IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No. 39 of 2009. Reserved on: 2.8.2011. Decided on: 6.9.2011. __________________________________________________________ Shri Saran Dass … Petitioner. Versus Smt. Chinta Mani and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. G.C. Gupta, Sr. Advocate with Mr. Pawan Sharma, Advocate. For the respondents : Mr. Romesh Verma, Advocate. ___________________________________________________________ V.K. Sharma, J. (Oral). Order dated 7.3.2009 passed by the learned Additional District Judge, Shimla, H.P. allowing an application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 (in short ‘CPC’) and thereby ordering to bring on record legal representatives of the sole deceased appellant is under challenge in the present revision petition under Section 115 CPC. 2. Factual matrix is as follows. 3. The suit for grant of a decree of declaration and perpetual prohibitory injunction filed by the petitioner herein, Shri Saran Dass as plaintiff against the predecessor-in-interest of the respondents herein, namely, late Shri Shital Singh being the defendant was decreed by the learned trial Court as under:- “In view of my issuewise finding, the suit of the plaintiff is ordered to be decreed. The plaintiff is declared to be owner in possession of share of Dwarku Devi in suit land to the extent of ¼ share 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 comprised in khata No. 18/28 measuring 49.17 bighas situated at Prahni, Tehsil and Distt. Shimla, H.P. being only legal heir of Gangia husband of late Dwarku Devi. The defendant is restrained by way of permanent prohibitory injunction from interfering with the possession of plaintiff in respect of suit land. Keeping in view the facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared accordingly. It is also ordered that case file of mutation No. 133 which was retained vide order dated 6.4.2000 be sent back under safe cover. Record be completed and be consigned to the record room.” 4. Being aggrieved the defendant, late Shri Shital Singh carried the matter in appeal to the Court of the learned District Judge, Shimla District, Shimla, who made over the appeal to the Court of the learned Additional District Judge, Shimla for disposal in accordance with law. However, he died during pendency of the appeal before the learned First Appellate Court as communicated by the learned counsel, who was representing him, who sought adjournments for moving the requisite application for bringing his legal representatives on record and ultimately when none appeared, the appeal was dismissed in default vide order dated 30.5.2006. 5. Against the foregoing background, the respondents herein moved an application under Order 22 Rule 3 read with Section 151 CPC with the following prayers:- “(i) The present application may kindly be allowed and the legal heirs of late Shri Shital Singh may be ordered to be brought on record. (ii) That the delay in filing the present application may kindly be condoned. 3 (iii) That the abatement of the appeal may kindly be set aside.” 6. It was averred that FAO No. 359 of 1999, titled as Shri Saran Dass versus Shri Shital Singh was listed for today (25.9.2006) in the Hon’ble High Court of Himachal Pradesh. In that case the present applicants filed an application intimating the factum of death of late Shri Shital Singh on 25.12.2005. On 25.9.2006 before the Hon’ble High Court, it was pointed out by the learned counsel appearing for the appellant in that case that the legal heirs of late Shri Shital Singh have not been brought on record to prosecute the appeal titled Shri Shital Singh versus Shri Saran Dass which was pending before the learned Additional District Judge, Shimla. 7. It was further averred that the applicants had no knowledge about the pendency of the civil appeal titled as Shri Shital Singh versus Shri Saran Dass in the court of the learned Additional District Judge, Shimla. On enquiries, it was revealed that the appeal referred to above was pending before the learned Additional District Judge and for want of necessary steps for prosecution of the appeal, the same was dismissed in default on 30.5.2006. 8. The further averments are to the effect that applicants being wife and minor children of late Shri Shital Singh have succeeded to his estate. Both the minors are in the care and custody of applicant No.1 being their mother-cum-natural guardian, who was representing them. 9. According to the applicants, the application could not be filed immediately after the death of late Shri Shital Singh, who 4 died on 25.12.2005, as they had no knowledge about the pendency of the appeal. They were neither negligent nor there was any intentional lapse to file the application in time. The delay in question had taken place under unavoidable circumstances. They came to know about the pendency of the appeal only on 25.9.2006 and since they were not negligent, the delay in filing the application deserved to be condoned. There were sufficient grounds for condoning the delay in filing the application. 10. Lastly, it was stated that the applicants were not going to be benefited by causing the delay in filing the application. 