Rajasthan High Court
Sohani Devi And Others vs Kajod Mal on 6 May, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 102/2012
Sohani Devi And Others
----Appellants
Versus
Kajod Mal
----Respondent
For Appellant(s) : Mr. M C Jain
For Respondent(s) : Mr. Ajay Gupta
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
06/05/2022
1. This second appeal arises against the decree for specific
performance passed in favour of respondent-plaintiff.
2. During course of this second appeal, out of three appellants,
appellant No.1 has passed away on 26.02.2020 and appellant
No.2 has passed away on 19.03.2018, leaving behind their legal
representatives named in the application.
3. An application (I.A.No.3/2020) under Order 22 Rule 3 has
been filed to take the factum of death of appellant Nos.1 and 2 on
record and to allow the substitution of their legal representatives
in their place so as to pursue the second appeal on merits.
4. Since there is some delay in filing the application, a separate
application (I.A. No.1/2020) under Section 5 of Limitation Act for
condonation of delay and an application (I.A.No.2/2020) under
Order 22 Rule 9 CPC to set aside the abatement of appeal, if any,
have also been filed.
5. It has been alleged that appellant Nos.1 and 3 are widow
women and are illiterate ladies and they are not aware about the
(2 of 7) [CSA-102/2012]
procedure to inform the counsel about the death of appellant No.2
on 19.03.2018. Later on, appellant No.1 passed away on
26.02.2020. Thereafter, due to pandemic Covid-19, an application
for substitution of legal representatives could not file, thus, in the
aforesaid circumstances, the delay in filing application under Order
22 Rule 3 is not deliberate and mala fide but just circumstantial.
6. Having considered the nature of dispute involved in the
second appeal and reasons assigned for delay, this Court deems it
just and proper to condone the delay and to set aside the
abatement of appeal qua appellant Nos.1 and 2, operates by
operation of law and allow the substitution of legal representatives
in place of deceased appellant Nos.1 and 2.
7. Accordingly, applications (I.A. Nos.1/2020, 2/2020 and
3/2020) stand disposed of.
8. An application (I.A.No. 1/2021) under Order 22 Rule 10(A)
has been filed by one Harphool Singh, alleging inter alia that he is
the son of sole respondent-Kajod Mal. It has been mentioned in
the application that the sole respondent-Kajod Mal has passed
away on 15.01.2012. It has been alleged that this second appeal
has been filed assailing the judgment and decree dated
09.11.2011 passed by the first appellate court and thereafter, the
sole respondent has passed away, hence this second appeal has
been filed against the dead person and the same be dismissed as
abated.
9. Thereafter, appellants have filed application (I.A. No.2/2021)
under Order 22 Rule 4 CPC and application (I.A. No.4/2021) under
Section 5 of Limitation Act and later on an application (I.A.
No.3/2021) under Order 22 Rule 9 CPC, alleging inter alia that
right to sue survives against legal representatives of the deceased
(3 of 7) [CSA-102/2012]
respondent, hence they may be impleaded as respondents and
appeal may be allowed to continue.
10. Appellants have mentioned in their applications that the
factum of death of respondent has come to their knowledge only
after filing an application under Order 22 Rule 10(A) dated
16.01.2021, prior to that neither it was in the knowledge of
appellants nor it came on record that respondent has passed
away. However, soon after giving information of death of
respondent, applications have been filed on 29.01.2021. It has
been prayed that in such circumstances, the delay in filing
applications may be condoned and the appeal may allow to be
continued against legal representatives of deceased respondent by
taking them on record.
11. Since, the son of the deceased respondent namely
Sh.Harphool Singh has already appeared through advocate and
filed application under Order 22 Rule 10(A) on 16.01.2021, copies
of all three applications were served upon him. He has filed reply
to the effect that the respondent had passed away on 15.01.2012
whereas this second appeal has been filed on 13.02.2012, hence
this appeal was filed against the dead person and as such the
same is not maintainable, accordingly, the appeal be dismissed.
Reliance has been placed upon the judgment of the Hon'ble Apex
Court in case of Gurucharan Singh Vs. Surjit Singh and anr.
Reported in [2012 (13) SCC 530].
12. Heard counsel for both parties and perused the record.
On perusal of the record of present appeal, it transpires that
this appeal was presented on 13.02.2012. Then vide order dated
17.02.2012, notices were issued to respondent and in the
meanwhile execution of the impugned decree for specific
(4 of 7) [CSA-102/2012]
performance was stayed. Notices have returned with report dated
16.01.2013 that on the house of respondent-Kajodmal his son
Harphool Singh was found and accepted the notices and he
resides in joint family. There is no report on notices that the
respondent has passed away. It also appears from record that the
respondent's son Harphool Singh filed his Vakalatnama on
12.02.2013 but he never informed on record about the death of
respondent-Kajodmal who happens to be his father. First time, he
has filed an application under Order 22 Rule 10(A) on 16.01.2021
giving information on record that respondent has passed away
way back on 15.01.2012. Thereafter, immediately appellants have
taken steps to bring legal representatives of deceased respondent
on record by filing application on 29.01.2021 and for seeking
condonation of delay.
