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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: RAM CHARAN & OTHERS

DATE OF JUDGMENT: 30/04/1963

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1964 AIR  215            1964 SCR  (3) 467  CITATOR INFO :  R          1983 SC1202  (5)

ACT:      Abatement of appeal-Death of respondent-Application  by appellant  to bring legal representatives of  respondent  on record  Application filed after lapse of three months  after death-What is "sufficient cause"-Limitation for  application to  set  aside abatement starts from date of death  and  not from date of appellant’ knowledge of death--Scope of s.  151 C.P.C.-India Limitation Act, 1908 (9 of 1908) Art, 171- Code of Civil Procedure 1908 (Acl. 5 of 1908), 0.22, s. 151,  rr. 4,9,11.

HEADNOTE:      Ram Charan obtained a money decree against the Union of India.  An appeal was filed against that decree in the  High Court.   Ram  Charan respondent died on july 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 Divisional Engineer, Telegraphs, learnt of  his death  on  February 3, 1958 and the deceased  had  left  his widow  and an adopted son as his legal  representatives.   A prayer  was made to bring the legal respresentatives of  the deceased   on   record.   The  High  Court   dismissed   the application  on the ground that the appellant had failed  to show   sufficient   cause  for  not   bringing   the   legal representatives of the deceased on record within time.   The appeal was also dismissed.  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 impleading of legal  representatives within time unless the appellant  was guilty of some negligence 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  further  enquiries about the state of  health  of  the respondent,  that  expresssion sufficient cause’  should  be liberally  construed  in  order  to  advance  the  cause  of justice,  that  the Court itself had inherent power  to  add legal  representatives to do justice to the party  and  that

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the High Court misapplied the decision of the Full Bench 468 in  Firm Dittu Ram Eyedan v. Om Press 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   appellant’s knowledge thereof.      Held also that the Court is not to invoke its  inherent powers  under  s. 151 C.P.C. for the purpose  of  impleading legal representatives of a deceased respondent, if the  suit had   abated  on  account  of  the  appellant   not   taking appropriate steps within time to bring legal representatives of  the deceased on the record and when its application  for setting  aside abatement was 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  setting  aside  of  the abatement within time.      Held 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 respondent.  The Court should  not  readily accept whatever is alleged to explain away the default.  The delay  in making the application should not be  for  reasons which  indicate  the  negligence of  the  party  making  the application in not taking certain 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 a  reasonable  time.   The  bare statement of the applicant is not enough.      Firm  Dittu  Ram Eyedan v. Om Press Co. Ltd.  (1960)  1 I.L.R-  Punjab.  935 (F.B.), State of Punjab  v.  Nathu  Ram [1962] 2 SC R. 636 and Jhanda Singh v. Gurmukh Singh C.   A. No. 344 of 1936 dated 10.4.62, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1115  of 1962.      Appeals by special leave from the judgments and  orders dated  February  16,26, 1960, of the Punjab  High  Court  in Civil Misc.  No. 1212-C of 1959 and Regular First Appeal No. 44 of 1955.      D.R. Prem and P.D. Menon, for the appellant.  469      Veda   Vyasa,  K.  K.  Jain,  for  P.C.   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 Punjab  are these.  Ram Charan obtained a decree  for  money against  the Unioun of India on January 6, 1955.  The  Union of  India presented an appeal on April 6, 1955, in the  High Court.   Ram  Charan, the sole respondent,  filed  a  cross- objection  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 proceedings.  Ram  Charan died on July 91, 1957.      On  March 18, 1958 an application was presented 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

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Charan died on July 21, 1937, 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 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 470 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 abatement  be decided first and thereafter the  printing  of the   record  be  taken  on  hand.   The   application   for substitution came up for decision on February 16, 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, 1960, the appeal itself was dismissed as having abated.      On May 14, 1960, an application for leave to appeal  to the  Supreme  Court was presented to the  High  Court.   The heading of the application was described 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 application was rejected on May 17, 1960.   Thereafter, an  application for special leave was filed in  this  Court. Special leave was prayed for appealing from the judgment  of the High Court of Punjab in R.F.A.No.44 of 1955 and C.M. No. 1212-C/59 dated February 16/26 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  judgment  and  order dated  16th  day  of               February, 1960 and 26th day of February,  1960               of   the   Punjab   High   Court   in    Civil               Miscellaneous  No. 1212-C of 1959 and  Regular               First Appeal No. 44 of 1955."      A  preliminary objection was taken to the  effect  that the appellant having not applied to the  471 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  from this  Court in view of Order XIII, r.2 of the Supreme  Court Rules, 1950, the rule being:               "Where an appeal lies to the Supreme Court  on               a  certificate  issued by the  High  Court  or               other tribunal, no application to the  Supreme               Court  for  special leave to appeal  shall  be               entertained unless the High Court or  tribunal               concerned  has  first been moved  and  it  has               refused to grant the certificate."