11. The application was opposed on behalf of the respondent (petitioner herein) on preliminary objections regarding maintainability and limitation. On merits, it was admitted that FAO No. 359 of 1999 was pending before the Hon’ble High Court in which an application was filed on behalf of the applicants informing the Court about the death of Shri Shital Singh on which the non- applicant filed an application for bringing on record the legal heirs of the deceased, Shri Shital Singh. However, it was averred that the record of the case would show that the case was fixed before the Court on 28.12.2005 for arguments on which date the counsel for the deceased took adjournment and thereafter, an application was filed for leading additional evidence under the signatures of deceased, Shri Shital Singh. The counsel appeared on 1.4.2006 (in fact 6.3.2006) and reported before the Court that the appellant had died and took time for taking steps for filing an application on behalf of the legal heirs. However, no application was filed and the appeal was dismissed on 30.5.2006 for “non-appearance of the counsel as having abated”. Even thereafter, the applicants did not 5 move any application and the present application has been filed after expiry of about four months from dismissal of the appeal. 12. It was further averred that both the appeals before the Hon’ble High Court and before the learned First Appellate Court were being prosecuted on behalf of deceased, Shri Shital Singh by the same counsel and it is not believable that the applicants were not aware of the appeal pending in the learned First Appellate Court. It was also not disclosed in the application as to from whom the inquiries were made about pendency of the appeal and the date on which the inquiry was made. The applicants have sworn a false affidavit in support of the application, which in no case can be sufficient cause for setting aside the abatement “which is automatic after expiry of 60 days of the death”. It was also alleged that since no formal application for appointment of guardian for the applicants, who were said to be minor, was made and their dates of birth were also not disclosed, the application was neither competent nor maintainable. 13. It was denied that the applicants came to know about the pendency of the appeal before the learned lower Appellate Court only on 25.9.2006. In case they had no knowledge about the appeal, it is not understood as to how and from whom the factum of death of Shri Shital Singh came to the knowledge of the counsel appearing for him, who took time for filing an application on behalf of the “legal heirs”. The applicants have intentionally not moved the application within the period of limitation. It was denied that the delay had taken place due to unavoidable circumstances. No separate application has been filed by the applicants either for condonation of delay or for setting aside the abatement. There are 6 no grounds for condonation of delay. The applicants have not realized that the Will, on the basis of which the deceased was claiming a right in the property of deceased, Smt. Dwarku, was a forged document, intentionally did not file the application. However, after realizing that the same may have effect on the appeal before the Hon’ble High Court and they may have to return the money received by the deceased on the basis of succession certificate obtained by misleading the Court, the present application has been filed on false and frivolous grounds. 14. Rejoinder refuting the averments in the reply and instead re-iterating those set up in the application was filed. 15. On the above pleadings, the learned First Appellate Court had framed the following issues:- 1. Whether there are sufficient grounds for allowing the application moved by the applicants? OPA. 2. Whether the application filed is not competent and maintainable? OPR 3. Relief. 16. After the parties led evidence and were heard by the learned First Appellate Court, the application was allowed, as already noticed. 17. I have heard the learned counsel for the parties and gone through the record. 18. Admittedly, the deceased, Shri Shital Singh had died on 25.12.2005. The application seeking to bring his legal representatives on record though dated 26.9.2006 was in fact filed on 11.10.2006, that is, after 9 months and 16 days from the date of death. However, according to the applicants, they came to know 7 about the pendency of the appeal before the learned First Appellate Court only on 25.9.2006, when they moved an application in FAO No. 359 of 1999, titled as Shri Saran Dass versus Shri Shital Singh, intimating the factum of death of late Shri Shital Singh on 25.12.2005, pursuant to which the learned counsel for the opposite side pointed out that legal heirs of late Shri Shital Singh have not been brought on record to prosecute the appeal titled as Shri Shital Singh versus Shri Saran Dass which was pending before the learned Additional District Judge, Shimla. 