Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7011 OF 2015
(Arising out of S.L.P. (Civil) No. 22129 of 2014)
Shanti Devi & Others … Appellants
Versus
Kaushaliya Devi …Respondent
WITH
CIVIL APPEAL NO. 7008 OF 2015
(Arising out of S.L.P. (Civil) No. 22996 of 2014)
J U D G M E N T
Prafulla C. Pant.J.
Civil Appeal No. 7011 of 2015
This appeal is directed against order dated 02.01.2014,
passed by High Court of Judicature at Allahabad, Lucknow
Bench, whereby said court has dismissed the Writ Petition No.
Signature Not Verified
Digitally signed by
Gulshan Kumar Arora
Date: 2015.09.18
16:28:34 IST
Reason:
58 of 2008 (M/S), affirming the order dated 10.10.2007,
passed by the Additional District Judge/Special Judge
Page 2 of 10
(E.C.Act), Gonda, in Miscellaneous Case No. 08 of 2006. By
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 14.03.1995, and thereafter dismissed
in default on 21.03.1997.
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. 277/66 on
16.12.1966 before Munsif, Gonda. In 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 on 02.11.1966. The defendant disputed 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 20.04.1977 with the
observation that since issue of ownership of the plaintiff is
Page 3 of 10
disputed, and relationship of landlord and tenant between
parties not proved, as such, the plaintiff was at liberty to file
fresh suit on the basis of ownership. Thereafter, unsuccessful
plaintiff (Ram Narayan) started fresh litigation by filing
Original Suit No. 45 of 1980 against Ram kali (predecessor in
title of 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 21.07.1987
(Annexure P-1). On which the plaintiff filed Civil Appeal No.
124 of 1987. During the pendency of the appeal, defendant
Ram Kali died, and her legal representatives were substituted.
Thereafter appellant Ram Narayan (original plaintiff) died on
14.12.1994. Since no substitution by his heirs was sought in
the appeal filed before first appellate court, as such, the
appeal stood abated on expiry of ninety days of death of
plaintiff-appellant, and ultimately the appeal was dismissed in
default on 21.03.1997.
4. After a period of eleven years, on 13.04.2006,
substitution application (Annexure P-4) was moved by the
Page 4 of 10
present respondent Kaushaliya Devi along with application
(Annexure P-3) under Section 5 of Limitation Act, 1963. The
defendants filed objections to said application. After hearing
the parties, application for condonation of delay was allowed,
vide order dated 10.10.2007 (Annexure P-7), passed by the
first appellate court i.e., Additional District Judge/Special
Judge (E.C. Act), Gonda. Aggrieved by 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
05.07.2013 (Annexure P-10). It appears that writ petition was
got restored, and finally dismissed after hearing the parties,
vide impugned order dated 02.01.2014, challenged in this
appeal.
5. Shri Pradeep Kant, Senior Advocate, on behalf of the
appellants (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
Schedule of Limitation Act, 1963. Reliance is placed on behalf
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of the appellants in the case of Karam Kaur v. Jalandhar
1
Improvement Trust and Others , in support of the above
argument.
6. On the other hand, learned counsel for the respondent
submitted that the courts below have done the substantial
justice as Kaushaliya Devi, daughter of plaintiff, who was a
married woman, was living away from his father, as such
could not move the substitution application in time, and she
remained under impression that her counsel before the first
appellate court had taken the necessary steps.
7. Before further discussion, we think it just and proper to
mention the relevant provisions applicable to the present case.
Rule 3 of Order XXII of 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
1
(2014) 6 SCC 409
Page 6 of 10
XXII provides that in the application of the Order to appeals
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 Schedule of 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 Indian
Limitation Act, shall apply to sub-rule (2), wherein a person
claiming legal representative of deceased plaintiff has a right
to apply for setting aside the abatement but was prevented by
any sufficient cause from continuing the suit.
8. 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 plaintiff/appellant, in the
appeal pending before the first appellate court or not.
Admittedly, original plaintiff, Ram Narayan died on
14.12.1994. It is not the case of the respondent Kaushaliya
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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. 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
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 09.01.2004. In
paragraph 19 of the objections, it is stated that same counsel
had represented Archana Gupta and respondent Kaushaliya
Page 8 of 10
Devi before the first appellate court. Our attention is drawn to
paragraph 4 of the affidavit of Kaushaliya Devi filed with
application for substitution (Annexure P-4).
9. 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 XXII CPC read with Article 120 of
Schedule of 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.
Page 9 of 10
10. Therefore, the appeal succeeds. The impugned order
dated 02.01.2014 passed by the High Court, and the order
dated 10.10.2007 passed by Additional District Judge/Special
Judge (E.C. Act), Gonda, in Miscellaneous Case No. 08 of 2006
are liable to be set aside, and are hereby set aside. No order
as to costs.
Civil Appeal No. 7008 of 2015
In view of judgment in Civil Appeal No. 7011 of 2015, this
appeal stands disposed of. No order as to costs.
……………….....…………J.
[Dipak Misra]
.……………….……………J.
New Delhi; [Prafulla C. Pant]
September 18, 2015.
ITEM NO.1A COURT NO.5 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 7011/2015
SHANTI DEVI & ORS. Appellant(s)
VERSUS
KAUSHALIYA DEVI Respondent(s)
WITH
C.A. No. 7008/2015
Date : 18/09/2015 This appeal was called on for judgment today.
For Petitioner(s) Mr. Pradeep Kant, Sr. Adv.
Mr. Divyanshu Sahay, Adv.
Mr. Rakesh K. Sharma, AOR
For Respondent(s) Mr. Sanjeev Agarwal, AOR
Mr. Deepak Kumar Singh, Adv.
Mr. Parmod Kumar, Adv.
Mr. Nitin Kumar Thakur, AOR
Hon'ble Mr. Justice Prafulla C. Pant pronounced the judgment
of the Bench consisting Hon'ble Mr. Justice Dipak Misra and His
Lordship.
Civil Appeal No.7011 of 2015 succeeds in terms of the signed
reportable judgment.
Civil Appeal No.7008 of 2015 stands disposed of in view of
the judgment in Civil Appeal No.7011 of 2015.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)