Delhi High Court
Sartaj Singh vs S.Jagjit Singh & Ors on 26 April, 2023
Neutral Citation Number: 2023:DHC:2916
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26th April, 2023
+ RFA 625/2007 with CM APPLs. 52605/2018, 52606/2018,
3365/2019, 9511/2020, 9512/2020
SARTAJ SINGH ..... Appellant
Through: Ms. Aditi Shastri, Advocate
versus
S.JAGJIT SINGH & ORS ..... Respondents
Through: Mr. Ramesh Kumar, Advocate
for R-6 (M:9810159436)
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
[Physical Hearing/ Hybrid Hearing]
MINI PUSHKARNA, J. (ORAL):
CM APPLs. 52605/2018, 52606/2018, 3365/2019, 9511/2020 &
9512/2020
1. The aforesaid applications have been filed on behalf of
applicant, being the son of deceased appellant praying for bringing the
Legal Representatives (LRs) of deceased appellant on record with
further prayer for setting aside the abatement of appeal and for
bringing on record the LRs of the deceased respondent no. 1 and 3(ii).
2. CM No. 52605/2018 is an application for bringing on record the
LRs of the deceased appellant.
3. CM No. 52606/2018 is an application for setting aside the
abatement of appeal and for condoning the delay in filing the
application for bringing on record the LRs of the deceased appellant.
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4. CM No. 3365/2019 is an application for bringing on record the
LRs of the deceased respondent no. 1 and 3 (ii).
5. CM No. 9511/2020 is an application for condoning delay in
filing the application for bringing on record the LRs of the deceased
respondents and for setting aside the abatement on that account.
6. CM No. 9512/2020 is an application for taking on record the
amended memo of parties.
7. The applications have been filed on behalf of one applicant
only, i.e. son of the deceased appellant. When it was brought to the
notice of the counsel that the applications were not supported by
affidavits of other LRs of the deceased appellant, requisite affidavits
of other LRs have been filed subsequently at the time of final
arguments of the present applications.
8. It is submitted that the appeal was filed by the deceased
appellant through Sh. S.K. Pruthi, Advocate who was looking after the
case. Unfortunately, the appellant died on 27.02.2017 and LRs had no
knowledge about the filing of the said appeal. It is the case of the
applicant that all the papers of the present appeal were in possession
of Sh. S.K. Pruthi, Advocate but unfortunately Sh. S.K. Pruthi,
Advocate had also died in April, 2011.
9. It is submitted that the applicant was not aware about the filing
of the said appeal and also about the death of Sh. S.K. Pruthi,
Advocate until 27.10.2018, when the applicant received a telephonic
message from the daughter of the said Sh. S.K. Pruthi, Advocate,
namely Ms. Nidhi Pruthi. She informed the applicant that the file
pertaining to the appeal was lying in the office of late Sh. S.K. Pruthi,
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Advocate. Thus, the applicant contacted daughter of the deceased
Advocate on 28.10.2018 and daughter of the said Advocate handed
over the case file to the applicant.
10. It is submitted that the daughter of late counsel, who is also an
Advocate, further told that the applicant that he should engage a
counsel who is dealing in High court matters. Consequently, the
applicant after taking the said file from the daughter of the late
Advocate, contacted the present counsel who informed him that the
appeal had already abated due to non-filing of the application for
bringing on record the LRs of appellant. Steps were taken thereafter to
file the present applications. Thus, it is submitted that non-filing of the
application for bringing on record the LRs of deceased appellant
within time, is neither intentional nor deliberate. It is prayed that the
abatement of appeal may be set aside and delay in filing the
application for bringing on record the LRs of the deceased appellant,
may be condoned.
11. It is submitted that the applicant was advised by the present
counsel to confirm whether all the respondents were alive. Thereafter,
on 31.10.2018, the applicant contacted respondent no. 2(ii), who
informed him that respondent no. 1 had died on 03.01.2015. The said
respondent no. 2(ii) also informed the applicant that respondent no.
3(ii) had died. When the applicant contacted the son of the deceased
respondent, he came to know that respondent no. 3(ii) had died on
20.06.2007. Thus, applications have been filed to bring on record the
LRs of the deceased respondent no. 1 and 3(ii), with prayer for
condoning the delay in filing the application for bringing on record the
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LRs of the deceased respondent.
12. In support of his submissions, following judgments have been
relied upon on behalf of the applicant:
I. Siravarapu Appa Rao & Ors. Vs. Dokala Appa Rao,
2022(8) SLT 456
II. Perumon Bhagvathy Devaswom, Perinadu Village Vs.
Bhargavi Amma (Dead) by LRs and Others, (2008) 8 SCC
321
13. On the other hand, on behalf of the respondents, the present
applications have been opposed vehemently. It is submitted that the
applications have been filed at a belated stage. The applicant has not
shown any justified reasons for delay in moving the present
applications.
