Gurdev Singh vs Satish Kumar

R.L. Anand, J.—This is a second appeal against order dated 14.8.1987 passed by the Additional District Judge, Ludhiana who dismissed the application of the appellant for impleading him as L.R. of his father Poholo Singh.

Some facts can be noticed in the following manner :-

One Satish Kumar son of Satpaul Sharma filed a suit for declaration against Poholo Singh, Naresh Kumar and Harbhajan Singh, defendant No. 1 to 3, respectively, alleging that defendant No. 3 is the real owner of the property B-XVII-1397, shown in the plaint situated at Ludhiana and that the plaintiff is the tenant of said Harbhjan Singh on monthly rental of Rs. 250/- and that there does not exist any relationship of landlord and tenant between defendant No. 1 and the plaintiff. Moreover, there was no relationship of landlord and tenant between defendants No. 1 and 2 and, as such, the order of ejectment dated 20.1.1981 obtained by the defendant No. 1 was the result of fraud and misrepresentation. There was no person by the name of Naresh Kumar nor such person ever came into possession of the property and the ejectment order, if any obtained by Poholo Singh against Naresh Kumar does not bind the interest of the plaintiff, who was the tenant of defendant No. 3 Harbhajan Singh. As a result of the ex parte order of ejectment dated 20.7.1981, the plaintiff is not liable to be evicted from the premises.

The suit was contested by defendant No. 1 Poholo Singh and the trial Court passed a decree in favour of Satish Kumar by holding that he was the tenant under Harbhajan Singh, defendant No. 3. Further, it was held by the trial Court and Poholo Singh had no right in the disputed property as this property had already been declared as evacuee and was sold to Harbhajan Singh, defendant No. 3, who had become the owner of the property.

Aggrieved by the judgment and decree of the trial Court passed by the Court of Sub Judge, 1st Class, Ludhiana, dated 16.11.1984, Poholo Singh filed the first appeal before the Court of the Additional District Judge, Ludhiana. during the pendency of the appeal, Poholo Singh died on 13.5.1986. Gurdev Singh filed an application for impleading him as L.R. of Poholo Singh on 6.8.1987 by holding that he is the sole heir of his father and is entitled to succeed to the property and that he could not convey the death of his father to the counsel due to mental depression and shock. The application was opposed by the plaintiff-respondent on the plea that it is barred by time and that the appeal had abated. The first appellate court held in para-2 as follows:-

"Factual position is that sole appellant died on 13.5.1986 Gurdev Singh never applied, within 90 days of his death to be substituted in his place nor he applied within next 60 days to set aside the abatement, which was automatic after 90 days from the death of Poholo Singh, though he has (pledged) that he could not convey the death of his father to his counsel due to mental depression and shock yet, no plea or prayer has been made for condonation of delay and extension of time. Gurdev Singh's application is barred by time and is declined for this reason. Naturally, this appeal stands long abated and is dismissed as such."

Aggrieved by the order of the first appellate Court, the present appeal, which I am disposing of with the assistance rendered by the counsel for the appellant only.

The learned counsel for the appellant relying upon a judgment reported as Partap Singh v. State of Haryana and Ors.1979 P.L.J. 48, submitted that the application u/s 5 of the Limitation Act can be granted even on the oral prayer and it is not necessary on the part of the appellant to make a written request. He further submitted that if the court finds that the L.R. has been prevented by any sufficient cause in not filing the application within limitation, the prayer for condoning the limitation can be granted.

I do not subscribe to the argument of the counsel for the appellant. So far as the legal aspect of the case is concerned, there is no dispute. It is not necessary that the application u/s 5 of the Limitation Act must be in writing and an oral request can be made to the Court but under Article 120 of the Limitation Act, the application for bringing on record the L.Rs. was supposed to be made within 90 days. Admittedly, Poholo Singh died on 13.5.1986. An application was moved on 6.8.1987 after a period of more than 14 months. There was no satisfactory explanation given by Gurdev Singh why he did not make the application within limitation. The consequences are very fatal. Under order 24 Rule 4 sub-rule (3), C.P.C., when the application is not made within limitation, the suit appeal shall abate. Under Article 121 of the Limitation Act, the application could be made for setting aside the order of abatement within 60 days. This application too was not made

In this view of the matter, I do not see any infirmity in the impugned order. Dismissed.