MAHADEO AND ORS. Vs. DEO CHAND AND ORS.

JUDGEMENT

(1.) Heard on I.A. No. 8911/13, appellants' application under Section 5 of the Limitation Act for condoning the delay in filing the I.A. No. 8910/13, an application under Order 22, Rule 9 of CPC for setting aside the abatement of this appeal caused on non-taking the appropriate steps to substitute the legal representatives of deceased, appellant No. 1, Mahadeo on record as he died on the aforesaid date 31-8-1997 and the step to substitute his legal representatives has been taken on 2-8-2013. The averments of the I.A. have been seriously disputed on behalf of the respondent No. 1 by filing its reply as Document No. 5911/14. Some papers are also annexed with such reply. Shri K.S. Jha submits that he is also representing the proposed legal representatives of deceased appellant No. 1 mentioned in I.A. No. 8909/13, an application under Order 22, Rule 4 of CPC (in oral argument submits that in fact this I.A. is under Order 22, Rule 3 of CPC but due to oversight the same has been stated to be Rule 4 of CPC).

(2.) The Counsel for the appellants as well as for the proposed legal representatives of appellant No. 1 submits that subsequent to death of appellant No. 1, the remaining appellants had consulted amongst themselves to substitute the legal representatives of deceased appellant No. 1 but they being rustic villagers were not having knowledge of the technicalities of law regarding procedure to substitute the legal representatives on record and in such premises, they were under impression that appellant Nos. 2 and 3 are still prosecuting this appeal with respect of the cause involved in it, hence there is no necessity to substitute the names of legal representatives of appellant No. 1 on record. Accordingly, in such circumstance such step could not be taken within the prescribed period of ninety days, subsequent to that upto 2-8-2013 in near about fifteen years. He said that keeping in view the stake of the litigation, by adopting some lenient view, the I.A. be considered and be allowed and it be decided on merits. The same may not be thrown away only on account of technical question of limitation and prayed to allow this I.A.

(3.) On the other hand, responding the aforesaid arguments, Counsel for respondent No. 1 after taking me through the averments of his reply argued that it is apparent case of negligence on the part of the remaining appellants as well as proposed legal representatives of deceased, appellant No. 1. In continuation, he said that it is apparent from the record that the appeal was filed in the month of May, 1997 and in the month of August, 1997 the appellant No. 1 had passed away and this fact was known to the remaining appellants as well as the proposed legal representatives of the deceased appellant No. 1, but in spite that none of them had taken any step to substitute his legal representatives on record. He said that in this regard to show the factum of the death of appellant No. 1 before the Court on filing the application, I.A. No. 1950/09 on behalf of the respondent No. 1 for early hearing in the Registry on 12-2-09, such fact was also mentioned but in spite that no steps were taken in last near about four years to substitute the legal representatives of such deceased, appellant No. 1. So, firstly he said that such long delay in filing the proceeding for setting aside abatement of the appellant, who had died in the year 1997, after expiry of the ninety days from the date of death of appellant No. 1 could not be condoned unless sufficient cause admissible under the law as per requirement of Section 5 of the Limitation Act is made out. He said that it is settled proposition of law that on non taking the appropriate steps before expiry of the period of limitation by the concerning party, a valuable right comes in existence in favour of the other party like respondent No. 1 and such right could not be interfered lightly mere on the flimsy or inadmissible grounds. In the case at hand, it is apparent that the factum of the death of respondent No. 1 was very well in the knowledge of the remaining appellants as well as of the proposed legal representatives of the respondent No. 1 and in any case such fact was pointed out on behalf of the respondent No. 1 by way of aforesaid application of early hearing but in spite that in last more than fifteen years, no step has been taken on behalf of the appellant Nos. 2 and 3 or the legal representatives of deceased, appellant No. 1 to substitute their names at the place of deceased, appellant No. 1. So in such premises, whatsoever cause has been stated in I.A. could not be treated to be sufficient cause as per requirement of Section 5 of the Limitation Act and prayed for dismissal of this I.A.