Held that appeal not abated; substituted legal heirs; appeals allowed; first appeals remanded to first appellate court for fresh hearing.
Appeals allowed; abatement set aside; legal heirs substituted; first appeals remanded for fresh hearing; decree sheet to be drawn; trial court records returned.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HARI CHAND (DECEASED) THROUGH LRS & ORS ..... Respondents Through: Mr. Arun K. Yadav, Adv. for LRs of R-1.
AND
GULSHAN SINGH ..... Appellant Through: Mr. S.C. Singhal, Adv.
Versus
MUNICIPAL CORPORATION OF DELHI & ANR... Respondents Through: Mr. Arun K. Yadav, Adv. for LRs of R-1.
CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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No.176/2011 (Unique Case ID No.02406C0074232001) of the Court of Senior Civil Judge] of dismissal of the suit filed by the appellant/plaintiff against the two respondents/defendants.
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were not amicably settled, this Court may today, in the order/judgment, while deciding the appeals, also frame substantial question of law.
10. Anandi Devi is the wife of Hari Chand.
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“Memorandum of objections under Order 41 Rule 26 CPC filed on behalf of appellant on 25.02.2017.
It is informed that the respondent No.1 Shri Hari Chand has expired.
Ld. Counsel may file the death certificate and also furnish the details of legal heirs of the respondent No.1 Shri Hari Chand.
Be taken up now for further proceedings on 31.03.2017”; (iii) thereafter, on 31st March, 2017, the following order was passed:
“The death certificate of respondent No.1 not filed. The same be filed on the next date of hearing.
The case is now fixed for further proceedings on 08.05.2017.”;
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(iv) and on 8th May, 2017, the following order was passed:
“List of legal heirs of the deceased respondent No.1 filed. Copy supplied to the opposite side.
Be put up for further proceedings on 05.06.2017” and on 5th June, 2017, the following order was passed:
“Appellant requests for an adjournment as his counsel is not available.
Be taken up now on 25.07.2017 for further proceedings.”
(v) an application under Order XXII Rules 4&9 of the CPC and Section 5 of the Limitation Act, 1963 read with Section 151 of the CPC for substituting the legal heirs of Hari Chand was filed by Gulshan Singh on 21st July, 2017 and was taken up by the First Appellate Court on 25th July, 2017; (vi) the order of 25th July, 2017 shows that the First Appellate Court did not issue notice of the application to the legal heirs of Hari Chand and heard arguments and posted the First Appeal for orders on 4th August, 2017; (vii) orders remained to be passed on 4th August, 2017 and successive dates in this regard were given and finally, vide judgment dated 14th September, 2017, the First Appeal from which Hari Chand Appeal arises has been dismissed as abated, (viii) there is thus no reply on behalf of the legal heirs of Hari Chand to the application filed by Gulshan Singh on 21st July, 2017 under Order XXII Rules 4&9 read with Section 151 CPC and Section 5 of the Limitation Act; (ix) it was the plea of Gulshan Singh in the application aforesaid, (a) that he had no knowledge regarding the demise of Hari Chand and no knowledge regarding the date of death, names and addresses of the legal heirs of Hari Chand; (b) that in pursuance to the orders passed by the First Appellate Court, the list of legal heirs was filed by the counsel for the RSA Nos.282/2017 & 63/2018 Page 6 of 16
deceased Hari Chand only on 8th May, 2017 and the application was being moved thereafter; (c) that in these circumstances, the abatement, if any was liable to be set aside and the delay in moving the application liable to be condoned; and, (x) the application aforesaid was accompanied with an affidavit of Gulshan Singh.