14. It is submitted that it is difficult to believe that when counsel for
the deceased appellant had expired in April, 2011, the family of the
deceased appellant could not get information from April, 2011 till
27.10.2018 about the pendency of the present appeals. The applicant
has created a false story to file the applications in order to get relief on
the basis of flimsy grounds. It is submitted that the daughter of the
deceased counsel has been in the profession since the year 2003 and
she is also maintaining her office. Hence, it is difficult to believe that
from April, 2011 till 27.10.2018, she might be holding the file without
informing the family of the deceased appellant about the same.
15. It is further submitted that the present applications have been
filed on the basis of false and concocted facts by stating that applicant
had no knowledge about filing of any appeal by his deceased father,
whereas, it is matter of record that the deceased appellant had expired
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at the age of more than 80 years and every time he was accompanied
by one of his sons or any other family member for the court
proceedings. Hence, the ground taken by the applicant in the
applications is self contradictory.
16. It is, thus, submitted that there is no explanation for delay in
filing the respective applications for bringing on record the LRs of the
deceased appellant and LRs of the deceased respondents. It is prayed
that the applications be dismissed, as the appeal already stands abated.
17. On behalf of the respondents, the following judgments have
been relied upon:
i. Badni (dead) by LRs. & Ors., etc. etc. Vs. Siri Chand
(dead) by LRs. & Ors., etc., AIR 1999 SUPREME COURT
1077
ii. Jai Ram (Deceased) Son Of Attra Vs. Jagat Ram Alias
Mangat Ram, AIR 1991 PUNJAB & HARYANA 203
iii. PADMARAM Vs. SURJA, AIR 1961 RAJASTHAN 72 (V
48 C 26)
iv. SHIVRAJSINGH Vs. GAURISHANKAR BALDEO
PRASAD, AIR 1961 MADHYA PRADESH 147 (V 48 C
51)
v. Balwant Singh Vs. Jagdish Singh & Others, AIR 2010
SUPREME COURT 3043
18. I have heard learned counsels for the parties and have perused
the record.
19. Order XXII Rule 3 of Code of Civil Procedure, 1908 (CPC)
provides categorically that in case no application is made for bringing
the legal representatives of the deceased plaintiff/appellant on record,
the suit/appeal shall abate. Similarly Order XXII Rule 4 CPC provides
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that where within the time as provided by law, no application is made
for bringing on record the legal representatives of the deceased
defendant/respondent, the suit/appeal shall abate as against the said
defendant/respondent. Further, Order XXII Rule 9 CPC provides that
if it is proved that the legal representatives of the deceased
plaintiff/appellant were prevented by any 'sufficient cause' for
continuing the suit/appeal, the court shall set aside the abatement.
Thus, the applicant in the present case was required to file the
requisite applications for bringing on record the legal heirs of
deceased appellant as well as the deceased respondents within 90 days
from the date of death of the party, unless 'sufficient cause' is shown
for condoning the delay in taking steps for bringing on record the legal
heirs of the deceased appellant/respondent.
20. In the present case, the appellant passed away on 27.02.2017.
The application for bringing on record the LRs of the deceased
appellant was filed only on 12.12.2018. The reasons for delay as given
are that the LRs were not aware of the pendency of the present appeal.
It is hard to believe that the family members of the deceased appellant
were not aware of the pendency of the present appeal. It is a matter of
fact that the deceased appellant had been pursuing the legal
proceedings since the year 1985, when suit was filed by him against
the respondents herein. The appellant had adduced evidence on his
behalf and had filed the present appeal in the year 2007 against the
impugned judgment and decree dated 31.10.2007 passed by the
learned Trial Court. The address as given by the deceased appellant in
his affidavit filed along with the present appeal is the same as given
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on behalf of the applicant in the affidavits accompanying the present
applications. It is not the case of the applicant, who is son of the
deceased appellant, that he was staying separately from his father or
was not in talking terms with his father so as not to know about the
pendency of the litigation as initiated by his father. Thus, no plausible
or justified reasons have been given on behalf of the applicant for
condoning delay in filing the applications for bringing on record the
LRs of the deceased appellant or for setting aside the abatement of the
appeal.
