1991 Supreme(Raj) 917
RAJASTHAN HIGH COURT
N.K.Jain, J.
State - Appellant
Versus
Prem Raj - Respondent
S.B. Civil Second Appeal Nos. 193, 472 of 1974.
Decided On : 28-10-1991
An application to bring the legal representatives of a deceased respondent on record must be filed within the time prescribed by law and the delay in filing the application must be condonable.
Headnote:
None
Fact of the Case:
The appellant filed an application under Order 22 Rule 4 of the C.P.C. to bring the legal representatives of the deceased respondent on record after the appeal had abated due to the appellant's failure to take appropriate steps within time. The appellant claimed that he came to know about the death of the respondent only on the date of the hearing and that he had taken necessary steps without any lapse of time.
Finding of the Court:
The court held that the appellant had not explained sufficient cause for the delay in filing the application and that the delay was not condonable. The court also noted that the appellant had not filed an application to set aside the abatement of the appeal.
Issues: Whether the appellant had shown sufficient cause for the delay in filing the application to bring the legal representatives of the deceased respondent on record.
Ratio Decidendi: The court held that the appellant had not shown sufficient cause for the delay in filing the application and that the delay was not condonable. The court also noted that the appellant had not filed an application to set aside the abatement of the appeal.
Final Decision: The court dismissed the application and held that the appeal stood abated.
JUDGMENT
1. - These second appeals are pending since 11.3.1974 against the judgment and decree dated 18.10.73 passed by learned Addl. Dist. Judge, Sirohi in C.A.D. No. 45/71 and C.A.D. No. 44/71 which arise from the judgment and decree dated 1.6.71 of learned Civil Judge, Sirohi passed in civil suit No. 90/70. Both these appeals were decided by the first Appellate court by a common judgment dated 18.10.73. Hence, they are being disposed of by this common judgments.
2. During the pending appeal Prem Raj respondent has expried, when the came up for consideration on 25.7.85, learned Counsel for the respondents submitted that Prem Raj died long back hence appeal has abated. On this learned Counsel for the appellant sought time to ascertain the fact and to seek instructions to take proper steps Mr. K.C. Samariya, has been appointed as Guardian Ad- litem for minors Dharamendra Kumar Chandra Prakesh, puneet Kumar and Bhupesh Kumar, legal representatives of Nand Kishore and Gulab chand.
3. Mr. R.C. Maheswari, learned Counsel for the appellant state has prayed that the application under Order 22 Rule 4 of the C.P.C. be allowed and legal representatives of the deceased Prem Raj be taken on record viz. Smt. Mohini, Shri Babulal, Shri Biharilal, Shri Gulab Chand, Shri Shankerlal and Shir Nand Kishore and also prayed that legal representatives of deceased legal representatives viz. Gulab Chand, Babulal and Nand Kishore be also taken on record.
4. Mr. I.J. Lodha, learned Counsel on behalf of legal representatives Mohini and Behari has submitted that the application has been filed after abnormal delay and only on 30.9.85 Whereas Prem Raj expired on 2.3.1979 and the period for setting aside the abatement has been already been expired and on application for setting aside the abatement has been filed. He has also submitted that a bare perusal of the application filed by the appellant shows that the appellant has not explained sufficient cause of delay of each days. He has further submitted that our of six legal representatives of deceased respondent Prem Raj four have expired. The appellant has not moved application for bringing legal representatives of deceased legal representatives except for deceased legal representatives No. 3, 4 & 6, Which is also time barred and, therefore this appeal has abated.
5. I have heard respective arguments on the applications and have perused the record carefully.
6. In Union of India v. Ramchandran, AIR 1964 SC 215 it has been observed that the Court is not to involve its inferent powers under Section 151 C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abate on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on an account of its failure to satisfy the Court that there was sufficient cause to not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time. It has also been held that mere allegation about belated knowledge of death of opposite party is not sufficient, reasons leading to not knowing of death within reasonable time must be stated.
7. In State of Gujarat v. Sayed Mohd. Baquir, AIR 1981 SC 1921 Wherein time barred application for bringing legal representatives of deceased respondent on record no cause shown for condonation of delay for setting aside abatement, the appeal was dismissed in view of abatement and it has been held that strong case on merits is not a ground for condonation of delay.
8. In Madan Niak v. Mst. Hansulala Devi and Ors., AIR 1983 SC 676 , it has been observed that it may be mentioned that no specific order for abatement of a proceeding under one or the other provision of Order 22 is envisaged, the abatement takes place on its own force by passage of time. In fact, a specific order is necessar
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