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parties being neighbours, Gulshan Singh ought to have known about the death of Hari Chand and the heirs of Hari Chand and the stand of Gulshan Singh that he had no knowledge in this regard was not credible; (xi) that the appeal abated on 2nd May, 2017 and Gulshan Singh ought to have moved an application for setting aside the abatement by 3rd July, 2017 but failed to do so till 21st July, 2017; (xii) that the only explanation offered was, that till 8th May, 2017, Gulshan Singh did not know about the list of legal heirs; (xiii) that the same was not a valid explanation and not a sufficient cause for applying for setting aside of the abatement. Resultantly, the application under Order XXII Rules 4&9 of the CPC and under Section 5 of the Limitation Act, 1963 read with Section 151 of the CPC was dismissed and resultantly the first appeal dismissed as abated.
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July,2017; and, (e) that the First Appeal from which Hari Chand Appeal arises was listed on 5th June, 2017 and the application aforesaid, which was ready on 31st May, 2017, ought to have been filed on that date at least and merely because the counsel for Gulshan Singh was not available on 5th June, 2017, did not prevent the filing of the application.
(I) Whether on account of orders dated 28th February, 2017, 31st March, 2017 and 8th May, 2017 reproduced above, there was any delay on the part of Gulshan Singh in applying for substitution of legal heirs of Hari Chand.
(II) Whether the refusal of the First Appellate Court to condone the delay in applying for substitution and in dismissing the appeal as abated is in contravention of the well settled legal principles applicable and perverse.
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(A) Order XXII Rule 4 read with Order XXII Rule 11, in sub-rule (5) of Rule 4 provides that where 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 within the period specified in the Limitation Act, 1963 and the suit has in consequence abated and the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963, for setting aside the abatement and for the admission of the application for substitution under section 5 of the Limitation 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 Act, the Court shall, in considering the said application under the said Section 5, have due regard to the fact of such ignorance, if proved.
(B) Vide Amendment of the CPC of the year 1976 Rule 10A was inserted in Order XXII imposing a duty on the pleader appearing for a party to the suit to inform the Court about the demise of that party. Order XXII Rule 10A of the CPC further requires that the Court “shall there upon give notice of such death to the other party” i.e. Order XXII Rule 10A CPC mandates the Court to inform the other party of such death.
(C) The counsel for Hari Chand, in compliance of the duty imposed upon him under Rule 10A of Order XXII of CPC supra, on 28th February, 2017, informed the First Appellate Court of demise of Hari Chand. However, a perusal of the order dated 28th February, 2017 would show the Court, instead of informing the counsel for Gulshan
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Singh of the same, required the counsel for deceased Hari Chand to file the death certificate of Hari Chand and also furnish the details of legal heirs of Hari Chand.
(D) The counsel for deceased Hari Chand, on 28th February, 2017 did not contend that Gulshan Singh being a neighbour was aware of the death and the legal heirs or that the duty imposed on him under Rule 10A of Order XXII of CPC did not extend to what he was being called to do. On the contrary, the counsel for deceased Hari Chand acquiesced to the order dated 28th February, 2017.
(E) Not only so, on the next date of hearing i.e. 31st March, 2017, the daughter of Hari Chand appeared in person and a perusal of the order of that date shows that though she had not filed the death certificate and particulars of the legal heirs but acquiesced in the direction issued on that date for filing thereof on the next date of hearing i.e. 8th May, 2017.
(F) On 8th May, 2017, the counsel for deceased Hari Chand complied with the directions issued on 28th February, 2018 and 31st March, 2017 and furnished the death certificate and list of legal heirs of Hari Chand and a copy of which was supplied to the counsel for Gulshan Singh and the proceedings adjourned to 5th June, 2017.
(G) I may at this stage notice that the list of legal heirs of Hari Chand comprise, besides his wife Anandi Devi and daughter Sudesh who was appearing as attorney, also four sons and two other daughters.
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(H) The counsel for legal heirs of Hari Chand, on enquiry, states that none of the four sons of Hari Chand were/are residing in the property which was adjoining to the property of Gulshan Singh and only Hari Chand along with his wife and two unmarried daughters was residing therein.
(I) In this scenario, it cannot be said that Gulshan Singh, on account of being a neighbour of Hari Chand, ought to have known about the names and addresses of all the legal heirs of Hari Chand. Even otherwise, with the changing society, it cannot be said today that people living in adjoining houses would know each other.
