Shri Arun Batra vs Ms. Bimla Devi & Ors.
2009 Latest Caselaw 1281 Del

    *              HIGH COURT OF DELHI : NEW DELHI

    +              I.A No. 1572/2004 and I.A. No. 9756/2008
                   in CS (OS) No.1578/1992

    %                          Judgment reserved on :   1st April, 2009
                               Judgment pronounced on : 9th April, 2009

    SHRI ARUN BATRA                                    ...Plaintiff
              Through : Mr. L.P. Dhir and Mr. Manoj Yadav, Advs.

                   Vs.

    MS. BIMLA DEVI & ORS.                               ..... Defendants
              Through : Mr. Manish Vashisht, Adv. for the LR of def. No.
                        1
                        Mr. K. Datta, Adv. for Def. No. 9
                        Mr. J.P. Gupta with Mr. Rikky Gupta, Advs.
                        for Def. No. 2
                        Mr. Lalit Gupta, Adv. for Def. Nos. 3-6
                        Mr. Girish Aggarwal, Adv. for Def. No. 8

    CORAM:
    HON'BLE MR. JUSTICE MANMOHAN SINGH

    1. Whether the Reporters of local papers may
       be allowed to see the judgment?                                Yes

    2. To be referred to Reporter or not?                             Yes

    3. Whether the judgment should be reported                        Yes
       in the Digest?

    MANMOHAN SINGH, J.

1. By this order, I shall dispose of the two applications i.e. IA

No.1572/2004 under Order 22 Rules 4 and 9 CPC and IA No.9756/2008

under Section 5 of the Limitation Act filed by the plaintiff. The plaintiff has

filed this suit for specific performance claiming, inter alia, a decree for

specific performance. Smt. Bimla Devi was arrayed as defendant No.1, who

expired during the course of the present proceedings on 06.10.2003.

According to the plaintiff, information regarding the demise of defendant

No.1, Smt.Bimla Devi, was made available to the plaintiff on 13.11.2003.

The deceased defendant No.1, Smt.Bimla Devi, had left behind the following

legal heirs :-

           a]        Shri Rakesh Aggarwal           - Son

           b]        Ms.Preeti                      - Daughter

           c]        Ms.Anju                        - Daughter

           d]        Shri Umesh Kumar               - Son

2. One of the legal heirs of the deceased defendant No.1 i.e. Shri Umesh

Kumar is already a party to the present proceedings as defendant No.8. The

contention of the plaintiff is that the right to sue survives against the legal

heirs of the deceased defendant No.1 as their successors to the interests in

respect of the suit premises. The averment made in the application is that the

plaintiff was ignorant of the demise of defendant No.1. The plaintiff was

informed about the demise of defendant No.1 only on 13.11.2003 during the

course of the court hearing. Although the application was to be filed within

the stipulated time of 90 days, the said period had expired prior to the filing of

the application. Thereafter the plaintiff has tried his best to get the name of

the legal heirs of deceased defendant No.1 within the stipulated time but it

was difficult to obtain.

3. The plaintiff has admitted in the present application filed on 5th

March, 2004 that the stipulated time of limitation had expired and the suit

against defendant No.1 had abated. It is contended that in view of the

sufficient cause shown by the plaintiff for filing the present application and in

order to continue the suit against the legal heirs of deceased defendant No.1,

Shri Rakesh Aggarwal, Ms.Preeti Jain and Ms.Anju Jain may be impleaded as

defendant No.1[a] to 1[c] and abatement of the suit be set aside in respect of

the legal heirs of deceased defendant No.1.

4. In another application being IA No.9756/2008 under Section 5 of the

Limitation Act, it is stated that there was a fault on the part of the Advocate,

who was earlier appearing on behalf of the plaintiff as he neither informed

about the death of defendant No.1, nor informed the period of limitation and

did not pursue the matter in a dedicated manner. The said counsel for the

plaintiff also did not give the address of the legal heirs of deceased defendant

No.1. Even the proposed defendant No.1[a], Shri Rakesh Aggarwal had filed

the reply dated 03.03.2006 to the main application under Order 22 Rule 3

CPC mentioning inter alia that there are also other legal heirs, who represent

the stake left behind by the deceased defendant No.1. under the Will executed

by her. During this period, the plaintiff also came to know that there is a

separate suit filed in this court by one of the other beneficiary of the alleged

Will executed by deceased defendant No.1.

