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1981 Supreme(Ori) 133
Orissa High Court
R. N. MISRA, C.J. AND R. C. PATNAIK, J.
State of Orissa - Appellant
Versus
Purnananda Samal - Respondents
First Appeal No.62 of 1976
Decided On : 1 December 1981
Addl. Govt. Advocate, for Appellant.
The court has the discretion to condone delay in filing an application for substitution of legal representatives, but this discretion should not be exercised in cases where the appellant has been negligent or has not provided a satisfactory explanation for the delay.
Headnote:
ABATEMENT OF APPEAL - SUBSTITUTION OF LEGAL REPRESENTATIVES - DELAY IN FILING APPLICATION - CONDONATION OF DELAY - PRINCIPLES - COURT'S DISCRETION - STATE'S OBLIGATION TO EXHIBIT IDEAL CONDUCT IN LITIGATION.
Fact of the Case:
Plaintiff-appellant filed an appeal against the judgment and decree of the trial court. During the pendency of the appeal, eight respondents died. The appellant filed an application for substitution of legal representatives and condonation of delay in filing the application. The appellant claimed that the deaths were not known during the suit and steps for substitution could not be taken before the suit was disposed of.
Finding of the Court:
The court held that the appellant was negligent in not taking steps for substitution in respect of the deceased respondents. The court also held that the appellant's explanation for the delay in filing the application for substitution was not satisfactory. The court further held that the State has an obligation to exhibit ideal conduct in litigation and that the appellant's conduct in this case fell short of that standard.
Issues: 1. Whether the appellant was negligent in not taking steps for substitution in respect of the deceased respondents? 2. Whether the appellant's explanation for the delay in filing the application for substitution was satisfactory? 3. Whether the State has an obligation to exhibit ideal conduct in litigation?
Ratio Decidendi: 1. The court held that the appellant was negligent in not taking steps for substitution in respect of the deceased respondents because the appellant had not made proper enquiries to ascertain the state of the defendants on the date the suit was filed. 2. The court held that the appellant's explanation for the delay in filing the application for substitution was not satisfactory because the appellant had not provided sufficient details about how, by whom, and in what manner the enquiry for ascertaining the names of the legal representatives was being conducted. 3. The court held that the State has an obligation to exhibit ideal conduct in litigation because the State has certain advantages in pursuing litigation and should therefore set an example for citizens.
Final Decision: The court rejected the appellant's prayer for substitution and leave to add the legal representatives of one of the respondents. The court also held that the appeal had abated as against the eight respondents.
Judgement
JUDGEMENT :- This is a plaintiff s appeal against the judgement and decree of the learned Subordinate Judge of Cuttack. The suit was instituted on 11-4-1970, the judgement was delivered on 18-12-1975 and the decree is dated 8-1-1976. The first appeal was presented in this Court on 19-3-1976. 8 respondents were found to be dead in this court though death in each case excepting one had occurred long before. The particulars are given below :-
Serial Number
Date of application for substitution.
1 2 3 4 5
1. R.48 23-8-1970 Feb. 1977 1-2-1978
2. R.30 4-5-1972 -do- -do-
3. R.104 15-1-1973 -do- -do-
4. R.21 4-5-1974 -do- -do-
5. R.101 4-7-1974 -do- -do-
6. R.33 25-1-1976 -do- -do-
7. R.15 23-11-1976 -do- -do-
Number of the respondent.
Date of death. Date of knowledge of the appellant.
Apart from these deaths, respondent No.29 was dead on 1-6-1969, yet in the suit filed on 11-4-1970, he was impleaded as a defendant.
2. From the record of the first appeal, it appears that notices were taken out to these respondents along with others and in view of the report of the process server that these respondents were not found at the addresses given, fresh notices were directed to these respondents by order dated 14-1-1977. A memorandum was filed on behalf of the appellant on 27-1-1977 to the following effect :-
"On 14-1-19717, two weeks time was granted for fresh service on the respondents. As the correct address of the respondent could not be collected two weeks further time may be granted in the above noted case."
On 2-3-1977, on the basis of the said memorandum, the following order was made :-
"As requested further ten days time allowed to comply order No.5 dated 14-1-1977, failing which place before the Bench for dismissal as against concerned respondents......"
On 8-4-1977, two weeks further time was obtained from the Court for filing of requisites for service to these respondents. On 18-8-1977, the matter was again listed, as notwithstanding the order dated 8-4-1977, steps were not taken. A week s time was allowed that day for complying with the earlier direction. No action was taken by the appellant to comply with these orders. Therefore, the matter was relisted on 21-9-1977, when a further extension by one week was granted. Requisites were not filed against these respondents and notice to them was not taken. On 1-2-1978, the application for substitution as against these deceased respondents was made along with an application for setting aside abatement and for condoning the delay in making of the application.
3. In regard to respondent No.29 who died prior to the institution of the suit, learned Additional Government Advocate says that the legal representatives should be brought on record in exercise of powers under O.1, R.10 of C.P.C. Sub-rule (2) of that Rule provides :-
"The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." This provision does vest wide powers in the Court but the same has to be exercised in a prudent and judicious manner. It is the obligation of every litigant to make appropriate enquiries and obtain requisite information about the state of the defendants on the date the suit is filed. If a reasonable enquiry had been made prior to the institution of the suit, the information which has now been in possession of the appellant could have been obtained and a dead person could not have been added as a defendant. To add the legal representatives of respondent No.29 for the first time at this stage would certainly be prejudicial to the leg
