about the death of the defendant, the substitution of the LRs of the deceased could at best be deemed to be addition of new defendants within the meaning of Section 21 of the Limitation Act in which event the plaintiff would be entitled to exclusion of the time during which he was diligently pursuing the suit filed against the deceased defendant. Reliance in support of that proposition was placed by the learned Counsel upon Section 14 of the Limitation Act, 1963. Reliance was also placed upon a single bench decision of the Nagpur High Court in Karimullah Khan and Anr. v. Bhanu Pratap Singh Giriraj Singh AIR 1938 Nagpur 458 and a division bench decision of the High Court of Andhra Pradesh in Khaja Begum v. Gulam Mohiuddin and Ors. .

6. We have given our anxious consideration to the submissions made by Mr. Luthra. The essential facts are not in dispute before us. It is not in dispute that the promissory notes relied upon by the plaintiff appellant were all executed on 9th July, 1998. It is also not in dispute that the present suit was filed in this Court on 9th July, 2001 but subsequently transferred to the court of Additional District Judge, Delhi on account of the enhanced pecuniary jurisdiction of the said court. It is also common ground that the defendant had died much before the institution of the suit on 26th July, 2000. The death certificate produced by the legal heirs of the deceased in that regard has remained unassailed. That the LRs of the deceased were for the first time added on 19th February, 2004 although the application for substitution had been filed on 18th December, 2001 is also not in dispute.

7. In the above backdrop, the suit of the plaintiff appellant was clearly barred by time as on the date the legal heirs were added as parties to the same. Even if one were to treat their addition to have taken place on the date the application was filed in December, 2001, the suit against them was barred by limitation. The effect of substitution or addition of a new plaintiff or defendant is governed by Section 21 of the Limitation Act, 1963 which may be gainfully extracted:

21. Effect of substituting or adding new plaintiff or defendant:

(1) where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:

Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

(2) Nothing in Sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

8. A plain reading of the above would make it manifest that as against the newly added defendants, the suit in so far as he or she is concerned is deemed to have been instituted when he is so added. Proviso to Sub-section 1 of Section 21 deals with a situation where the omission to include a new plaintiff or defendant was due to a mistake made in good faith, in which event the court may, if satisfied, direct that suit as regards the said plaintiff or defendant shall be deemed to have been instituted on an earlier date. Mr. Luthra feebly argued that the plaintiff-appellant was entitled in the instant case to such a direction inasmuch as the omission of the defendant from the suit was due to a mistake made in good faith.

9. We regret our inability to accept the submission made by Mr. Luthra. The plaintiff-appellant did not plead the requisite facts necessary for invoking the proviso before the trial court. Neither in the application filed for substitution of the LRs of the deceased nor in any separate application filed in that regard was the benefit of the proviso claimed by the plaintiff. There was, therefore, no occasion for the court to record its satisfaction that the omission to include the newly added defendant arose out of a mistake made in good faith. Even in the memo of appeal before us, there is no such plea raised by the appellant. That apart, the term "good faith" has been defined in Section 2(h) as under:

(h) "good faith" - nothing shall be deemed to be done in good faith which is not done with due care and attention;

10. The filing of a suit against a dead person without due care and caution could not be described as an act of good faith nor could omission of the LRs of the deceased from the suit be said to be a mistake made in good faith. We have in that view no hesitation in rejecting the first limb of the submission made by Mr. Luthra.

11. That brings us to the alternative argument advanced on behalf of the plaintiff. Section 14 of the Limitation Act, 1963 envisages exclusion of time during which the plaintiff has been prosecuting with due diligence another civil proceeding against the defendant where the proceeding relates to the same matter in issue and is prosecuted in good faith before a court who because of a defect of jurisdiction or other cause of a like nature is unable to entertain it. The relevant part of Section 14(1) with which we are concerned for the present reads as under:

14. Exclusion of time of proceeding bone fide in court without jurisdiction:

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

12. A bare perusal of the above would show that the benefit of exclusion of time is admissible only in cases where the plaintiff is prosecuting with due diligence "another civil proceeding" against the defendant in a court which from a defect of jurisdiction or other cause is unable to entertain it and that such prosecution is in good faith. It is evident that the benefit is available only if the following conditions are satisfied:

(i) The plaintiff is prosecuting "another civil proceedings".

