ABHIRAM RAI Vs. BISHWANA

JUDGEMENT

(1.) RAJES Kumar, J. Heard Sri M. P. Singh, learned Counsel for the appellant and Sri Sanjay Goswami, learned Counsel for the respondent.

(2.) UNDISPUTEDLY, the sole respondent Bishwanath Rai died on 2nd October, 1988. Since no steps had been taken to substitute his heirs an abatement application No. 240190 of 2006 has -been filed on 15. 11. 2006. The said application was allowed vide order dated 11. 12. 2006. However, the order dated 11. 12. 2006 has been recalled vide order dated 23. 11. 2007. The appellant moved the substitution application dated 22nd February, 2007 along with application under Section 5 of the Limitation Act. Affidavit has been filed by Sri Abhiram Rai, appellant, in which it is stated that in the year, 1981 appellant left his native village at Ghazipur for Brahm Vidhyalaya and Ashram, Chhotka Rajpur, District Buxar, Bihar for penance and meditation and did not give any information to his sons about the pendency of the present appeal. It appears that the heirs of late Bishwanath Rai, sole respondent filed application No. 140190 of 2006 for abatement of the appeal. The said application was listed in the cause list dated 11. 12. 2006, but the Counsel did not appear and no intimation of any kind was given about the said application and the appeal was dismissed as abated on 11. 12. 2006. When the appellant came to know about the dismissal of the appeal on or about 13th February, 2007 through remour in the village. Thereupon, the son of the appellant contacted to the appellant about the pendency of the appeal and its dismissal. Soon, thereafter the appellant came to Allahabad and contacted his Counsel Sri B. N. Rai, but he did not give any satisfactory reply. Thereafter he contacted on 20. 2. 2007 Shri Sudhir Kumar Srivastava an Advocate of this Court, who obtained computerized slip about the fate of the case and then appellant came to know that the second appeal has been dismissed. Thereafter, substitution application has been filed. On the basis of the aforesaid averment, it is requested that the delay in filing the substitution application be condoned and the substitution application be allowed. 3. Sri Sanjay Goswami, learned Counsel for the respondent submitted that in the counter affidavit the aforesaid averment has been categorically denied. He submitted that both the appellant and the respondent were pattidar living in the same village and, therefore, it could not be believed that the appellant was not aware about the death of the sole respondent. He further submitted that the substitution application has been moved after a lapse of 18 years of the death and therefore, it is liable to be rejected. 4. In the case of Bhagwan Swaroop and others v. Mool Chand and others, Al R 1983 SC 355, the Apex Court held as follows: " Para 4. It is true that it was incumbent upon the appellant to implead the heirs and legal representatives of deceased respondent No. 1 in time. It is equally true that the appellants were negligent in moving the proper application. We would not question the finding of the High Court that appellant Nos. 2, 3 and 4 knew about the death of the deceased respondent No. 1. This being a suit for partition of joint family property, parties are closely interrelated and it is reasonable to believe that at least some of the appellants must have attended the funeral of deceased respondent No. 1, as contended on behalf of the contesting respondent No. 2. There is some force in the contention that when a specific provision is made as provided in 0. 22, R. 4, a resort to the general provision like 0. 1, R. 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram Singh v. Election Tribunal, Kotah, (1955) 2 SCR 1: (AIR 1955 SC 425), this Court observed that a Code of Civil Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in Kalipar Das v. Bimal Krishna Sen, (1983) 1 SCC 14. Para 8. Accordingly, we allow this appeal set aside the judgment of the High Court dated 27th Jan. , 1982 abating First Appeal No. 67 of 1972 preferred by the present appellants. The application made by the appellants before the High Court as well as the one made by the heirs and legal representatives of deceased respondent No. 1 are allowed and the heirs and legal representatives of deceased respondent No. 1 are substituted and brought on record after setting the abatement and condoning the delay in making the application. The matter is remitted to the High Court for disposal on merits. Appellants shall pay as and by way of costs Rs. 1, 000/- to respondent No. 2 Mool Chand. " 5. In the case of Gangadhar and another v. Shri Rah Kumar, AIR 1983 Sc 1202, the Apex Court held as follows: " Para 3. Now the fact remains that admittedly the appellant's claim that they came to know about the death of the deceased-respondent when the present respondent moved an application for substitution. Rule 10-A which has been added in Order XIII of the Code of Civil Procedure by the Amending Act of 1976 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the Court about it and the Court thereafter shall issue notice to the other party. In the case of an appeal, the word "suit" has to read as "appeal. " This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. The appeal lies dormant for years on end, one cannot expect the other party to be a watchdog for day to day survival of the other party. When the appeal on being notified for hearing is activated, knowledge occasionally dawns that one or the other party has not only died, but the time for substitution has run out and the appeal has abated. In order to see that administration of justice is not thwarted by such technical procedure lapse, this very innovating provision has been introduced, whereby, a duty is cast upon the learned Advocate appearing for the party who comes to know about the death of the party to intimate to the Court about the death of the party represented by the learned Counsel and for this purpose a deeming fiction is introduced that-the contract between dead client and lawyer subsists to the limited extent after the death of the client. Para 6. Sole respondent died on April 19, 1980. His adopted son applied for substitution which included intimation to the Court of the death of the respondent as envisaged by Rule 10a on July 1, 1981, that is nearly one year and six weeks after the death of his adopting father and promptly within two weeks appellants moved 1. A. No. 2110 of 1981. And it is not made clear when notice of IA No. 1980/81 moved by the adopted son was served upon the appellants or their learned advocate. The legislative intention of casting a burden on the learned Advocate of a party to give intimation of the death of the party represented by him and for this limited purpose to introduce a deeming fiction of the contract being kept subsisting between the learned Advocate and the deceased party was that the other party may not be taken unawares at the time of hearing of the appeal by springing surprise on it that the respondent is dead and appeal has abated. In order to avoid procedural justice scoring a march over substantial justice Rule 10awas introduced by the Code of Civil Procedure (Amendment) Act of 1976 which came into force on February 1, 1977. Unfortunately, the learned Judge took no notice of the wholesome provision and fell back on the earlier legal position which automatically stands modified by the new provision and reached on unsustainable conclusion. In fact, in a fact situation as the present one, we may preferably refer to Bhagwan Swaroop v. Mool Chand, (1983) 2 SCC 132: (AIR 1983 SC 355 ). The view taken in that case would unquestionably show that the High Court was in error in refusing to set aside abatement. We are of the opinion that the earliest knowledge about the death of the deceased-respondent can be attributed to the appellants on July 1, 1981 when Raj Kumar applied for substitution. Promptly within two weeks the application for substitution was made by the appellants. Therefore, it is satisfactorily established that the appellants were prevented by a sufficient cause in making the application for substitution within the prescribed period of limitation and the delay deserves to be condoned. " 6. In the present case, no information has been given by the Counsel for the respondent about the death of the party under Rule 10-A, which has been added in the Order 13 of the Code of Civil Procedure by the amending Act, 1976. In the circumstances, there is no reason to disbelieve the averment made by the appellant about the date of knowledge of the death of sole respondent Bishwanath Rai. 7. It may be mentioned here that the Apex Court in catena of decisions held that in the matter of condonation of delay pedantic view should not be taken, but a pragmatic and liberal view should be taken. 8. Respectfully, following the decisions of the Apex Court referred herein above, in my view in the interest of justice, delay in filing the application is liable to be condoned and the substitution application is liable to be allowed. 9. In view of the above, substitution application No. 52435 of 2007 is allowed and the abatement application No. 240190 of 2006 is rejected. Appellant is directed to substitute the heirs of the sole respondent in the array of the party. Substitution may be carried on within a period of two weeks. .