UNION OF INDIA versus RAM CHARAN & OTHERS

3 S.C.R. SUPREME COURT REPORTS

UNION OF INDIA

RAM CHARAN & OTHERS

(K. SuBBA R.i.o, RAGHUBAR DAYAL and J. R. MUDHOLKAR JJ.)

Abat•mtnl of apptal-Dtath of re•pondent-A.pplicalio11 by apptllant to bri1!Jl legal repreJ<entatives of respondent on rteord-Application fil•a after lapse of thr<e months after death-Whal i• "•uffloient cause"-Limihtion for application to ••t aoide abatement •tarls from dalt of death and not from date of apptl-lant' •knowledge of death-Scope of•. 151 O.P.0.-lndia Limi-tation Act, 1908 (9 of 1908) Art, 171- Oodt of Oillil Procadvro 1908 (Acl. 5 of 1908), 0.22, a. 151, "· 4,9,11.

Ram Charan obtained money decree against the Union of India. An appeal was filed against that decree in the High C'.ourt. Ram Charan respondent died onjuly 21, 1957. On March 18, 1958, an application was filed in the High Court under 0.22, R.4 read with s. 151 of the Code by Civil Procedure stating that the respondent had died on July 21, 1957 and the Di-visional Engineer, Telegraphs, learnt of his death on February 3, 1958 and the deceased had left his widow and an adqpted son as his legal representatives. prayer was made to bring the legal respresentatives of the deceased on record. The High· Court dismissed the applicati•m on the ground that the appel-lant had failed to show sufficient cause for not bringing the legal representatives of the deceased on record within time. The appeal was also di •missed. In the appeal before this Court, it was contended on behalf of the appellant that the mere ignorance of death of the respondent was sufficient cause for the appellant's inability to apply for the implcading of legal representatives within time unless the appellant was guilty of some negli-:ence or some act or omission which led to delay in his making the application, that once the respondent was served no duty was cast on the appellant to make fmther en-quiries ab<>ut the state of health of the respondent, that expres-sion 'sufficient .cause' should be liberally construed in order to advance the cause of justice, that the Court itself had inherent power to add legal representative• to do justice to the party and" that the High Court misapplied the decision of the Full Bench

Union of lndi2 \. v. Rmn Char•n

in Firm Dittu Ram Eyedan v. Om Pres• Co. Ltd. to the facts of the present case.

Held that limitation for an application to set aside the abatement of an appeal starts on the death of the respondent and not from the date of the knowledge thereof.

Held also that the Court is not to invoke its inherent powers under s. 151 C.P:C. for the purpose of impleadinl! legal representatives of deceased respondent, if the suit had abated on account of the appellant not appropriate steps within time to bring representatives of the deceased on the record and when its application for setting aside abate-ment was not allowed on account of its failure to satisfy the court that there was sufficient cause for. not impleadin<: the legal representatives <>f the deceased in time and for not apply-ing for setting aside of the abatement within time.

He1il also that the expression 'sufficient cause' is not to be liberally construed either because the party in default was. the Government or because the question arose in connection with the impleading of the legal representatives of the deceased res-pondent. The Court should not rea 1ily accept whatever is alleged to explain way the default. The delay in making the application should not be for reasons which indicate the negli-gence of the party making the applicati0/11 in not taking cer-tain steps which he could have and should have taken. The court has to be satisfied that there were certain valid reasons for the ..applicant not knowing the death within reasonable time. The bare statement of the applicant is not enough.Firm Dittu Rann Eyedan v. Om Press Co. Ltd. ( 1960) I l.L.R. Punjab. 935 (F.B.), State of Punjab v. Nathu Ram [1962] 2 S.C R. 636 and Jhanda Singh v. Gurmukh Singh C. A. No. 344 of 1956 dated 10.4.62, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 115 of 1962.

