9911796707
TMI Blog1963 (4) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... that the deceased had left as his legal representatives, an adopted son and a 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 application did not convey any further information and it was solemnly affirmed by the dependent that the averments in the -affidavit were true to his belief The deponent was no other than the Divisional Engineer, Telegraphs, Ambala Cantonment. On May 13, 1958, the widow of Ram Charan applied that she alone was the legal representative of Ram Charan under a will and that the alleged adopted son was not the legal representative. The appellant s application for bringing on record the legal representatives of the deceased Ram Charan came up for hearing on May 14, 1958. The Court ordered the application to be heard at the time of the hearing of the appeal as it was pointed out that there was a difference of opinion in the Court as to whether limitation under 0. XXII of the Code started from the date of death or from the date of knowledge of death. Subsequently, on an application on behalf of the legal representatives, it was ordered that the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 does appear to have construed that application in this manner. Its order dated May 17, 1960 stated : The appeal was decided as having abated because the appellant failed to show sufficient cause for not bringing the legal representatives of the deceased respondent within 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 17, 1958, was filed under O. XXII, rr. 4 and 9 read with s. 151 of the Code. he application, as printed on the record, did not purport to be under r. 9 of O. XXII, C.P.C. There is not a word in the application that the appeal had abated and that the abatement be set aside The error in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the cause of justice. (4) The Court itself has inherent power to add legal 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 may say at once that there is no force in the fourth point. The Court is not to invoke its inherent powers under s. 151, C.P.C. for the purposes of impleading the legal representatives of a 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 abatement within time. There is no question of construing the expression 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 respondent. The provisions of the Code a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants 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 a party to the suit. It does not say who is 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 application is made within the time allowed by law, the suit abates to far as the deceased 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 considerations as held by this Court in State of Punjab v. Nathu Ram ([ 1962] 2 S. C. R, 636) and Jhanda Singh v. Gurmukh Singh (C. A. No. 344 of 1956 decided on April 10, 1962) . Any way, that question does not arise in this case as the sole respondent had died. It may be mentioned that in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive 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 a 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 allowed sufficient time to make an application 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 the abatement or for the plaintiff s not applying to bring the legal representatives of the deceased defendant on the record or would be held to be sufficient cause for not makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebruary 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 judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is not on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that 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 abatement had actually taken place as 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 O. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
