Arun Kumar Aggarwal & Anr. vs Sudarshan Wadia & Ors.
2011 Latest Caselaw 3278 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI



+ I.A. No. 4440/2009 (under Order 22 Rule 4 CPC), I.A. No.
4441/2009 (under Section 5 of Limitation Act filed by plaintiffs)
& I.A. No. 12254/2010 (under Order 22 Rule 9 CPC filed by
plaintiffs) in CS(OS) No. 908/2008
*

Decided on: 12th July, 2011

ARUN KUMAR AGGARWAL & ANR. .....Plaintiffs

Through: Mr. Sudeep Suden, Adv.

VS

SUDARSHAN WADIA & ORS.

                          Through:     Mr. Rajeev M. Roy and
                                       Mr. Vaibhav Bhadana, Advs.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers            No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?               No

       3. Whether the judgment should be                   No
          reported in the Digest?


A.K. PATHAK, J.(ORAL)

1. Plaintiffs have filed this suit for specific performance, declaration

and permanent injunction against the defendants. Vide order dated

14th May, 2008, summons were issued to the defendants, returnable

for 15th September, 2008. After service of summons, defendant nos. 2

and 3 appeared in Court on 15th September, 2008 through their

counsel when it was informed that defendant no. 1 had died. Counsel

for the plaintiffs sought time to take appropriate steps for bringing on

record the legal representative (LRs) of defendant no.1. Plaintiffs have

filed I.A. No. 4440/2009 under Order 22 Rule 4 read with Section 151

of Code of Procedure Code, 1908 (CPC) accompanied with I.A. No.

4441/2009 under Section 5 of the Limitation Act, 1963 (hereinafter

referred to as "the Act") on 27th February, 2009. In view of the

objection taken by the proposed LRs in their reply, to the effect that

suit had abated after 90 days of death of defendant no.1, plaintiff has

filed I.A. No. 12259/2010 under Order 22 Rule 9 CPC for setting aside

the abatement on 27th August, 2010.

2. By way of these applications plaintiffs have prayed that the

delay be condoned, abatement be set aside and Mrs. Sudarshan Wadia

(wife), Mr. Siddarth Wadia (son) and Ms. Preeti Wadia (Daughter) be

impleaded as LRs of deceased defendant no.1.

3. Counsel for the plaintiffs has contended that the plaintiffs came

to know about the demise of defendant no.1 only on 15th September,

2008 when this fact was disclosed by the counsel for defendant nos. 2

and 3. Plaintiffs were not aware of the names and addresses of LRs

left behind by the defendant no.1. Only after making strenuous efforts

and rigorous follow up plaintiffs came to know about their names and

addresses about 10 days prior to filing the application. In nutshell, it

is contended that delay in filing the application was neither intentional

nor deliberate but due to the facts and circumstances beyond the

control of plaintiffs.

4. Counsel for the defendants has vehemently contended that

plaintiffs have failed to disclose "sufficient cause" for not making the

application within the prescribed period of limitation. Article 120 of

the Schedule to the Act prescribes 90 days period from the date of

death of defendant for filing an application for bringing on record the

LRs of a deceased defendant. Defendant no. 1 died on 11th July, 2008,

thus, the suit stood abated on 10th October, 2008 upon the expiry of

prescribed period of limitation of 90 days. Under Article 121 of the

Schedule to the Act, a further period of 60 days has been prescribed

for setting aside the abatement. This period had also expired on 9th

December, 2008. Since the desired applications were not filed on or

before 9th December 2008, a valuable right has accrued in the favour

of the LRs of deceased defendant, which cannot be defeated by

construing the application for condonation of delay liberally. It is

strongly contended that period of limitation will commence from the

date of death and not from the date of knowledge as has been

canvassed by the plaintiffs. That apart, the applications under Order

22 Rule 4 and Rule 9 are hopelessly barred by time even from the date

of knowledge, inasmuch as, no "sufficient cause" has been disclosed

for not filing the applications within the time prescribed under the law.

Reliance has been placed on Union of India vs. Ram Charan AIR

1964 SC 215, Krishan Lal vs. Beant Singh AIR 1974 Himachal

Pradesh 52 and Union of India vs. Kundan AIR 1977 Delhi 38.

5. To rebut these contentions, plaintiff's counsel has contended

that the period of limitation will commence from the date of

knowledge, i.e., from 15th September, 2008. Since names and

addresses of LRs were not within the knowledge of the plaintiffs,

application could not be filed in time. Only after rigorous follow up,

plaintiffs came to know about the names and addresses of LRs and

immediately thereafter applications have been filed. There has been

delay of only about 15 days in filing the application for bringing on

record the LRs as the same was filed within 165 days from the date of

knowledge. Delay is liable to be condoned and LRs be brought on

record after setting aside the abatement, in view of the explanation

offered by the plaintiffs. Plaintiffs were not to gain anything by

adopting dilatory tactics rather they would have suffered on account of

abatement of suit. It is further contended that to render substantial

justice, liberal approach has to be adopted while setting aside the

abatement by condoning the delay, inasmuch as, refusal to do so

would result in foreclosing a suitor from putting forth his cause.

Reliance has been placed on Arun Batra vs. Bimla Devi & Ors.

MANU/DE/0792/2009 and Ram Nath Sao @ Ram Nath Sahu &

Ors. vs. Gobardhan Sao & Ors. (2002) 3 SCC 195.

