Karam Singh and others vs Manak Singh (Died) Legal Representatives

M.R. Sharma, J.—This order will dispose of C. Misc. 135 & 136 of 1974 and R.S.A. No. 480 of 1973.

The facts giving rise to this second appeal are somewhat peculiar. The Appellants purchased the land in dispute vide sale deed dated March 8, 1967, from Jatinder Kaur daughter of one Tika Balbir Singh of village Dayalpura Bhaika, Manak Singh, now deceased, filed a suit for pre-emption on the ground that he, as the co-sharer, had preferential right of pre-emption. The Appellants, inter alia, pleaded that they being tenants on the land on the date of the sale, the sale made in their favour was not liable to be pre-empted. The learned Courts below found as a matter of fact that the Appellants were not proved to be tenants on the land in dispute and Manak Singh bad a superior right of pre-emption. The suit of the latter was, therefore, decreed.

Later on, it transpired that during the pendency of the appeal before the learned lower appellate Court. Manak Singh had died on October 13, 1972 The Appellants, who were also the Appellants in that Court did dot bring this fact to the notice of the learned Court, nor did they take any steps to being(sic) on record the legal representatives of Manak Singh deceased The record shews that initially Manak Singh had been served and the appeal was being defended on his behalf by a legally constituted attorney. It is also a feet that the decree sheet prepared by the learned lower appellate Court showed the name of Manak Singh as a Respondent. In these circumstance, the Appellants filed this appeal showing Manak Singh deceased as the contesting Respondent.

On April 9 1973, Punjab Pre-emption Act (Act 11 of 1973), was brought on the statute book, Section 2 of which provided that no Court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of that Act. This provision was interpreted in a large number of judgments rendered by this Court to have retrospective operation In other words, it was held that even if a decree for pre-emption had been passed earlier than the coming into force of this Act, and an appeal had been taken against that decree, the appeal would have to be decided in accordance with the amended provisions of the law which made incumbent upon the Courts to dismiss the suits for pre-emption.

This case, along with large number of other cases, came up for hearing before Harbans Singh, C.J, when an objection was raised that the appeal having been filed against Manak Singh, who was in fact a deceased Respondent before the learned lower appellate Court, should be ordered to have abated.

The Learned Counsel for the Appellants sought an adjournment for making an application for bringing on record the legal re-presentatives of Manak Singh Respondent, along with an application u/s 5 of the Limitation Act. The averments made in the application for condonation of delay show that the case came up before the learned Chief Justice on December 6, 1973, and the case was adjourned for a month for enabling the Appellants to bring on record the legal representatives of the deceased Respondent. The Learned Counsel for the Appellants inspected the file and found that the notice issued by the registry on August 20, 1973, about the death of Manak Singh Respondent, had not reached his hands. After the case was adjourned on December 6, 1973, Learned Counsel wrote to the Appellants who filed the present applications. The reason given for condonation of the delay are that the deceased Respondent was not living in village Dayalpura Bhaika, the village of the Appellants where the land is situate. He was in fact living at Malerkotla and the suit was actually being contested by the vendor. The Appellants did not come to know of the death of Manak Singh since it was not even disclosed by the Learned Counsel for the opposite party when the appeal filed by them was pending before the learned lower appellate Court.

The points involved in the case are:

(a) Whether an application for condonation of delay in making an application for setting aside an abatement and bringing on record the legal representatives of a deceased-Respondent lies in this Court or not, and

(b) Whether in the facts and circumstances of this case, the legal representatives of the deceased Respondent should be ordered to be brought on record or not.

On behalf of the Appellants, it is submitted that such an application can be made in this Court, and that delay could be condoned in the interests of justice, especially when the legislature has given a mandate that no more suits for pre-emption should be decreed.

On behalf of the Respondents, it is contended that mere absence of knowledge of the death of a Respondent is no ground for condoning the delay, especially when the Appellants are negligence in making such an application. It is specifically argued that on December 6, 1973, the Appellants were informed about the death of Manak Singh and yer they did not file the requisite application till as late as January 9, 1974, and that the Appellants have not discharged their statutory duty of explaining each day''s delay.

