(Dipak Misra and Kaushaliya Devi, JJ.)
Shanti Devi and Others _____________________________ Appellant(s)
v.
Kaushaliya Devi ___________________________________ Respondent
Civil Appeals No. 7011 of 2015†with No. 7008 of 2015†, decided on September 18, 2015
The Judgment of the Court was delivered by
Prafulla C. Pant, J.:—
Civil Appeal No. 7011 of 2015
1. This appeal is directed against the order dated 2-1-20141, passed by the High Court of Judicature at Allahabad, Lucknow Bench, whereby the said court has dismissed Writ Petition No. 58 of 2008 (M/S), affirming the order dated 10-10-2007, passed by the Additional District Judge/Special Judge (the EC Act), Gonda, in Miscellaneous Case No. 8 of 2006. By the said order, the first appellate court condoned the delay of more than eleven years, and allowed the substitution application moved by the respondent, in Civil Appeal No. 124 of 1987 which stood abated on 14-3-1995, and thereafter dismissed in default on 21-3-1997.
2. We have heard the learned counsel for the parties and perused the papers on record.
3. This is the second round of litigation between the parties. In the first round, Ram Narayan, father of respondent Kaushaliya Devi, instituted Original Suit No. 277 of 1966 on 16-12-1966 before the Munsif, Gonda. In the said suit, Ram Narayan pleaded that the defendant (predecessor-in-title of the present appellants) was his tenant, and the tenancy was terminated vide notice dated 2-11-1966. The defendant disputed the title of the plaintiff. And after full trial, the suit was dismissed on which, Ram Narayan preferred Civil Appeal No. 107 of 1973. The same was also dismissed on 20-4-1977 with the observation that since the issue of ownership of the plaintiff is disputed, and the relationship of landlord and tenant between the parties not proved, as such, the plaintiff was at liberty to file fresh suit on the basis of ownership.
4. Thereafter, the unsuccessful plaintiff (Ram Narayan) started fresh litigation by filing Original Suit No. 45 of 1980 against Ram Kali (predecessor-in-title of the appellants) and Gauri Shanker seeking declaration of title and damages. This suit was also contested, and after recording the evidence and hearing the parties, the same was dismissed vide judgment and decree dated 21-7-1987 (Annexure P-1) on which the plaintiff filed Civil Appeal No. 124 of 1987.
5. During the pendency of the appeal, defendant Ram Kali died, and her legal representatives were substituted. Thereafter appellant Ram Narayan (the original plaintiff) died on 14-12-1994. Since no substitution by his heirs was sought in the appeal filed before the first appellate court, as such, the appeal stood abated on expiry of ninety days of death of appellant-plaintiff, and ultimately the appeal was dismissed in default on 21-3-1997.
6. After a period of eleven years, on 13-4-2006, substitution application (Annexure P-4) was moved by the present respondent, Kaushaliya Devi along with application (Annexure P-3) under Section 5 of the Limitation Act, 1963. The defendants filed objections to the said application. After hearing the parties, the application for condonation of delay was allowed, vide order dated 10-10-2007 (Annexure P-7), passed by the first appellate court i.e. the Additional District Judge/Special Judge (the EC Act), Gonda. Aggrieved by the said order, the present appellants filed Writ Petition No. 58 of 2008 (M/S) before the High Court. The writ petition was earlier allowed ex parte on 5-7-20132 (Annexure P-10). It appears that the writ petition was got restored, and finally dismissed after hearing the parties, vide the impugned order dated 2-1-20141, challenged in this appeal.
7. Shri Pradeep Kant, Senior Advocate, on behalf of the appellants (the defendants) argued before us that seeking condonation of delay of more than 10 years is nothing but abuse of process of law, and it defeats the very purpose of period of limitation of ninety days provided in Article 120 of the Schedule of the Limitation Act, 1963. Reliance is placed on behalf of the appellants in Karam Kaur v. Jalandhar Improvement Trust3, in support of the above argument.
8. On the other hand, learned counsel for the respondent submitted that the courts below have done substantial justice as Kaushaliya Devi, daughter of the plaintiff, who was a married woman, was living away from her father, as such could not move the substitution application in time, and she remained under the impression that her counsel before the first appellate court had taken the necessary steps.