6. Relevant it would be to refer to Order 22 Rule 4 and Rule 10-A

CPC, with advantage, which reads as under :-

"Procedure in case of death of one of several defendants or of sole defendant - (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendants dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where -

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the Court shall, in considering the application under the said Section 5 have due regard to the fact of such ignorance, if proved.

Rule 10 A - Duty of pleader to communicate to Court death of a party - Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist".

7. It may be noted here that Sub Rule 5 of Rule 4 and Rule 10-A

have been inserted by virtue of Amendment Act 104 of 1976 with effect

from 1st February, 1977.

8. A conjoint reading of newly inserted Sub rule 5 of Rule 4 and

Rule 10-A makes it abundantly clear that period of limitation for filing

such application will commence from the date of knowledge and not

from date of death of the defendant. A duty has been cast upon the

defendant's counsel to inform the Court about the death of defendant

and notice of this fact has to be given to the plaintiff, inasmuch as,

plaintiff has been granted liberty to raise the plea of ignorance about

the factum of death. Judgments relied upon by the defendants are

prior to the amendment and the newly inserted sub rule/ rule has not

been considered in the said reports. In Perumon Bhagvathy

Devaswom vs. Bhargavi Amma (Dead) by LR's & Ors. (2008) 8 SCC

321, Supreme Court, after taking note of Rule 10-A of Order 22 has

held that need for diligence commences from the date of knowledge.

9. As per the defendant nos. 2 & 3, defendant no. 1 had died on

11th July, 2008 but, admittedly, this fact came to the knowledge of

plaintiffs on 15th September 2008 when counsel had informed this fact

to the Court. If the period of limitation is taken from 15th September

2008, then there is delay of about 15 days in filing the application as

this application has been filed about 165 days after the plaintiffs came

to know about the death of defendant no.1. As regards non-mentioning

of Rule 9 in the earlier application of Order 22 Rule 4 CPC and filing of

separate application in this respect is concerned, plaintiffs cannot be

found faulted with. They had informed the factum of death and names

of LR's to their counsel and it was for the counsel to file proper

application. Plaintiffs cannot be made to suffer for this lapse of

counsel, thus, subsequent application is taken note of along with the

application made under Order 22 Rule 4 CPC. Under Order 22 Rule 9

power vests in Court to set aside the abatement if it is proved that the

plaintiff was prevented by any "sufficient cause" from continuing the

suit. As per the plaintiffs, they was not aware of the names and

addresses of LRs of defendant No. 1 and only after making strenuous

efforts, they could find out their names and addresses, resulting in

delay in filing the application(s). This explanation offered by the

plaintiffs is not only probable but also plausible one. Plaintiffs were

stranger to defendant No. 1, in such a scenario, there is every

possibility of their finding it difficult to trace out the names and

addresses of LRs. The explanation offered, in my view, would certainly

fall within the ambit and scope of "sufficient cause" as envisaged

under Order 22 Rule 4 and 9 CPC. In this case, it cannot be said that

plaintiffs were negligent or guilty of "inaction" and had not exercised

"due diligence". The delay in this case is not so abnormal so as to

conclude that plaintiffs had acted with lethargy or intentionally caused

delay in filing the application in order to prolong the litigation nor can

it be said that they had not acted bonafidely.

10. In Shakuntala Devi Jain vs. Kuntal Kumari AIR 1969 SC

575, Supreme Court has held that Section 5 gives the courts a

discretion which in respect of jurisdiction is to be exercised in the way

in which judicial power and discretion ought to be exercised upon

principles which are well understood; the words "sufficient cause"

receiving a liberal construction so as to advance substantial justice

when no negligence nor inaction nor want of bona fides is imputable to

the appellant. In N. Balakrishnan vs. M. Krishnamurthy (1998) 7

SCC 123, Supreme Court held 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.

It was further held that the words "sufficient cause" under Section 5 of

the Act should receive a liberal construction so as to advance

substantial justice.

11. What emerges from the above is that the expression "sufficient

cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of

the Code or any other similar provision should receive a liberal

construction so as to advance substantial justice when no negligence

or inaction or want of bona fides is imputable to a party. In this case

delay is not shockingly abnormal nor is there anything on record to

suggest some inaction on the part of the plaintiffs to show that they

had not acted with diligence and plea taken by them lacks bonafide.

Explanation offered by the plaintiff in this case is acceptable to

condone the delay in filing of application for setting aside the

abatement as also for setting aside the abatement.

12. For the foregoing reasons all the above mentioned applications

are allowed, subject to cost of ` 10,000. Abatement is set aside and

legal representatives of the defendant No. 1 as mentioned in Para 4 of

I.A. No. 4440/2009 are brought on record. Amended memo of parties

be filed within two weeks.

CS(OS) No. 908/2008

Written statement be filed within four weeks with an advance

copy to the counsel for plaintiffs, who may file replication, if any,

within two weeks thereafter. Parties shall also file original documents

within six weeks. List before Joint Registrar on 13th September, 2011

for admission/denial of documents.

IA. NO. 5837/2008 (Order 39 Rule 1 and 2)

Reply be filed within four weeks. After completing the pleadings,

Joint Registrar shall list this application in court for arguments.

A.K. PATHAK, J.

July 12, 2011 ga