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We do not see any force in this objection and reject it. The application  for  leave to appeal, though described  as  one against  the  judgment  in the miscellaneous  case  and  not against the order in the regular appeal, stated in paragraph I  that  the regular first appeal had been ordered  to  have abated  and in paragraph 3 that it was a fit case  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  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               472               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 this respect seemed  to have further led to the 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  death on February 3, 1958, there being no reason mentioned in  the application.   It was just stated as a 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 between February 3 and March  17. 1,958,  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.,  (1),  which held that ignorance of the death  of  the defendant  was not a sufficient cause for setting aside  the abatement   when   an  application  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 obligation 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 (1)  (1960) 1 1. L. R. Punj 935  473 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, 1958, that the Government had  not been careless in the matter and had been vigilant in keeping itself informed regarding the whereabouts of Ram 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.

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    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  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 474 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  are with a view to advance the cause of justice.  Of course, the Court, in considering whether the appellant has  established sufficient cause for his not continuing the suit in time  or for  not  applying for the setting aside  of  the  abatement within time need not be over-strict in expecting such  proof of  the  suggested  cause as it  would  accept  for  holding certain fact established, both because the question does not relate to the merits of the dispute between the parties  and because  if  the abatement 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 appellant’s default in  applying within time for the impleading of the legal  representatives of the deceased or for setting aside the abatement.  475      It  is  true, as contended, that it is no duty  of  the appellant to make regular enquiries from time to time  about the  health or existence of the opposite party, but it  does not  mean  that the mere fact of the appellant’s  coming  to

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know  of the respondent’s death belatedly will,  by  itself, justify  his  application for setting aside  the  abatement. That is not the law  Rule 9 of O. XXII of the Code  requires the  plaintiff  to  prove  that  he  was  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 knowing of the death of  the  defendant within reasonable time and  to  establish those  reasons to the satisfaction of the  Court,  specially when  the correctness of those reasons is challenged by  the legal  representatives  of the deceased who have  secured  a valuable right on 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 first contention  Rules 3 and 4  of  O. XXII,  C.P.C.  lay  down respectively the  procedure  to  be followed in case of death of one of several 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 476 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 (1) and Jhanda Singh v. Gurmukh 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 of r. 11  of  O.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.  Sub-rule (1) of r. 9 bars  a  fresh suit.   The only remedy open to the plaintiff or the  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 proved that the applicant was 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 a sufficient reason for his not making the   application   for  bringing  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 circumstances of the case make it so obvious that  the  Court  be in a position to hold  that  there  was sufficient cause for the applicants not continuing the  suit by  taking necessary steps within the period of  limitation. Such  would be a 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

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will not (1)  [ 1962] 2 S. C. R, 636. (2)  C. A. No. 344 of 1956 decided on April 10, 1962.  477 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  application  is three  months, under Art. 171 of the First Schedule  to  the Limitation  Act.   This is a sufficiently  long  period  and appears  to  have  been  fixed by  the  legislature  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  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 478 defendant  on the record or would be held to  be  sufficient cause  for  not  making  an 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 plaintiff’s negligence  in not taking certain steps which he could have and should have taken.   What  would  be such necessary  steps  would  again depend  on the circumstances of a 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 a curb on  the  free exercise of its mind by the Court in determining whether the facts  and  circumstances  of a 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 purpose 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 allowing 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 culpable negligence or mala fides.  We have shown above  that  the  mere  statement  that  the  appellant  was

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ignorant   of  the  death  of  the  respondent,  cannot   be sufficient  and that it is for the appellant, in  the  first instance, to allege why 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 respondent 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  479 bring  the legal representatives of the deceased  respondent earlier on the record.      In  the present case, the appellant had adopted a  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.   Shri  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 imagine if. he  came to know of the death on 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 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 abatement of a suit does start  on the  death of the deceased respondent.  Article  171,  First Schedule  to the Limitation Act provides that.  It does  not provide 480 the  limitation  to start from the date of  the  appellant’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 application 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.