21. It is also to be noted that respondent no. 1 had expired on
03.01.2015. Respondent no. 3(ii) had expired on 20.06.2007.
However, application for bringing on record the LRs of the said
deceased respondents was filed only on 22.12.2018, though it is dated
12.11.2018. The appeal had already abated on account of death of
these two respondents and no application was filed in between under
Order 22 Rule 9 CPC for setting aside the abatement.
22. The applicant filed application under Order 22 Rule 9 CPC
seeking setting aside of abatement of appeal on account of death of the
appellant and respondent no. 1 and 3 (ii) only on 05.02.2020. The
reasons cited for belated filing was again that the applicant was not
aware of the pendency of the present appeal, which explanation has
already been rejected by this Court as not being credible.
23. It is also a matter of fact that both the above respondents had
died when appellant was still alive. However, no reason has been cited
as to what prevented the appellant from making any application for
bringing on record the LRs of the said deceased respondents, during
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his lifetime. It has not been pleaded that the deceased appellant was
not aware of the death of the deceased respondents. When no
explanation has come forward about the deceased appellant for not
filing the application for bringing on record the LRs of deceased
respondents from the period 20.06.2007, when respondent no. 3(ii)
died till 27.02.2017, when the appellant died, the explanation given by
the applicant for himself cannot be entertained. This is especially so in
the facts and circumstances of the present case, as the parties are
members of the same family and the dispute being essentially in the
nature of proceedings for possession and partition.
24. It is clear from the aforesaid narrative that the applicant has
been totally callous and negligent in pursuing the present appeal. The
explanations, as sought to be given by the applicant for delay in filing
the applications, are not plausible. The appeal has already abated and
the applicant has not been able to show any sufficient cause for setting
aside the abatement. Upon abatement of appeal, a right has accrued in
favour of the respondents, which cannot be taken away on such flimsy
grounds, as sought to be raised in the present case.
25. Hon'ble Supreme Court in the case of Balwant Singh (dead)
Vs. Jagdish Singh & Ors., reported as (2010) 8 SCC 685 has held as
follows:
18. In Union of India v. Ram Charan [AIR 1964 SC
215] a three-Judge Bench of this Court was concerned
with an application filed under Order 22 Rule 9 CPC for
bringing the legal representatives of the deceased on
record beyond the prescribed period of limitation. The
Court expressed the view that mere allegations about
belated knowledge of death of the opposite party would
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not be sufficient. The Court applied the principle of
"reasonable time" even to such situations. While stating
that the Court was not to invoke its inherent powers
under Section 151 CPC it expressed the view that the
provisions of Order 22 Rule 9 CPC should be applied.
The Court held as under : (Ram Charan case [AIR 1964
SC 215] , AIR pp. 219-20, paras 8, 10 & 12)
"8. There is no question of construing the expression
„sufficient cause‟ liberally either because the party in
default is the Government or because the question arises
in connection with the impleading of the legal
representatives of the deceased respondent. The
provisions of the Code are with a view to advance the
cause of justice. Of course, the court, in considering
whether the appellant has established sufficient cause
for his not continuing the suit in time or for not applying
for the setting aside of the abatement within time, need
not be overstrict in expecting such proof of the
suggested cause as it would accept for holding certain
fact established, both because the question does not
relate to the merits of the dispute between the parties
and because if the abatement is set aside, the merits of
the dispute can be determined while, if the abatement is
not set aside, the appellant is deprived of his proving his
claim on account of his culpable negligence or lack of
vigilance. This, however, does not mean that the court
should readily accept whatever the appellant alleges to
explain away his default. It has to scrutinise it and
would be fully justified in considering the merits of the
evidence led to establish the cause for the appellant's
default in applying within time for the impleading of the
legal representatives of the deceased or for setting aside
the abatement.
***
10. ... The procedure requires an application for the
making of the legal representatives of the deceased
plaintiff or defendant a party to the suit. It does not say
who is to present the application. Ordinarily it would be
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the plaintiff as by the abatement of the suit the defendant
stands to gain. However, an application is necessary to
be made for the purpose. If no such application is made
within the time allowed by law, the suit abates so far as
the deceased plaintiff is concerned or as against the
deceased defendant. The effect of such an abatement on
the suit of the surviving plaintiffs or the suit against the
surviving defendants depends on other considerations as
held by this Court in State of Punjab v. Nathu Ram [AIR
1962 SC 89] and Jhanda Singh v. Gurmukh Singh [
Civil Appeal No. 344 of 1956 decided on 10-4-1962
(SC)] . Any way, that question does not arise in this case
as the sole respondent had died.