(J) Moreover, once the Court, on 28th February, 2017 on being informed of the demise of Hari Chand had directed the counsel for deceased Hari Chand to file death certificate and details of legal heirs, it could safely be assumed that Gulshan Singh and/or his Advocates were required to take steps for substitution only after the direction issued on 28th February, 2017 was complied with. The Court cannot, on the one hand by passing such orders, convey such impression to the litigants and the Advocates and on the other hand, decide adversely against the Advocates and litigants on not acting otherwise.
(K) Seen in this light, limitation provided for substitution in Article 120 of the Schedule to the Limitation Act, of 90 days, though provided to commence from the date of the death and the limitation provided in Article 121 of the Schedule to the Limitation Act of 60 days commencing from the date of abatement, for an application for setting
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aside of the abatement, could not be said to have commenced running till 8th May, 2017, when the particulars were so furnished.
(L) If the limitation for substitution were to be counted therefrom, the application under Order XXII Rules 4 & 9 of the CPC and Section 5 of the Limitation Act filed on 21st July, 2017 was within time.
(M) Even otherwise, the Advocate representing Gulshan Singh in the First Appellate Court, is a regular, respected, experienced Advocate and the mistake on his part in not presenting the application immediately after preparing the same on 31st May, 2017 is understandable.
(N) This Court in Sheri Farid Vs. Khilar Singh MANU/DE/4297/2017 has held that the incorporation of Rule 10A to Order XXII of CPC has to be taken to its logical conclusion and cannot be permitted to remain an empty legislative exercise.
(O) It has been held in Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (2008) 8 SCC 321 and Swami Prasad Vs. Lakhan Singh (2010) 15 SCC 152 that the Courts should be reluctant to put an end to a dispute especially at the appellate stage on such technical pleas of abatement and should be liberal in condoning the delay in taking such steps.
(P) The suit from which the First Appeal arose, was not only against Hari Chand but also against MCD, with the reliefs of permanent injunction against illegal and unauthorised construction in the property of Hari Chand/Anandi Devi and of removal of windows
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opened in the passage aforesaid being claimed, both against Hari Chand and MCD. There is no discussion in the impugned judgment, whether abatement, even if any of the appeal against Hari Chand, also resulted in abatement of the appeal insofar as against MCD. For this reason also, it is felt that the impugned judgment suffers from fallacy.
(Q) In the facts of the present case, when two appeals were interconnected and evidence led in the suit from which the appeal which has been dismissed as abated had arisen was being referred to while disposing of the other First Appeal, the discretion for condonation of delay should even otherwise have been exercised in favour of Gulshan Singh.
Court, when they are themselves guilty of unauthorised construction and as to why reliefs with respect to unauthorised construction, if any should be granted.
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accordance with law with respect to unauthorised construction in both the properties, particularly affecting the portions subject matter of these litigations.
Complex, New Delhi on 12th October, 2018.
RAJIV SAHAI ENDLAW, J.
AUGUST 17, 2018 ‘bs’..
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3 issues framed by the court
Whether the court should condone the delay in applying for substitution of legal heirs when the other party was informed of death by its own counsel.
Whether the First Appellate Court erred in dismissing the appeal as abated without applying liberal principles for condoning procedural delays.
Whether interim judgments referring to evidence from an abated suit can be relied upon when the abatement is set aside.
Colour shows how this judgement treated each authority
Sheri Farid Vs. Khilar SinghDistinguished¶91
MANU/DE/4297/2017
Perumon Bhagvathy DevaswomDistinguished¶92
(2008) 8 SCC 321 · Who else cites this
Swami Prasad Vs. Lakhan SinghDistinguished¶92
(2010) 15 SCC 152 · Who else cites this
3 provisions across 2 enactments
GULSHAN SINGH
HARI CHAND (DECEASED) THROUGH LRS & ORS
MUNICIPAL CORPORATION OF DELHI
ANANDI DEVI
RAJIV SAHAI ENDLAW
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