5. It is further stated that under the said complex, complicated and

peculiar facts of the matter, there was sufficient cause for delay in filing of

the main application and the delay in filing of the application under Section 5

of the Limitation Act is not deliberate. It is also stated that in case the

abatement is not set aside, the plaintiff will suffer irreparable loss, injury and

harm and if these applications are allowed there shall be no prejudice to the

defendants.

6. Both the applications have been opposed by the defendants on the

ground that the application has been filed much beyond the prescribed period

of limitation i.e. 90 days from the date of the death of the deceased defendant

No.1. Even otherwise, the information about the demise of defendant No.1

was given on 13.11.2003 and the application under Order XXII Rules 4 and 9

CPC was filed only on 04.03.2004 and in case the period of limitation is to be

calculated from the date of death or from the date of knowledge, the

application in any case has been filed beyond the period of limitation. It was

also contended that the application filed by the plaintiff was not proper, highly

belated, without any sufficient explanation of delay and both the applications

are liable to be dismissed with costs.

7. The contention of the learned counsel for the plaintiff is that the

sufficient cause in filing of the application has been mentioned in paras 7 to

10 of the application filed under Order 22 Rules 4 and 9 CPC. He admits that

the application under Section 5 of the Limitation Act was filed more than four

and a half years after filing of the application under Order 22 Rules4 and 9

CPC. The explanation given by the learned counsel for the plaintiff is that in

the main application, the plaintiff has already mentioned about the setting

aside of the abatement as well as the averment pertaining to the delay in filing

of the application, therefore, filing of application under Section 5 of

Limitation Act is a formality and now it has been filed in order to avoid

objections from the office. He further states that the legal heirs of the

deceased defendant No.1 were not served in the main application for one

reason or the other and some of the legal heirs were served by substituted

service. As soon as the objection about the delay in making the application

was raised, the application under Section 5 of the Limitation Act was filed.

His contention is that the delay is not deliberate. Lastly, learned counsel for

the plaintiff submits that in connected case relating to the dispute about the

same property with the same defendants being C.S. [OS] No.2243/1993 titled

as Carvan Commercial Company V/s. Pushpa Devi & anr., IA

No.1439/2004 [u/S.5 of the Limitation Act] was filed to bring on record the

L.Rs. of deceased Smt.Bimla Devi. This court vide order dated 20.05.2008

has condoned the delay of 58 days in filing the application for impleadment of

said four legal heirs of deceased Smt. Bimla Devi in the same situation.

8. Learned counsel for the defendant, on the other hand, states that there

is a long delay in filing of the application under Section 5 of the Limitation

Act. The suit has already been abated against defendant No.1 and is liable to

be dismissed. Since the present case is a case of specific performance, in case

the suit against defendant No.1 is dismissed as being not maintainable, the

suit will also be dismissed against other defendants.

9. I have gone through the necessary applications, replies as well as the

judgments cited by the counsel for the parties. I have also gone through the

order passed by this Court in another suit being C.S. [OS] No.2243/1993 in

which the legal heirs of deceased Smt.Bimla Devi were brought on record and

delay in filing the application under Section 5 of the Limitation Act was

condoned by this Court. Learned counsel for the plaintiff has cited many

judgments to support his contentions. He referred to the case reported as

Ram Nath Sao vs. Gobardhan Sao, 2002 [3] SCC 195, wherein the Apex

Court in the similar situation has condoned the delay by taking the liberal

approach for setting aside the abatement of the suit by condoning the delay for

substitution of heirs and legal representatives. In paras 11 of the said

judgment, the Apex Court has held as under :-

"11. The Court further observed in paragraphs 11, 12 and 13 which run thus: (SCC pp. 127-28) "11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words „sufficient cause‟ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari5 and State of W.B. v. Administrator, Howrah Municipality1 .

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses." (emphasis added)"

10. In another case reported as Nagina Singh Vs. Naga Singh, 2002 [7]

SCC 113 in para 10 thereof, the Apex Court has condoned the delay in filing

the application under Order 22 Rules 2, 4 and 11 CPC for substitution of legal

representatives of one of the deceased appellant and taken the view that this

application ought to have been allowed and the respondent could have been

compensated by award of cost by the High Court in the interest of justice.

The Apex Court in para 10 of the said judgment has held as under :-

"10. Though there is a serious dispute as to the dates of death of Appellants 1(d) and 1(e), we are of the considered view that in the facts and circumstances of this case, the application for substitution of legal representatives of the aforesaid appellants should not have been rejected, having regard to the fact that all the contesting parties were on record and these appellants were brought on record only as legal representatives of Appellant 1 who had died during the pendency of the appeal. Having regard to the facts of the case and the interest of justice, the High Court ought to have condoned the delay, if any, in filing of the application for substitution and could have compensated the respondents by award of cost. This we consider appropriate, having regard to the interest of justice. The parties have litigated since the year 1974 and it is only fair that there should be adjudication on merit."