It is a settled principle of law that laws of procedure are handmaids of justice. A litigant cannot be deprived of his rights on the basis of the technicalities of laws of procedure. At the time when ManaK Singh died, it was the duty of the Appellants to bring to the notice of the Court the factum of the death of Manak Singh to bring on record his legal representatives. There is abundant authority for the proposition that an application, if filed by them after the expiry of the period of limitation, could be allowed only if they explained each day''s delay and also showed that there was sufficient cause for condoning the delay. Again, there is no magic formula for determining whether there is sufficient cause for condoning the delay in a particular case or not. While determining this matter, a Court is expected to take into consideration a variety of considerations, the foremost consideration being the interests of justice. Normally speaking a statute unless so worded expressly by the legislature, has to be given prospective operation, but a Court of law is also entitled to take notice of the changed circumstances during the currency of the litigation. See in this connection Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, The salient facts of this case are that with effect from April 9, 1973, the legislature had given a mandate that even in case of pending appeals no decree-for pre-emption should be passed ana the suits in which such decrees had been passed should also be dismissed by the appellate Court. Furthermore, on March 17, 1975, this Court amended Order 22 of the CPC and made it obligatory on the heirs of a deceased party to bring on record his legal representatives. The trend of statutory law is, therefore, definitely in favour of the Appellants and I think in order to determine whether there was sufficient cause in this case or not, it would be legitimate for me to take notice of this trend.

Coming to the first point now, it has been argued by Mr. Mangat that an application for bringing on record the legal representatives of Manak Singh Respondent should have been filed before the learned lower appellate Court and that application cannot be entertained by this Court. The Learned Counsel has placed particular reliance upon the words of Order 22. Rule 4 (1) which are as under:

Where one of two or more Defendants dies and the right to sue does not survive against the surviving Defendant or Defendants alone or a sole Defendant or sole surviving Defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased Defendant to be made a party and shall proceed with the suit.

according to him. it is only obligatory on the Court, on whose file the case is when the Respondent dies, to bring on record the legal representatives of the deceased. The precise argument is that when the code makes a particular reference about the power exercisable by a particular Court, such an express mention by necessary implication out the jurisdiction of another Court to entertain an application for bringing on record the legal representatives of the deceased. The argument though attractive, is devoid of any force. The CPC is a procedural Code and it is only exhaustive about the matters specifically dealt in it. In the absence(sic) of an express bar in the Code, a civil Court can device in(sic) own procedure for secruing the ends of justice. Further, an appeal and a second appeal, if competent, are a re-hearing of the whole matter and the appellate Court can exercise all the powers which are vested in a trial Court and this Court while hearing a second appeal can also exercise those powers which are exercisable by the Court of first appeal In this situation, it does not appear to be necessary for the Appellants to knock at the doors of the lower appellate Court for filing an application and the application moved before me can also be disposed of in accordance with law. The other argument raised by Mr Mangat is that as soon as Manak Singh died the appeal before the learned lower appellate Court abated and since there was no appeal in the eyes of law either before the learned lower appellate Court or before me, it is neither open to the Court nor to me to entertain an application for setting aside the abatement. This argument is again devoid of any force. The record shows that to begin with, Manak Singh Respondent had been served when the appeal was pending before the learned lower appellate Court It must, therefore, be held that the appeal, when filed, was competent. The legal defects which later on crept in about the competence of the appeal could therefore, be removed in accordance with law by the learned lower appellate Court and by me while hearing this second appeal.

The point is not res integra and there is a string of authorities of this Court in which similar view has been taken. The first case on the point is AIR 1928 784 (Lahore) in which it was observed as under:

... a decree passed after the death of a party to the suit or appeal is not an absolute nullity. Such a decree is not void nor is it open to collateral attack, but it is erroneous and liable to be set aside.