13. In that aforementioned factual matrix, there is nothing on
record to assume that appellants were having knowledge about
the death of respondent on 15.01.2012 rather it appears that
appellants came to know about the death of respondent only on
16.01.2021, after filing application under Order 22 Rule 10(A) by
and on behalf of respondent. Thus, the delay, in filing application
for taking legal representatives of deceased respondent on
record, may not be said to be deliberate or intentional nor can be
assumed to be suffered from mala fides rather the same seems to
be bona fide and circumstantial for reasons mentioned
hereinabove.
14. The Hon'ble Supreme Court in case of Ram Nath Sao Vs.
Gobardhan Sao [(2002) 3 SCC 195] has observed that
expression "sufficient cause" within the meaning of Section 5 of
the Limitation Act, 1963 or Order 22 Rule 9 CPC or any other
(5 of 7) [CSA-102/2012]
similar provision should receive a liberal construction so as to
advance substantial justice when no negligene or inaction or want
of bona fides is imputable to a party.
In another case of Balwant Singh Vs. Jagdish Singh
[(2010) 8 SCC 685] it has been observed by the Hon'ble
Supreme Court that a liberal construction of the expression
"sufficient cause" is intended to advance substantial justice which
itself presupposes no negligene or inaction on the part of
applicant, to whom want of bona fide is imputable. The expression
"sufficient cause" implies the presence of legal and adequate
reasons. The word "sufficient" means adequate enough, as much
as may be necessary to answer the purpose intended. Even if the
term "sufficient cause" has to receive liberal construction, it must
squarely fall within the concept of reasonable time and proper
conduct of the party concerned.
15. Having considered the facts of the present case at hand and
following the proposition of law as propounded by the Hon'ble
Supreme Court to take a liberal interpretation of the "sufficient
cause" and the endeavour of the Court should be to have an
approach to advance substantial justice with parties, this Court
prima facie finds that the delay in filing application deserves to be
condoned and consequentially legal representatives of the
deceased respondent may be allowed to take on record so as to
hear this appeal on merits.
16. As far as, the judgment of the Hon'ble Supreme Court in
case of Gurucharan Singh (Supra) on which the respondent has
placed reliance is concerned, there is no disagreement to the
proposition of law propounded therein. In that case, the S.L.P. was
filed against the dead person. On noticing this fact, appellants
(6 of 7) [CSA-102/2012]
have filed application for seeking substitution of legal
representatives of deceased respondent, the Hon'ble Supreme
Court observed that instead of allowing substitution, an
application should have been filed seeking amendment in the
memo of appeal, by impleading legal representatives of deceased
respondent as party. However, the Hon'ble Supreme Court treated
the application for substitution as application for amendment and
taking a liberal view, the delay in filing the application was allowed
to be condoned and the appeal was allowed to be amended so as
to hear on merits.
17. Having considered the nature of impugned decree and facts
and circumstances, this Court is satisfied that there is sufficient
cause for appellants to file application after a considerable delay
and the same deserves to be condoned. In order to consider and
decide the present appeal on merits, it is necessary to take legal
representatives of deceased respondent on record. Hence applying
the ratio decidendi as propounded by the Hon'ble Supreme Court
in case of Gurucharan Singh (Supra), the application filed by
appellants under Order 22 Rule 4 is treated as application for
seeking amendment in the appeal and accordingly, the same is
allowed. Legal representatives of deceased respondent are taken
on record and appeal is allowed to continue against legal
representatives of the deceased respondent.
18. Amended cause title of the memo of appeal is directed to be
taken on record and Registry may place the same at an
appropriate place.
19. Accordingly, applications (I.A.Nos. 1/2021, 2/2021, 3/2021
and 4/2021) stand disposed of.
(7 of 7) [CSA-102/2012]
20. Respondent No.1/1-Sh. Harphool Singh has already appeard,
hence notices be issued to remaining respondent Nos. 1/2 to 1/6
by both modes, ordinary as well as registered post.
21. Learned counsel appearing for respondent No.1/1 may seek
instructions to appear on behalf of remaining respondents as well.
22. In the meanwhile, interim stay order dated 17.02.2012 shall
remain continue.
(SUDESH BANSAL),J
SACHIN/21
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