***
12. ... The legislature further seems to have taken into
account that there may be cases where the plaintiff may
not know of the death of the defendant as ordinarily
expected and, therefore, not only provided a further
period of two months under Article 171 for an
application to set aside the abatement of the suit, but
also made the provisions of Section 5 of the Limitation
Act applicable to such applications. Thus the plaintiff is
allowed sufficient time to make an application to set
aside the abatement which, if exceeding five months, be
considered justified by the court in the proved
circumstances of the case. It would be futile to lay down
precisely as to what considerations would constitute
„sufficient cause‟ for setting aside the abatement or for
the plaintiff's not applying to bring the legal
representatives of the deceased defendant on the record
or would be held to be sufficient cause for not making
an application to set aside the abatement within the time
prescribed. But it can be said that the delay in the
making of such applications should not be for reasons
which indicate the plaintiff's negligence in not taking
certain steps which he could have and should have
taken. What would be such necessary steps would again
depend on the circumstances of a particular case and
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each case will have to be decided by the court on the
facts and circumstances of the case. Any statement of
illustrative circumstances or facts can tend to be a curb
on the free exercise of its mind by the court in
determining whether the facts and circumstances of a
particular case amount to „sufficient cause‟ or not.
Courts have to use their discretion in the matter soundly
in the interests of justice."
26. No sufficient cause has been shown by the applicant for
condoning the delay in filing the present applications. The law is very
clear that in case no application is made by the party concerned to
whom the right to sue survives after demise of the appellant or for
substitution of a party within 90 days of the death of such party, such
appeal shall abate automatically on the expiry of the 90 days from the
death of such party. Unless a party is able to show 'sufficient cause'
for delay in taking the appropriate steps for substituting the LRs of the
deceased appellant or for bringing on record the LRs of deceased
respondents, the appeal shall stand abated.
27. Supreme Court in the case of Balwant Singh (Dead) Vs.
Jagdish Singh (Supra) while dealing with the aspect of law of
limitation, has held that if a party has been negligent in implementing
its rights and remedies, then delay cannot be condoned in such
circumstances on the mere asking of the applicant. Thus, it has been
held as follows:
"26. The law of limitation is a substantive law and has
definite consequences on the right and obligation of a
party to arise. These principles should be adhered to
and applied appropriately depending on the facts and
circumstances of a given case. Once a valuable right
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has accrued in favour of one party as a result of the
failure of the other party to explain the delay by showing
sufficient cause and its own conduct, it will be
unreasonable to take away that right on the mere asking
of the applicant, particularly when the delay is directly a
result of negligence, default or inaction of that party.
Justice must be done to both parties equally. Then alone
the ends of justice can be achieved. If a party has been
thoroughly negligent in implementing its rights and
remedies, it will be equally unfair to deprive the other
party of a valuable right that has accrued to it in law as
a result of his acting vigilantly."
28. There is another aspect of the matter. Once appeal has abated
qua respondent No.1 and 3(ii), it shall abate with respect to other
respondents also. It has been held time and again that in case there is a
possibility that the court may pass a decree contradictory to the decree
in favour of the deceased party, the appeal would abate in toto. It has
been held that the appeal is continuity of the suit and law does not
permit two contradictory decrees on the same subject matter of the
suit. In the present case, all parties being family members and the case
being pertaining to partition and possession, the interests of all the
parties are intertwined. Thus, if suit is allowed to continue against
other respondents, the same may lead to contradictory decrees qua the
deceased respondents and surviving respondents.
29. Thus, in the case of Budh Ram and Others Vs. Bansi and
Others, (2010) 11 SCC 476, Supreme Court has held as follows:
"13. In Sri Chand v. Jagdish Pershad Kishan Chand [AIR
1966 SC 1427] this Court held that in case one of the
respondents dies and the application for substitution of his
heirs or legal representatives is not filed within the
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limitation prescribed by law, the appeal may abate as a
whole in certain circumstances and one of them could be
that when the success of the appeal may lead to the courts
coming to a decision which may be in conflict with the
decision between the appellant and the deceased
respondent and, therefore, it will lead to the court passing
a decree which may be contradictory and inconsistent to
the decree which had become final with respect to the
same subject-matter between the appellant and the
deceased respondent in the same case."
30. In view of the aforesaid detailed discussion, it is held that the
applicant has not been able to give any reasonable or satisfactory
explanation for delay in filing the applications for substitution of legal
heirs of the deceased appellant or for bringing on record the legal heirs
of the deceased respondents. Thus, the present applications are
dismissed.
RFA 625/2007
31. In view of the dismissal of the aforesaid applications, the appeal
stands abated. The appeal is accordingly dismissed as abated, along
with all the pending applications.
MINI PUSHKARNA, J
th
APRIL 26 , 2023
c
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