9. Before further discussion, we think it just and proper to mention the relevant provisions applicable to the present case. Rule 3 of Order 22 of the Code of Civil Procedure, 1908 (for short “CPC”) provides that where the plaintiff dies, and the right to sue survives, the Court, on an application made in that behalf shall cause legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Rule 11 of Order 22 provides that in the application of the Order to appeals the word “plaintiff” shall be held to include “appellant”. Sub-rule (2) of Rule 3 of the Order provides that where within the time, limited by law, no application is made under sub-rule (1) the suit shall abate. So far as the limitation is concerned, Article 120 of the Schedule of the Limitation Act, 1963 provides period of ninety days for moving substitution application. Sub-rule (3) of Rule 9 provides that, the provisions of Section 5 of the Limitation Act, shall apply to sub-rule (2), wherein a person claiming to be legal representative of the deceased plaintiff has a right to apply for setting aside the abatement but was prevented by any sufficient cause from continuing the suit.
10. Now, we have to see whether in the present case sufficient reason was shown for condonation of delay, by respondent Kaushaliya Devi for setting aside abatement and seeking her substitution in place of the appellant-plaintiff, in the appeal pending before the first appellate court or not.
11. Admittedly, original plaintiff, Ram Narayan died on 14-12-1994. It is not the case of the respondent Kaushaliya Devi that she had no knowledge of death of her father, nor is her case that she had no knowledge of the litigation pending before the first appellate court. Rather, the application for condonation of delay, which is Annexure P-3 on the record, shows that after death ceremony of her father, she requested one Archana Gupta and her husband to prosecute the matter and they told her that necessary steps had been taken. She further pleaded that her brother, Mangal Prasad (son of Ram Narayan) was missing.
12. In their objections (Annexure P-5), the present appellants denied that Mangal Prasad was missing. It is further stated that he is living with his family in Aliganj, Lucknow. It was pointed out on behalf of the present appellants before the first appellate court that Archana Gupta moved an application for substitution claiming herself to be the legal heir of the deceased, on the basis of a will. It is also stated in the objections, supported by affidavit that Archana Gupta was daughter of Ram Kripal, real brother of Ram Narayan. Her application was dismissed on 9-1-2004.
13. In Para 19 of the objections, it is stated that the same counsel had represented Archana Gupta and respondent Kaushaliya Devi before the first appellate court. Our attention is drawn to Para 4 of the affidavit of Kaushaliya Devi filed with the application for substitution (Annexure P-4).
14. Having gone through the papers on record, as discussed above, and keeping in mind the spirit of the provision contained in Rule 3 of Order 22 CPC read with Article 120 of the Schedule of the Limitation Act, 1963, in our opinion the first appellate court and the High Court have committed grave error in law in condonation of delay of more than eleven years in moving substitution application, and setting aside the abatement in the present case, particularly when the respondent/daughter of the deceased had full knowledge of death of her father and also of the litigation pending before the first appellate court. Delay cannot be condoned on insufficient grounds and by abusing the process of law. We do not find that any sufficient reason was shown by the respondent before the courts below to get huge delay of eleven years condoned, for setting aside abatement, and her substitution.
15. Therefore, the appeal succeeds. The impugned order dated 2-1-20141 passed by the High Court, and the order dated 10-10-2007 passed by the Additional District Judge/Special Judge (the EC Act), Gonda, in Miscellaneous Case No. 8 of 2006 are liable to be set aside, and are hereby set aside. No order as to costs.
Civil Appeal No. 7008 of 2015
16. In view of the judgment4 in Civil Appeal No. 7011 of 2015, this appeal stands disposed of. No order as to costs.
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†Arising out of SLP (C) No. 22129 of 2014
†Arising out of SLP (C) No. 22996 of 2014
1 Shanti Devi v. Special Judge Essential Commodities Act Gonda, 2014 SCC OnLine All 14828
2 Shanti Devi v. Special Judge Essential Commodities Act Gonda, 2013 SCC OnLine All 13920
3 Karam Kaur v. Jalandhar Improvement Trust, (2014) 6 SCC 409 : (2014) 3 SCC (Civ) 575
4 Set out in paras 1 to 15, above.