19. In view of the above, in case the starting point of limitation for moving the application for bringing on record legal representatives of deceased, Shri Shital Singh is taken to be the date of his death, that is, 25.12.2005, apparently, the same was beyond the period of limitation of 90 days and on the same analogy beyond the further period of limitation of 60 days for setting aside abatement, if any. However, if the starting point of limitation is taken from the date of knowledge, that is, 25.9.2006, as averred by the petitioners, the application having been moved on 11.10.2006, that is, within 16 days, was well within time. 20. The averments that the applicants came to know about the pendency of the appeal before the learned First Appellate Court only on 25.9.2006 during the course of hearing in FAO No. 359 of 1999 before this Court have been re-iterated by applicant No.1, Smt. Chinta Mani, who is wife of deceased, Shri Shital Singh, as AW1. 21. On the other hand, it is re-iterated on behalf of the petitioner that since the learned counsel who was representing the deceased, Shri Shital Singh, had intimated the learned First 8 Appellate Court about his death on 6.3.2006 and had sought time for taking requisite steps to bring his legal representatives on record for which he sought adjournments on 1.4.2006, 10.4.2006 and 2.5.2006, it can be safely concluded that the applicants were well aware of pendency of the appeal which ultimately came to be dismissed in default on 30.5.2006. 22. Reliance has been placed on behalf of the petitioner on Balwant Singh (Dead) versus Jagdish Singh & Ors., AIR 2010 Supreme Court 3043 (paras 13 & 14), Ranbir Singh and others versus Parduman Singh and others, 2011 (1) Him. L.R. 327 (paras 8 to 11) and judgment dated October 4, 2005, rendered by a learned Single Judge (Chief Justice) of this Court in CMPMO No. 435 of 2004, Shri Hem Raj Thakur versus Smt. Parwati and others. 23. Per contra, the applicants (respondents herein) have relied upon Mithailal Dalsangar Singh and others versus Annabai Devram Kini and others, (2003) 10 Supreme Court Cases 691 (Head Notes E and F, Paras 8 & 9), Sardar Amarjit Singh Kalra (Dead) by LRs. Versus Pramod Gupta (Smt) (Dead) by LRs. and others along with connected appeals, (2003) 3 Supreme Court Cases 272 (Head Note C paras 26 & 31), Punjab National Bank and another versus Smt. Govind Kaur and others, 2004 (1) Shim.L.C. 414 (paras 9 to 11), Devi Roop versus Smt. Devku and others, Latest HLJ 2006 (HP) 802 (para 20) and Shamsher Singh and another versus Chain Ram and others, Latest HLJ 2008 (HP) 423. 9 24. True it is that on 6.3.2006 Mr. Pradeep Verma, Advocate, learned counsel for deceased, Shri Shital Singh had stated before the learned First Appellate Court that the appellant had since died and had sought time for moving an appropriate application to bring his legal representatives on record and had thereafter sought adjournments for this purpose on 1.4.2006, 18.4.2006 and 2.5.2006 whereafter the appeal was ultimately dismissed in default on 30.5.2006. However, knowledge about pendency of the appeal cannot be attributed to the applicants on this score alone when AW1, Smt. Chinta Mani, who was subjected to quite lengthy and strenuous cross-examination has denied that intimation abut the death of deceased, Shri Shital Singh was conveyed to the learned counsel by her, who in turn had informed the Court about it. This inference is further fortified from the fact that the applicants themselves had moved an application intimating the factum of the death of Shri Shital Singh during pendency of FAO No. 359 of 1999, titled as Shri Saran Dass versus Shri Shital Singh, consequent upon which the respondent herein, who was the appellant in the aforesaid FAO No. 359 of 1999 had moved the requisite application for bringing on record legal representatives of deceased, Shri Shital Singh and accordingly, they were brought on record. Thus, in case the applicants who could have taken care of their being brought on record as legal representatives of deceased, Shri Shital Singh in FAO No. 359 of 1999, it can be reasonably inferred that in case they had knowledge about pendency of the appeal before the learned First Appellate Court, they, in all probability, would have taken steps for their representation as legal representatives of late Shri Shital Singh in the appeal as well and 10 would not have allowed the same either to abate or dismissed in default. 25. In view of the above, the irresistible conclusion that emerges is that the applicants had come to know about pendency of the appeal before the learned First Appellate Court only on 25.12.2005 and as such the application was well within time from the date of knowledge. While arriving at this inference, the facts and circumstances of the case that applicant No.1 (AW1) Smt. Chinta Mani is a house wife, who has studied only upto 8th standard and applicants No. 2 & 3 were minor at the relevant time, can also not be lost sight of. Even otherwise though in the heading of the application the relevant provisions of the Limitation Act and CPC, such as, Section 5 and Rule 9 of Order 22, respectively, were not mentioned, yet as an abundant caution, the applicants had incorporated the requisite prayers for condoning the delay in filing the application and setting aside abatement, if any, in the prayer clause thereto. 26. In the result, the petition fails and is accordingly dismissed with no order as to costs. 27. The parties through their learned counsel are directed to put in appearance before the learned First Appellate Court on 14.9.2011. The requisitioned record be sent back so as to reach well before the date fixed. (V.K. Sharma) September 6, 2011. Judge. (cr)