Ram Kumar and Another vs Jai Pal Singh and Another

Dua, J.—This second appeal by the vendee arises out of a pre-emption suit which has been decreed by both the Courts below.

It appears that the plaintiff had died when the appeal from the original decree was pending in the lower appellate Court and his legal representatives were duly brought on the record. Unfortunately, the legal representatives of the deceased were not shown as parties in the judgment or the decree, with the result that in this Court the deceased plaintiff was shown as a respondent in the memorandum of second Appeal. On 30th July 1962, on behalf of the appellant, an additional ground was sought to be raised in the memorandum of appeal based on the fact that the plaintiff had died in the lower appellate Court and that his legal heirs and representatives could not peruse the right of pre-emption it being a personal right peculiar to the person who instituted the suit : in other words, that the right of pre-emption is not a heritable right which devolves on the legal heirs. In spite of the appellant being conscious of the death of the plaintiff in the Court below, he however did not choose to seek amendment of the memorandum of appeal in this Court till as late as 26th October 1962. The respondent has on these facts urged that this appeal as instituted was incompetent and the addition of the legal representatives of the plaintiff on 26th October 1962 does not cure the defect and there is no justification for condoning the delay.

The appellants'' learned counsel has, in his usual persuasive manner, contended that the mistake of the Court should not be allowed to injure any litigant''s interest; and it should be more so in the case of women. It is emphasised that if the office of the lower appellate Court had discharged its functions efficiently and diligently, then the names of the legal representatives of the deceased would have been shown both in the judgment and the decree. Their omission there from led the Advocate for the appellant in this Court to omit their names and to make only the deceased a party in the memorandum of appeal. The contention, as put, is certainly sound, but on the facts of this case, it appears to me to be wholly untenable. On 30th July 1962, the learned counsel was aware of the death of the plaintiff, and indeed he tried to utilise this very circumstance as an additional ground of attack to the right of the legal representatives to enforce the right of pre-emption. Being conscious of it, he for reasons best known to him did not choose to make the legal representatives parties till 26th October 1932 No explanation worth the name is forthcoming for this inordinate delay. On the circumstances of this case, therefore, the mistake of the Court is not the dominant factor for the inordinate delay; but the basic infirmity on which I am bound to throw out this appeal is the negligence and laches on the part of the appellant in not impleading the legal representatives from 30th July 1962 to 26th October 1962.

The counsel has very eloquently contended that this unfortunate lapse is likely to result in failure of justice in as much as the right of pre-emption is indisputably a personal right which does not devolve on the legal representatives of the plaintiff in the present case. Without expressing any opinion on the soundness or otherwise of this contention, in my opinion the concept of justice has to be looked at in the background of the legal position. If the appeal is barred by time, then, in my opinion, it would lead to failure of justice to hold it to be within limitation without any cogent ground, for, discretion to extend limitation must be exercised on well-recognised judicial principles. The sphere of discretion is confined to what a Court ought to do and not what the Court wants or likes to do.

For the foregoing reasons, this appeal fails and is hereby dismissed but without costs.