Harnam Singh vs Malkiat Singh

R.L. Anand, J. (Oral)

This is an appeal against the order dated 29.8.1987 passed by the Additional District Judge, Hoshiarpur whereby he rejected the application of the petitioner Shri Harnam Singh for setting aside the order of abatement dated 24.10.1986 passed in Civil Appeal No. 65 Addl. of 18.3.1986 titled Smt. Prago v. Malkiat Singh and also for bringing him on record as legal representative of Smt. Prago on the basis of a registered will dated 21.12.1983.

The case set up by Shri Harnam Singh was that Civil Appeal No. 65/Addl : of 18.3.1986 titled Smt. Prago v. Malkiat Singh was pending for hearing before the Additional District Judge, Hoshiarpur. During the pendency of the appeal, Prago died on 26.5.1986 but nobody filed application for impleading as legal representatives of the deceased within the statutory period of 90 days. According to Harnam Singh, he is the legal representative of Smt. Prago on the basis of the registered will dated 21.12.1983 and as such he is entitled to the property left by Smt. Prago on the basis of the said will. The applicant is an old man and was not keeping good health and as such was confined to bed for a sufficient long period. He had no knowledge as to in which Court Smt. Prago had filed the appeal or who was her counsel. He had also no knowledge about the progress of the case, therefore, he could not file the application for impleading him as legal representative of Smt. Prago within the statutory period, therefore, he had sufficient and reasonable cause for not filing the said application. He came to know only when Malkiat Singh and his wife made known to other parties. The appeal filed by Prago had been dismissed and they planned to sell the property. He made efforts and came to know about the judgment and decree dated 24.10.1986. There was no negligence on his part in moving the present application. The property involved is worth lacs of rupees and in case the abatement order is not set aside and he is not brought on the record as legal representatives of Smt. Prago, a grave miscarriage of justice would be caused. It was pleaded by Shri Harnam Singh that the appeal was likely to succeed on the basis of the effective evidence. With this prayer Harnam Singh had stated that the order dated 24.10.1986 dismissing the appeal as having been abated may be set aside and he be brought on the record as the legal representative of Smt. Prago.

Notice of the application was given to the respondent who filed the reply and denied the allegations. Preliminary objections were taken that the application made by Harnam Singh was not within time; that he had no locus standi to file the application; that he is not the legal representative of Smt. Prago and he is estopped by his act and conduct to file the application.

On merits, the stand of Sh. Malkiat Singh was that the will dated 21.12.1983 was forged document and does not confer any right, title or interest on the applicant with regard to the estate of Smt. Prago. In fact, the answering respondents were the legal representatives of Smt. Prago. It was stated that Smt. Prago was not mentally competent and sound to execute the will. In fact, at the time when the appeal abated, the applicant was present in the Court. He was never confined to bed as alleged by him. He has given a false excuse of illness. According to the respondents, Smt. Prago died at Ganganagar (Rajasthan) and she never attended the Court personally and it was the applicant who had been pursuing the case on behalf of Smt. Prago and was attending the Court on each and every date of hearing. The applicant, Harnam Singh, had the full knowledge regarding the court in which the appeal was pending as also about the counsel and the particulars of the appeal. Other averments contained in the application were denied and finally it was prayed by the respondents that the application of Harnam Singh be dismissed.

The learned Additional District Judge, Hoshiarpur, dismissed the application of Harnam Singh, for the reasons given in para No. 5 of the judgment, which may be read as under :

"It is admitted case of the parties that civil appeal No. 65/Addl. of 18.3.1986 titled ''Smt. Prago v. Malkiat Singh was pending in this Court. During the pendency of appeal, Smt. Prago died on 26.5.1986. The death of Smt. Prago was brought to the notice of the Court on 24.10.1986 by the counsel for the respondents which is also not disputed; that till 24.10.1986, nobody came forward with a prayer to bring him on record as legal representative of Prago. Though counsel for Prago appellant throughout had been appearing in the Court in respect of the appeal filed by Prago, but no application for bringing any person on record as legal representative of Prago was filed. The L.Rs. of Smt. Prago, as the Law of Limitation provides, could be made within 90 days from the date of death of Prago, as such, the appeal preferred by Prago was dismissed on 24.10.1986 as having been abated. As regards the setting aside of abatement order is concerned, the application for that purpose as provided under Article 121 of the Limitation Act could be made within 60 days from the date of abatement. Therefore, the contention of the learned counsel that period of limitation for bringing the L.Rs. of a deceased on setting aside order of abatement, the period of limitation is to be reckoned from the date of knowledge is not tenable and the same is repelled. The present application for both the purposes was filed on 3.3.1987 which clearly goes to show that it is hopelessly time barred for both the purposes. No application for condonation of delay was annexed to the application. In this view of the matter, neither the prayer for bringing Harnam Singh on record as L.R of Prago, nor for setting aside the abatement order can be allowed. In this view, I am supported by a decision of our own High Court in Om Sarup Nand Lal v. Gur Narain and others, AIR 1965 Punjab 367 wherein it was held as under :