11. Regarding the plea of the plaintiff that in the application under Order

XXII Rule 4 and 9 CPC, specific prayer for setting aside abetment was

made and therefore, no separate application was filed, I may refer to the case

of Devinder Pal Sehgal & Anr. V. M/s Partap Steel Rolling Mills Pvt.

Ltd. & ors.; JT 2001 (10) SC 463, Apex Court clearly laid down the above

proposition. An oral prayer for condonation under Section 5 of Limitation

Act is sufficient. Formal application in writing is not necessary for granting

relief under Section 5 of Limitation Act.

12. In the case of Devinder Pal Sehgal (supra) the Apex Court clearly laid

down in para 7 as follows :-

"We have perused the restoration application as well as petition filed under Section 5 of the Limitation Act for condonation of delay in filing the same. It appears that in the application for restoration, all relevant facts have been stated not only to show that the plaintiffs had sufficient cause for non appearance on 24 th August, 1988 but

also to show sufficient cause for condonation of delay in filing the restoration application. This is the reason why in the petition for condonation of delay, it has been simply stated that facts stated in the restoration application may be taken into consideration for condonation of delay in filing the restoration application. Therefore, merely because in the order of trial court, specifically, there is no reference to petition for condonation of delay, it cannot be said that it did not consider the same. From a bare perusal of the order, it would appear that the grounds stated in the restoration application for non appearance on 24th August, 1988 as well as delay in filing the restoration application having found favour with the trial court, the suit has been restored, therefore, it cannot be said that the order of restoration has been passed without condoning the delay in filing the restoration application. The submission of the learned counsel appearing on behalf of the respondent that application for restoration filed on behalf of the plaintiffs was dismissed earlier for non prosecution cannot be taken to be a ground for throwing out the restoration application as the High Court on the earlier occasion set aside order of the trial Court whereby restoration application was dismissed for non-prosecution and the said order attained finality. In view of these facts, we are of the opinion that trial court had not acted in the exercise of its jurisdiction illegally or with material irregularity and accordingly the High Court was not justified in interfering with its order in the exercise of revisional jurisdiction."

13. From the bare reading of this judgment, it can not even be implied in

law that the power of the court to condone the delay is circumscribed by an

application being filed. The power to condone delay can be exercised if the

applicant satisfies the court that he had sufficient cause for not filing the

application within the period prescribed.

14. It is not necessary in law that an application must be filed. Of course

as a matter of practice the applicant files such an application. But the power

of the court is not necessarily dependent on a formal application being made

by the applicant. If it is made, well and good; but if it is not made and only an

oral prayer is made for condonation of delay the court is not powerless if there

is material on the record to show facts constituting sufficient cause for

condonation of delay.

15. As regards the filing of the application under Section 5 of the

Limitation Act after more than four and a half years is concerned, since the

plaintiff has already made the prayer to set aside the abatement of the suit in

the main application in which there was delay of two months, no prejudice

would be caused to the defendants if the present application is allowed. It is

not in dispute that in another matter i.e. in C.S. [OS] No.2243/1993 there was

a delay in filing of the similar application and the said delay had been

condoned by this court.

16. In view of the settled law on the subject coupled with the fact that the

defendant No.8 who is one of the legal heirs of deceased defendant No.1 is

already one of the party to the present proceedings and the factum of

abatement of the suit is already mentioned in the main application filed by the

plaintiff under Order 22 Rules 4 and 9 CPC wherein the specific prayer has

been made that the abatement be set aside, the present application, in my

considered opinion, should be allowed.

17. For the reasons stated in the application, I am of the opinion that the

plaintiff has shown the sufficient cause for condoning the delay in filing of the

application under Order 22 Rules 4 and 9 CPC for bringing on record the

legal heirs of deceased defendant No.1 on record. The application is

accordingly allowed subject to payment of cost of Rs.10,000/- to be deposited

in the Delhi High Court Legal Services Committee within four weeks from

today. The legal representatives of deceased defendant No.1 as mentioned in

the application be brought on record.

Applications stand disposed of accordingly.

C.S. [OS] No.1578/1992

Amended memo of parties filed is taken on record.

List this matter before the Joint Registrar on 01.07.2009 for further

proceedings.

MANMOHAN SINGH, J APRIL 09, 2009 SD