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1997 Supreme(P&H) 1635
PUNJAB & HARYANA HIGH COURT
B.Rai, J.
Bija
Versus
Raja Ram
Regular Second Appeal No. 2408 of 1979,
Civil Miscellaneous No. 1841 of 1997,1841 of 1997,
Decided On : NOVEMBER 21, 1997
An appeal abates on the expiry of the prescribed period for bringing the legal representatives of a deceased party on record, and the amendment made in Rule 3 of Order 22 C.P.C. in 1992, which provides that the suit shall not abate against the deceased plaintiff and the judgment may be pronounced notwithstanding his death, is not retrospective in operation and does not revive appeals which have already abated.
Headnote:
ABATEMENT OF APPEAL - DEATH OF APPELLANT - CONDONATION OF DELAY - SUFFICIENT CAUSE - AMENDMENT OF RULE 3 OF ORDER 22 C.P.C. - RETROSPECTIVE OR PROSPECTIVE EFFECT - INTERPRETATION.
Fact of the Case:
Bija, the sole appellant in a civil appeal, died during the pendency of the appeal. His legal representatives filed an application under Order 22 Rule 3 C.P.C. to bring themselves on record and an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 22 Rule 3 C.P.C. The respondents filed an application for dismissal of the appeal as having abated.
Finding of the Court:
The court held that the appeal stood abated on the expiry of 150 days from the date of death of the appellant, as the legal representatives failed to file an application to bring themselves on record within the prescribed period. The court further held that the amendment made in Rule 3 of Order 22 C.P.C. in 1992, which provides that the suit shall not abate against the deceased plaintiff and the judgment may be pronounced notwithstanding his death, is not retrospective in operation and does not revive appeals which have already abated.
Issues: 1. Whether the appeal stood abated due to the failure of the legal representatives to file an application to bring themselves on record within the prescribed period? 2. Whether the amendment made in Rule 3 of Order 22 C.P.C. in 1992 has retrospective or prospective effect?
Ratio Decidendi: 1. The court held that the appeal stood abated as the legal representatives failed to file an application to bring themselves on record within the prescribed period of 90 days from the date of death of the appellant, as provided under Article 120 of the Limitation Act. The court further held that the delay in filing the application was not condoned as the legal representatives failed to show sufficient cause for the delay. 2. The court held that the amendment made in Rule 3 of Order 22 C.P.C. in 1992, which provides that the suit shall not abate against the deceased plaintiff and the judgment may be pronounced notwithstanding his death, is not retrospective in operation and does not revive appeals which have already abated. The court relied on the decision in Banta Singh v. Smt. Santi and Ors., 1977 PLJ 452, which held that amendments to procedural laws are not retrospective unless expressly made so or there is some indication in the provision which makes it of retrospective operation.
Final Decision: The court dismissed the applications filed by the legal representatives of the deceased appellant and held that the appeal stood abated.
B.Rai, J.
1. There are two applications, one under Order 22 Rule 3 C.P.C. for bringing on record the Jegal representatives of sole Appellant Bija son of Sammu and another Under Section 5 of the Limitation Act, for condonation of delay in filing the application under Order 22 Rule 3 C.P.C.
2. Bija son of Sammu filed civil suit No. 449 on 22.7.1967, for declaration to the effect that he has become full and absolute owner in possession of the suit land mentioned in the schedule attached with the plaint by lapse of time with a consequential relief by way of permanent injunction directing the defendants to vacate the possession of the suit property. The suit was contested by the defendants taking various pleas. After full trial, the suit was decreed with costs in favour of Bija plaintiff and he was declared to be the owner of the suit property. Consequently, the defendants were directed to vacate the possession vide judgment and decree dated 6.1.1975. The defendants feeling aggrieved by the judgment and decree of the trial Court filed Civil Appeal No. 316/13 of 1978 before the Additional District Judge, Karnal. The appeal was accepted judgment and decree of the trial court were set aside and the suit of Bija Plaintiff-respondent was dismissed living the parties to bear their own costs.
3. Bija having failed in the first appellate Court took the matter to this Court by filing Regular Second Appeal No. 2408 of 1979. During the pendency of the appeal, Bija sole appellant died on 25.7.1988. The legal representatives of Bija filed an application under Order 22 Rule 3 C.P.C. It is pleaded in the application that Bija was being represented by Mr. P.S. Jain and Mr. V.M. Jain, Advocates, Mr. P.S. Jain, Senior Advocate, expired while Mr. V.M. Jain, joined the superior Judicial Service Haryana. Bija died leaving behind the legal representatives mentioned in para 3 of the application. According to the applicants, none of the representatives was aware of the pendency of the appeal till the receipt of the letter Annexure A from the office of Mr. R.S. Mittal, Senior Advocate. Case of the applicants is that on receipt of the said letter, they came to Chandigarh and made enquiries about the case. They contracted the counsel for taking necessary steps in the matter. They were advised to obtain a copy of death certificate and power of attorney of all the legal representatives of Baja deceased. Their further case is that they were residing at different places and as such took some time in obtaining signatures and thumb impressions of all the legal representatives on the power of attorney. It is further pleaded that if abetment is not set aside, they would suffer substantial injury. They further pleaded that the rule of abetment is working great hardships to the litigants and their representatives therefore this court was pleased to amend the rules according to which now it is not necessary to bring on record the legal representatives of deceased party. There is delay of 8 years 3 months and 8 days in filing application, Alongwith the application under Order 22 Rule 3 C.P.C. an application Under Section 5 of the Limitation Act, 1963 was filed on the same grounds as set out in the application under Order 22 Rule 3 C.P.C. It is also pleaded that if the limitation is reckoned from the date of knowledge then the application is within time. According to them, they have not gained in any manner in not filing the application in time. The delay according to them was beyond their control. On these grounds, a prayer has been made for condonation of delay in filing the application for bringing on record the legal representatives of the deceased on record and also to set a side abatement.
4. On notice, defendant-respondents filed reply in the form of affidavit of Raja Ram son of Sadhu Ram, resident of village Kakehri Tehsil Guhla, Distt. Kaithal, contesting the claim of the applicants. It was set out in the affidavit that the application Under Section 5 of