(ii) The prosecution of such proceedings is with due diligence.

(iii) The proceedings relate to the same matter in issue and are prosecuted in good faith.

(iv) The proceedings are in a court which is unable to entertain it because of a defect of jurisdiction or other cause of a like nature.

13. The above requirements must be satisfied simultaneously in order to entitle the plaintiff to the benefit of exclusion of time taken in prosecuting the "other proceedings" referred to in Section 14(1) supra. Three of the above requirements fail in the instant case. The first is that the plaintiff was not prosecuting another civil proceeding within the meaning of the provision extracted above. The plaintiff was prosecuting the very same suit in which he now has added whether by way of substitution under Order 22 or addition under Order 1 Rule 10 of the CPC the newly added defendants. For the benefit of Section 14 to flow to a plaintiff in distress on account of limitation, it is necessary that there must be two proceedings, viz., one instituted by him before a court which is unable to entertain it and the other in which he seeks exclusion of the time.

14. The second requirement, viz., that the proceedings must be against the defendant also fails in the present case. The plaintiff was, in the instant case, prosecuting proceedings against late Ashok Shukla and not against the newly added defendants. As against the newly added defendants, there were no proceedings pending either before the trial court or before any other court for that matter so as to call for exclusion of the time taken for prosecution thereof.

15. The third requirement is also not met in the present case because even if the suit field against late Ashok Shukla, the deceased was by any stretch of reasoning described as another proceedings, such proceedings were not before a court that was unable to entertain it on account of any defect of jurisdiction or other cause of a like nature. Such being the position, the argument that the plaintiff could exclude the time taken by him in prosecuting the suit against late Shri Ashok Shukla has to be rejected. Filing of a suit against a dead person and prosecuting the same cannot in the facts and circumstances of this case even otherwise be described as an act of diligence or good faith within the meaning of Section 14 read with Section 2(h) of the Limitation Act.

16. Karimullah Khan's case (supra) upon which Mr. Luthra placed reliance does not lend any assistance to him. The question there was whether a defect arising out of a suit filed in the name of a dead plaintiff was capable of being cured under Order 1 Rule 10 of the CPC. The court held in the affirmative. The defect could, according to the court, be cured if the mistake is shown to have occurred in good faith provided no injustice was being caused to the defendant. That is not the position in the instant case. So also Khaja Begam's case (supra) referred to by Mr. Luthra does not support the proposition that a suit which is barred against the legal representatives could be treated to be within time either by reason of the proviso to Section 21(1) or Section 14(1) of the Limitation Act, 1963. The court in that case held that if a suit is filed against a dead person, the same can be amended by substitution of the legal representatives of the deceased. The suit is not, declared the court, void ab initio and can be continued against the LRs if their substitution is made within the period of limitation prescribed for the same. As noticed earlier, the suit as against the LRs was on the date of their addition as parties barred by limitation. The position may have been different if the addition of the LRs as parties was made before the expiry of the period prescribed for the suit against them.

17. Mr. Luthra lastly submitted that the trial court had found the suit to be within limitation but dismissed the same on the ground that it had been filed against a dead person. We do not think that much can be made out of that finding to save the suit. The trial court has no doubt held that the suit was within time on the date the same was filed but then such a finding was wholly inconsequential keeping in view the fact that the suit may have been within time vis-a-vis a dead person. What was important was whether the suit was also within time against the LRs left behind by the deceased who were added to the suit subsequently. We have answered that part of the question against the appellant. Even if the defect arising out of the institution of a suit against a dead person could be cured by addition of the LRs as parties under Order 22 or under Order 1 Rule 10 of the CPC, the suit against the newly added defendants ought to be within time as on the date of their addition. That was not so in the instant case. The question of holding the suit within time, therefore, does not arise.

18. In the result, this appeal fails and is hereby dismissed but in the circumstances without any orders as to costs.