Appfals by special leave from the judgments and orders dated February 16,26, 1960, of the Pun-jab High Court in Civil Misc. No. of 1959 . and Regular First Appeal No. 44 of 1955.

D.R. Prem and P.D. Menon, for the appellant.

3 S.C.R. SUPREME COURT REPORTS

Veda Vyas", K. K. Jain, for P.O. Khanna, for respondent.

1963. April 30. The Judgment of the Court was. delivered by

RAGHUBAR DAYAL J.-The facts leading to this appeal, by special leave, against the orders, of the High Court of Puujab are these. Kam Charan obtaiued decree for money against the Union of India on January 6, 1955. The Union of India pre· sented an appeal on April 6, 1955, in the High Court. Ram Charan, the sole respondent, filed cross-objec-tion on July 31, 1955. On February 6, 1956 the High Court passed an order in connection with the surety bond. Ram Charan was represented at the pro· ceedings. Ram Charan died on July :!l, 1957.

On March 18, 1958 an application was pre-sented to the High Court on behalf of the appellant under O. XXII, r. 4, read with s. 151, Code of Civil Procedure, stating that Ram Charan died on July 21, 1957, that the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt of his death on February 3, 1958, and that the deceased had left as his legal representatives, an adopted son and widow. It was prayed that these legal representatives be brought on record in the place of the deceased respondent. The affidavit filed in support of this afJplication did not convey any further information and it was sole-mnly affirmed by the deponent that the averments in the affidavit were true to his belief. The depo· nent was no other than the Divisional Engineer, · Telegraphs, Ambala Cantonment.

On May 13, 1958; the widow of Ram Charan was applied that she alone the legal representative of Ram Charan under will and that the alleged son was Th.e adopted not the legal representative. appellant's application for ,bringing on record. the

U•itn of Indio v.' &.m C"-ran

R11hu6ar Dayal J.

IM U•i•,../ lnili• Y. R .. .....

legal representatives of the deceased Ram Charan on came up for hearing May 14, 1958. The Court orde1ed the application to be heard at the time of the hearing of the appeal as it was pointed out that there was difference of opinion in the Court as to whether limitation under 0. XXU of the Code started from the date of death or from the date of knowledge of death. on an application on behalf of the legal representatives, it was ordered that the question of abatement be decided first and thereafter the printing of the record be on hand. The application for substitution came up for decision on Febn.;ary Hi, 1960. It was dismissed, the Court holding that the Union of India had failed to show that it was prevented from any sufficient cause from continuing the appeal. On February 26, 19150, the appeal itself was dismissed as having abated.

On May 14, 1960, an application for leave to was appeal to the Supreme Court presented to the High Court. The heading of the application was des-cribed to be one for leave to the Supreme Court from the judgment dated February 16, 1960, in C.M.No. 1212/C of 1959 in R.F.A. No. 44 of 1955. This appli· cation was rejected on May 17, l9ti0. Thereafter, an application Cor special leave was filed in this Court. was Special leave prayed for appealing from the judg· ment of the High Court of Punjab in R.F.A.No.44 of 1955 and C.M. No. 121:2-C/59 dated February I 6/26 of 1960. The order granting special leave said:''That special leave be and is hereby granted to the petitioner to appeal to this Court from the j11dgment and order dated 16th day of February, 1960 and 26th day of February, 1960 of the Punjab High Comt in Civil Miscellaneous No. 1212-C of 1959 and Regular First Appeal No. 44 of 1955."

preliminary objection was taken to the effect that the appellant having not applied to the·

the·

High Court for leave to appeal against the order dated February 26, 1960 in Regular First Appeal, that order had become final and special leave could not be asked for this Court in view of Order XIII, r. 2 of the Supreme Court Rules, 1950, the rule heiag:

"Where an appeal lies to the Supreme Court on certificate issued by the High Court or other tribunal, no application to the Supreme Court for special leave to appeal shall be enter-tained unless the High Court or tribunal con· cerncd has first been moved and it has refused to grant the certificate."

