NADIR SHAH Vs. SHASHI RAJAN

JUDGEMENT

(1.) Vide order dated 17th September, 1998, the trial court dismissed the application under Order 22 Rule 3 CPC for impleadment of legal heirs of the plaintiff and other applications under Section 5 of the Limitation Act read with Order 22 Rule 4(5) and Section 151 CPC for condonation of delay in filing the above-said application and under Order I Rule 10 CPC moved by applicant Nadir Shah. Adumbrated in brief, the facts of the case are these. Secunder Shah expired on 7th February, 1994, leaving behind him, his wife, Gulshan Ara Begum, three daughters, Shamshad Sultana, Munwar Sultana and Tajbar Sultana and one son, Nadir Shah. According to the plaintiffs/applicants, the right to sue survived in their favour and therefore, they moved the above-said applications on April, 1996. There was a delay of 739 days in filing the application under Order 22 Rule 3.

(2.) The appellants have explained the delay as follows. Secunder Shah purchased the suit property for the benefit of his family including himself. The respondent/defendant illegally occupied the above-mentioned property. In order to recover the possession of the property from the said trespassers, a suit for recovery of possession was filed. Secunder Shah was a resident of North Lakhimpur, Assam. He was unable to personally look after his interest in the property, therefore, he handed over the original title deed and other documents to Aimil Shah, his son-in-law with the instructions to proceed with the above-said litigation and look after his interest in the suit property. Nadir Shah, his son, due to his pre-occupation in his business in Assam also requested Aimil Shah to proceed with the above-said litigation on behalf of his father-in-law. Initially, the suit was filed before the Hon'ble High Court. Thereafter, due to enhancement of pecuniary jurisdiction of the District Court, it was transferred to the District Court. Since the case was dragging for more than 10 years, therefore, Aimil Shah lost track of the above litigation. Secunder Shah gave Power of Attorney dated 6th January, 1994, whereby he granted authority to Aimil Shah to prosecute the above-said matter and depose facts on his behalf before the Court. However, Aimil Shah misplaced the above- said power of attorney dated 6th January, 1994. With the bona fide intention of not to display the above-said matter, another Power of Attorney dated 30th August, 1995 was prepared. In the meantime, original Power of Attorney dated 6th January, 1994 was traced out but due to inadvertence power of attorney dated 30th August, 1995 was filed before this court at the time of recording of evidence. It is also explained that Secunder Shah suffered burn injuries and ultimately succumbed to those on 7th February, 1994.

(3.) Shamshad Sultana, daughter of Secunder Shah was suffering from kidney disease and her both kidneys were not functioning. She was in Delhi along with her mother for her treatment in Ganga Ram Hospital. The doctors had advised to keep her away from any kind of tension and mental pain. The certificate issued by the doctors was annexed with the application. Nadir Shah with the benevolent intention to not to cause any pain to her sister, Shamshad Sultana and for her welfare had quiet funeral of his father. He did not inform about the death of his father to Aimil Shah with the bona fide intention that he might inform the death of their father to Shamshad Sultana and Gulshan Ara his sister and mother respectively, who would not be able to tolerate the shock and pain as Aimil Shah was looking after Shamshad Sultana staying in Delhi for continuous treatment/dialysis. Neither Aimil Shah nor his wife, Munwar Sultana attended the funeral of Secunder Shah.