"In so far as the merits of this application are concerned, it was pointed out in Jagar''s case, AIR 1980 Punjab 207 that on the death of a respondent it is incumbent on the appellant to cause the legal representatives of the deceased to be made a party and if no application for this purpose is made within the time limited by law, the appeal must abate as against the deceased. Under Article 177, Indian Limitation Act, 1908 (which Act governs the present case) a period 90 days is allowed for making such an application and the terminus a quo is the date of the death of the deceased respondent. When the appeal has abated, even then the appellant is given another chance of approaching the Court for an order to set aside the abatement and if he succeeds in proving that he was prevented by any sufficient cause from continuing the appeal, the Court normally sets aside the abatement on such terms as to costs or otherwise as it think fit. For this purpose, Article 171 of the Act of 1908 fixes 60 days and the terminus a quo for this purpose is the date of abatement, it is thus obvious that knowledge of the death of the deceased party does not figure in these two Articles with the result that prima facie the date of the knowledge of the death would not be relevant consideration in determining the question of limitation in these two applications. Rule 9(3) of Order 22, Code of Civil Procedure, of course, provides for the applicability of Section 5, Indian Limitation Act, to the applications filed under Rule 9(2) but then, in order to invoke the assistance of Section 5, it is well recognised that each individual day''s delay after the expiry of the period of limitation has to be satisfactorily explained and the explanation has to cover the whole of the period of delay. In the case in hand for reasons best known to the appellant, it has not been disclosed on which precise date knowledge of the death of the deceased was acquired and why the necessary application could not be presented to this Court earlier. We have, therefore, no alternative except to disallow the application for setting aside abatement and for bringing on record the legal representative of Mukand Lal deceased. This petition is accordingly rejected."

Aggrieved by the order dated 29.8.1987, the present appeal has been preferred by Harnam Singh appellant.

I have heard Shri M.S. Rahi, Advocate, on behalf of the appellant and Shri I.S. Bajwa, on behalf of the respondents and with their assistance have gone through the record of the case.

It was a specific case of Shri Harnam Singh that Smt. Prago executed a registered will in his favour. He was never aware about the appeal pending in the Court of Additional District Judge and on coming to know that one case of Smt. Prago has been decided, he made an application for obtaining the copy of the order. The moment he came to know that the appeal of Smt. Prago had been decided, he filed an application 3.3.1987 for obtaining the certified copy of the order.

While considering these type of applications, the Court should not be so rigid. In the modern times, nobody will like to go with his litigation unpressed. Moreover, when Smt. Prago had already filed the appeal, it can be reasonably inferred that she was always interested to prosecute the appeal. Shri Harnam Singh had nothing to do but to bring himself on record as legal representative of Smt. Prago on the basis of registered will. The moment it came to the knowledge of the appellantapplication Harnam Singh, that appeal had abated, he did not lose any time on obtaining the copy of the order and he made the necessary application. In this view of the matter and in the interest of justice, it has become necessary to set aside the impugned order dated 29.8.1987, which is hereby set aside subject to payment of Rs. 2000/ as costs by the appellant to the respondent. The directions are given to the learned Additional District Judge, Hoshiarpur to readmit the appeal to its original number, treat the application of Shri Harnam Singh as having been made for impleading him as legal representative of Smt. Prago and frame a proper issue as to whether Smt. Prago had executed a will in favour of the applicant Shri Harnam Singh. If the decision of that application goes in favour of Shri Harnam Singh, in that eventuality, he will be brought on record as legal representative of Smt. Prago. The first appellate Court shall try to dispose of the appeal within one year from the receipt of the copy of this order.

The parties through their counsel are directed to appear before the successor Court of Shri Balwant Rai, the then Additional District Judge, Hoshiarpur, on 29.9.1999. Copy of the order be sent to District Judge, Hoshiarpur for intimation and compliance.