We do not see any force in this objection and reject it. The application for leave to appeal, though descnbed as one against the judgment in the mis-cellaneous case and not against the order in the regular appeal, stated in paragraph 1 that the regular first appeal had been ordered to have abated and in was fit case paragraph 3 that it in which necessary certificate for filing an appeal against the judgment passed by the Court in regular first appeal No. 44 of 1955 be granted. Both these statements refer to the proceedings in connection with the regular first appeal and not of the order on the miscellaneous application for substitution. Ground No. 2 referred to those proceedings. The application, therefore, was really an application for leave to appeal against both the orders.

The High Court docs appear to have construed that application in this manner. Its order dated · May 17, 1960 stated :

"The appeal was decided as · having abat. ed because the appellant failed to show sufficient cau:ie for not bringing the legal

,,,, J nitm of lnth'• •• Ram '4'h•r•n

l!Jf3 Union oj !nditt v. Rom Choran

representatives of the deceased respondent with-in time." ·

To appreciate the real contention between the parties before us, we may now give in brief, the reasons for the order of the High Court dated February 16, 1960. It .may be pointed out that in the narration of facts the High Court stated that the application dated March 1 7, 1958, was filed under 0. XXII, rr. 4 and 9 read with s. 151 of the Code. 'J he application, as printed ou the record, did not purport to be under r. 9 of O. XXII, C.P.C. · There is not word in the application that the appeal had abated and that the abatement be set aside. The error in this respect seemed to have further led,to 1he error in stating that the reason for the delay given in the application was that the Divisional Engineer,. Telegraphs, came to know about Ram Charan"s deaih on February 3,. l 958, there being no reason mentioned in the application. It was just stated as matter of fact that the Engineer had come to know of the death on February 3, 1958. The order states that some application was presented by the Union of India on May 14, and that it was stated therein that the interval betwern February 3 and March 17, l!J58, was spent in collecting information about the legal representatives of the deceased. This application, however, is not printed in the paper book.

The High Court relied on the Full Bench case of its Court reported in Firm Dittu Ram Eyedan v. Om Press Co. Ltd.,('), which held that ignorance· of the death of the defendant was not sufficient cause for-setting aside the abatement when an appli-cation to bring the legal representatives of the deceased on the record was made after the expiry of the period of limitation, as the law imposed an obliga· tion on. the person applying for bringing the legal representatives of the deceased on .the record and he had, therefore, to show absence of want of care. The (lJ (196D) IJ. L. R.P1lllj 935

3 S.C.R. SUPREME COURT REPORTS

High Court held that the Union of India did not state either in its application dated March 17, 1958, · or in the other application dated May 14, l958, that the Government had not been careless in the matter and had been vi_gilant in keeping itself informed regarding the whereabouts of Kam Charan and that it would not have been difficult for the Government to have come to know of Ram Charan 's death, who lived in Ambala Cantonment, to which place the appeal related.

The contentions raised for the appellant in this Court are :

( 1) That mere ignorance of death of the res-pondent was sufficient cause for the appel-lant's inability to apply for the impleading of the legal representatives within time, unless it be that the appellant was guilty of some negligence or some act or omission which led to the delay in his making the application.

( 2) Once the respondent is served in the first appeal; no duty is cast on the appellant to make regular enquiries about the state of health of the respondent.

(3) The expression 'sufficient cause,.should be liberally construed in order to advance the cause of justice.

(4) The Court itself has inherent power to add representatives to do full justice to the party.

( 5) The High Court misapplied the decision of the Full Bench of its Court to the facts of the present case.

We at once that there is no force in the may s11.y fourth point. The Court is not to invoke its inherent

1963 Union of India v. Ram CluJran Raghubar Day•/ J.

1963 Union •. of In& Rmn Ch•r•n

powers under s. Hil, C.P.C. for the purposes of impleading the legal representatives of deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record 'and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the ahatement within time.

