JAI RAM Vs. JAGAT RAM ALIAS MANGAT RAM

JUDGEMENT

(1.) Above appeal is pending in this Court since 1978. Jai Ram one of the appellants died a year ago. An application under O.22, Rr.3 and 9 of the Code of Civil Procedure for setting aside the abatement and bringing on record legal heirs of Jai Ram along with another application filed under S.5 of the Limitation Act for condoning the delay in moving the aforesaid application for setting aside abatement were filed. The ground for condoning the delay, as alleged is that on 6/08/1990 when the case was listed for hearing, Clerk of Counsel for the appellant gave intimation to the appellant. Balbir Singh son of Jai Ram respondent when came to Chandigarh and informed about the death of Jai Ram which had taken place a year ago. He was directed to get power of attorney of the legal heirs of Jai Ram. The appellants were not aware of the legal complication that the legal heirs of the appellant were to be brought on record. They were also not aware of the period of limitation. Controverting the allegations made in the application, the respondents asserted that the appellants were educated persons and the assertions made were wrong. I have heard counsel for the parties.

(2.) The contention of the learned Counsel for the appellants is that while interpreting S.5 of the Limitation Act, the Courts have been liberal and the application aforesaid should be allowed. In support of this contention, he has relied upon the decision of Gujarat High Court in M/s. Mohatta Brothers Ahmedabad v. Sheth Chaturbhaidas Chiman Lal, AIR 1982 Gujarat 96. It was observed that the party seeking condonation of delay must show "sufficient cause" for excusing the delay and that in dealing with such an application the Court should take a liberal view and should not be over strict and highly technical so as to sacrifice the cause of substantial justice. It was further observed that at the same time if there is gross negligence or inaction indicative of desire on the part of the plaintiff to abandon the cause or give up the litigation, the Court would be justified in refusing to condone the delay. On the other hand, the learned Counsel for the respondents has relied upon the decision of Madhya Pradesh High Court in Manorama v. Chittar, AIR 1990 Madhya Pradesh 112. In that case it was held that abatement has to be set aside by the Court only if it is proved that the party was prevented by any sufficient cause. It is for the applicant to prove absence of want of care and negligence on his part. Such an application cannot be allowed or dismissed by taking recourse to conjectures. Application under S.5 of the Limitation Act has to be allowed in the discretion of the Court and such discretion is to be exercised only if the applicant satisfies by a sufficient cause for not making the application within the prescribed period. The matter was considered by the Supreme Court in Sital Prasad Saxena (Dead) by LRs. v. Union of India, AIR 1985 SC 1 : 1986 Lab IC 392, wherein it was observed that there was no question of construing the expression 'sufficient cause' liberally. The Court need not be over strict in accepting such proof of the suggested cause as it would accept for holding certain facts established, one of the reasons being that the question does not relate to the merits of the dispute between the parties. The Court is not to accept readily whatever is alleged to explain away his default. It has to scrutinize the allegations and it will be fully justified for considering the merits of the evidence led to establish the cause for the delay in applying within time, for impleading the legal heirs of the deceased or for setting aside the abatement.

(3.) Some other cases have also been cited at the bar, but those cases relate to bringing on record legal representatives of the defendants or the respondents. These cases are Bhagwan Swaroop v. Mool Chand, AIR 1983 SC 355 and Ram Sumiran v. D.D.C., 1985 (1) CLJ 652 (SC). The Civil Procedure Code having been amended as far as bringing on record the legal representatives of the defendants or the respondents for the disposal of the matter without bringing such legal representatives on the record; whereas position of the case where plaintiff or the appellant had died and legal heirs are not brought on record and there is abatement is different and continues to be as before. The abatement it automatic, if legal heirs are not brought on record on the death of the plaintiff of the appellant. It is in that sense that it is to be examined as to whether sufficient cause has been shown for not filing the application for bringing on record legal representatives within the period prescribed. In other words, whether the applicant was prevented by sufficient cause from filing such an application.