RAM RATAN Vs. RAM KUNWAR

JUDGEMENT

(1.) The view taken by the learned District Judge in refusing to condone the delay, in filing of the appeal before him, appears to be unduly harsh.

(2.) The following are the undisputed facts. The suit was dismissed on 12-7-1971. The sole plaintiff died on 26-8-1971. According to the learned District Judge, after excluding the period spent in obtaining the copy of the judgment and decree, the appeal should have been filed by 3-9-1971. The appeal is said to have been filed on 6-9-1971 in the name of the deceased plaintiff. The appellant, his son, filed another appeal on 12-9-1971 after consulting his counsel. The 'reason' given for this delay in filing the appeal was said to be the fact that the 13th day obsequies of the deceased plaintiff took place on 6-9-1971 and the appellant remained busy thereafter up to 12-9-1971 and could not, therefore, contact the counsel before 12-9-1971 and the appeal could not accordingly be filed before 13-9-1971. The learned District Judge says that there is no explanation for the delay between 7-9-1971 and 12-9-1971. On that reasoning there would be no explanation for not filing the appeal on or before 3-9-1971 also, for the plaintiff had already died on 26-8-1971, and if the appellant could file the appeal on 13-9-1971, he could as well have filed it on 3-9-1971, but that observation proceeds on shutting our eyes to the facts of life. The sole plaintiff having died, nobody else had a right to file the appeal except his legal representatives with the leave of the court. The plaintiff died on 26-8-1971 which was before the expiry of the period of limitation within which he could have filed the appeal if he had continued to live. His death gave the appellant the right to file an appeal and the death occurred on 26-8-1971. It cannot be said that the appellant was in any way negligent or not diligent enough, inasmuch as, he filed the appeal on 13-9-1971 which is even less than one month from the date of the death of the plaintiff. It is obvious that the appellant could not have filed the appeal in place of his deceased father Ram Prasad, who was the plaintiff in the suit, without being permitted to do so by the appellate court as the legal representative of the deceased plaintiff. Learned counsel for the appellant was unable to lay his hands on any provision of Code of Civil Procedure under which an application for such permission may be contemplated, but invited my attention to Art. 120 of the Limitation Act which lays down the limitation for having the legal representative of a deceased plaintiff or appellant or of a deceased defendant respondent made a party as 90 days from the date of the death of the plaintiff-appellant, defendant or respondent, as the case may be. It appears that Art. of the Limitation Act will probably not apply because that contemplates an application for substitution being made either in the suit itself or in the appeal, as the case may be. It does not contemplate a situation whether the plaintiff might have died after the date of the decree dismissing the suit and his legal representatives may be desirous of filing an appeal therefrom. The other reason for not applying that Art. of the Limitation Act seems to be that there does not appear to be any specific provision in the Code of Civil Procedure for moving an application for permission to file an appeal by the legal representative of a deceased party, who dies after judgment from which appeal is sought to be filed.

(3.) Be that as it may, it seems clear to me that the fact that the sole plaintiff died on 26-8-1971 was sufficient to have prevented the appellant to file the appeal on any days prior to the date on which he filed it, viz. 13-9-1971. In such matters a period of about a month is the least which should be allowed for mourning.