There is no questidn of construing the expres· sion 'sufficient cause' liberally either because'the party in default is the Government or because the question arises in connection with the impleading of the . legal representatives of the deceased respondeut. The provisious of the Code are with view to advance the cause of justice. Of course, the Court, in considering the appellant has established . sufficientcause for his not continuing the suit in time or for noLapplying for the settiug aside of the abate-ment within time, need not be O'(er-strict in expect· ing such proof of the suggested cause as it would accept for holding certain fact established, both be-cause the question does not relate to the merits of the dispute· between the parties and because if the abate-ment is set aside, the merits of the dispute can be determined while, 'if the abatement is not set aside, the appellant is deprived of his proving his claim . on account of his culpable negligence or lack of vigilance. This, however, does not mean that the Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appel-lant's default in applying within time for the implead-iug of the legal representatives of tJ:i.e deceased or for setting aside the abatement.

3 S.C.R. SUPREME CQURT REPORTS

It is true, as contended, that it is no duty of the appellant to make regular from time to time about the health or existence of the- opposite party, but it does not mean that the mere fact of the appel-lant's coming to know of the respondent's death belatedly will, by itself, justify his application for setting aside the abatement. fhat is not the law. Rule 9 of O. XXII of the Code requires the plaintiff was to prove that he prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know of the death of the opposite party is not sufficient. He had to state reasons which, according to him, led to his not know-ing of the dl!ath of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the com:ctness of those .reasons is challenged by the legal representatives of on the deceased who have secured valuable right the abatement of the suit.

It is not necessary to consider whether the High Court applied its earlier Full Bench decision correctly or not when we are to decide the main question urged in this appeal and that being the tirst contention. Rules, 3 and 4 of 0. XXII, C.P.C. lay down respectively the procedure to be followed I in case of death of one of several plaintiffs when the sue right to does not survive to the surviving plaintiffs alone or that of the sole plainti.ff when the right to sue survives or of the death of one of several defen-dants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased . plaintiff or defendant party to the suit. It does not who is say to present the application. Ordinarily it would be the plaintiff, as by the abatement of the. suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such is made within the time application allowed by Jaw, the suit abates so far as the deceased

1961 cr.u. •f r"';. .. . R..,C/aar,. R•1hobn Do,,.Z J.

19b3 Union of India v. Ram Charan Roghub11r Doyal }.

Plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other considera-tions as held by ithis Court in State of Punjab v. Nathu Ram (') and Jhanda Singh v. Gu.rmukh Singh ([2]). Any way, that question does not arise in this case as the sole respondent had died.

It may be mentioned that in view ofr. 11 of

0. XXII, the words 'plaintiff', 'defendant' and 'suit' in that Order include 'appellant', 'respondent' and 'appeal' respectively.

The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action. ::.ub-rule (.1) of r. 9 bars fresh suit. The only remedy open to the plaintiff or thie person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time. The Court will set aside the abatement if it is was proved that the applicant prevented by any sufficient cause from continuing the suit .. This means that the applicant had to allege and establish facts which, in the view of the Court, be sufficient reason for his not making the application ·for bring· ing on record the legal representatives of the deceased within time. · If no such facts are alleged, none can be established and, :in that case the Court cannot set aside the abatement of the suit unless the very circuffistances of the case make it so obvious that the Court be position to hold that there was sufficient cause for the applicant's not continuing the suit by taking necessary steps within the period of limitation. Such would be very rare case. This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will not

( 1) I 1962] 2 S. C. R, 636.

(2) C. A. No. 544 of 1956 decided oo April 10, 1962.