The mistake can be rectified if the Curt sets aside the proceedings taken after the death of the deceased party and directs that the case be retried in the presence of his legal representatives from the stage which it had reached immediately before the date of the death. This procedure places all the parties to the litigation in the same position in which they would have been if the legal representative had been impleaded at the propel time.

The afore-mentioned view was followed with approval by a Division Bench of this Court in Asa Rum, etc. v. Mehar singh, 1972 Cur. L J. 829.

12 In Firm Dittu Ram Eyedan and Others Vs. Om Press Co. Ltd. and Others, ) also, legal representatives were allowed to be brought on record at the stage of the second appeal and the case remanded to the lower Court for being dealt within accordance with lav from the appropriate stage.

In view of the settled law in this Court I do not think it would serve any useful purpose to advert to the two judgments cited by Mr. Mangat on this point, which are Promada Nath Roy Bahadur v. Abdul Mdijid Munshi AIR 1919 Cal. 242 and Tikam Singh and Others Vs. Likhi Singh and Others,

The first point, is, therefore, decided in favour of the Appellants.

On the second point, Mr. M.S. Sandhu has placed reliance upon Birbal and Others Vs. Harlal Sadasukh and Others, ) in which it has been laid down that the ignorance of the death of a party is a very good ground for not moving the Court to bring his legal representatives on record and is also a sufficient cause for not making the application in time. Mr. Sandhu, submits that since the deceased lived in a different village and the case was being prosecuted on his behalf by his legally constituted attorney who also did not care to inform the learned lower appellate Court about his death, it should be held that there is sufficient cause for the Appellants to file the application for bringing on record his legal representatives after this delay.

The afore-mentioned authority does help the Appellants but the broad proposition of law enunciated therein has not found tacit approval by a later Full Bench of this Court in Firm Dittu Ram Eyedan''s case (supra). In that case, the Full Bench has observed that absence of knowledge coupled with absence of negligence alone should constitute sufficient cause. Sitting in Single Bench, I am bound to decide this case in accordance with the principles of law laid down by a Full Bench of this Court. Consequently, it would have to be determined whether in the facts and circumstances of this case, the Appellants are guilty of such negligence as would disentitle them to claim the relief.

A brief reference to the application u/s 5 of the Limitation Act filed along with the main application, has already been made in an earlier part of this judgment. At the cost of repetition I might mention that notice dated August 20, 1973, issued by the registry does not appear to have reached the hands of the counsel for the Appellants. It was on December 6, 1973, when he was for the first time informed about the death of Manak Singh Respondent. At that stage, he made a usual request for the adjournment of the case for about one month which was granted. The application for bringing on record the legal representatives of Manak Singh deceased along with the application u/s 5 of the Limitation Act was actually filed before the caste was listed for hearing. No doubt, there is no mention in the application about the circumstances under which the same could not be filed within the period of one month, but I can take judicial notice of the fact that the Learned Counsel for the Appellants must have sent a letter to them and he must have filed these applications as soon as he was able to get instructions from them This default could perhaps have been taken serious notice of in other cases but since the legislative intention is against the passing of decrees for preemption and the duty of bringing on record the legal representatives of the deceased has been cast on the legal representatives themselves, I think the Appellants should not be nonsuited on the basis of such technical objection. If this objection were allowed to prevail, then the Appellants would be deprived of land contrary to the mandate of the legislature.

In the circumstances afore-mentioned. I hold that there was a sufficient cause for the Appellants to file this delayed application for bringing on record the legal representatives of Manak Singh deceastd. This application is, therefore, allowed and the legal representatives are allowed to be brought on the record.

Normally speaking, this case, after the grant of the aforementioned prayer, should have been sent to the learned lower appellate Court for deciding the appeal in accordance with law, but since u/s 2 of the Punjab Act No. ll of 1973, the learned lower appellate Court is under a duty to allow the appeal and to dismiss the suit for pre-emption filed by Manak Singh deceased, 1 do not find that any useful purpose would be served by remanding this case. In the circum-stancts, 1 allow this second appeal and dismiss the suit for pre-emption filed by Manak Singh deceased. However, there shall be no order as to costs.