3 S.C.R. SUPREME COURT REPORTS

ordinarily be sufficient for the Court's holding that the applicant had sufficient cause for not impleading the legal representatives within time. If the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement, the legislature would have expressed itself differently and would not have required the applicant to prove that he was prevented by any sufficient cause from continuing the suit. The period of limitation prescribed for making such an appli· cation is three months, under Art. 171 of the Fir,t Schedule to the Limitation Act. This is sufficiently long perhd and appears to have been fixed by the on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of the persons who are his legal representatives within . that period. The legislature might have expected that ordinarily the interval between two succes•ive hearings of suit will be much within three months and the absence of any defendant within that period at certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisi-tive about the reasons for the other party"s absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowei sufficient time to make an appli-cation to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause' for setting aside abatement or for the not applying to bring the legal representatives of the deceased

Union of India •• Rum Charan [(.Gghubar Day:tl J,

Unin ef Indio v. a... ch., .. 114••har Doyal I.

defendant on the r,ecord or would be held to be an sufficient cause for not making application to set aside the abatement within the time prescribed·. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiffs negligence in not taking certain steps which he could have and should have taken. What wouldl be such necessary steps would again depend on the circumstances of particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of particular case amount to 'sufficient cause' or not. Courts have to use their discretion in the matter soundly in the interests of justice.

It will serve no useful purp'.)Se to refer to the cases relied on for the appellant in support of its contention that the: appellant's ignorance of the death of the respondent is sufficient cause for al-lowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to its cul-pable negligence or mala .fides. We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to liege "hy he did not know of the death of the respondent earlier or why he could not know about it despite his efforts,' if he had made any efforts on having some cause to apprehend that the respon· dent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to

bring the legal representatives of the decrased respondent earlier on the record.

In the present case, the appellant had adopted very wrong attitude from the very beginning. In its application dated March 17, it merely said that· Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. :::.hri Bhatia did not say anything more in his affidavit and did not verify it . on the basis of his personal knowledge. Why he did not do so is difficult to if he came to know of the death on imagine February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judl(ment of the Court that no further information was conveyed in the application d::.ted May 13, 19.58 which is not on the record. The most damaging thing for the appellant is that the appli· cation came up for hearing before the learned Single it was that Judge and at that time the stand taken by limitation for such an application starts not from the date of death of the respondent but from the date of the appellant's knowledge of the death of the respondent. The appellant's case seems to have been that no as abatement had actually taken olace the limitation started from February 3, 1958, when the appellant's officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 0. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does not provide

1963 l!ni'm of lruli• v. R.m C,,.,.

1963 Union of India v. Ram Charan

ROghUb,,, D(Jyal J.

196S May 1.

the limitation to start from the date of the appel-lant's knowledge thereof. The stand taken. by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act. In these circumstances, the High Court cannot be said to have taken an erroneous view .about the appellant's not establishing sufficient ground for not making an applicatiun to bring on record the · representatives of the deceased respondent within time or for not making an application to set aside the abatement within time.

We, therefore, see no force in this appeal and dismiss it with costs.

Appeal dismissed.

RAJABHAI ABDUL REHMAN MUNSHI

VASUDEV DHANJIBHAI MODY

(A. K. SARKAR, .l\'.{. HIDAYATULLAH and J.C. SHAH JJ.)

_87;ecial Leave-Revocation-Jurisdiction of Supreme Court-Fal11.e Statement made in Special Leave Petition-Constitution. of India. Art, 136.

In .suit filed in l 9j4-teriant deposited in Court Rs. 400/- on October I, 1954. The deposit remained in C•>urt uptojanuary 19, 1957, when it was withdrawn. fresh suit was filed in SeptP.mber, 1955, for ejectment of the'.:enant. On janoary 10,1957, the tenant deposed about the deposit of Rs. 400/· but \Vlthdrew it afrer nine days. The suit was dis· miss(d by the trial court on Fc:brua.ry 26, l9j7, on the ground that tl1e am·>unt required had been deposited by the tenant in Cciurt. The 10,ver appe\l'.lte court accepted the .appeal and ordered ejectment on the ground that the . amount deposited