Noor Mohd. vs State of M. P. - 1997 Supreme(MP) 1086

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : Kamal Jain.
For the Respondent: A.M. Naik.

Headnote:(1) Limitation Act, 1963 – S.5 – application for condonation of delay – liberal approach should he taken.
       (2)Civil Procedure Code, 1908 – O.22 R.9 – application for setting aside abatement – applicants poor villagers – application should he allowed and opportunity to contest the case on merits should be given.
        Short Note
       1. This appeal has been preferred against order dated 13.12.1996 passed by the Additional District Judge, Dabra, whereby the application of the plaintiff – appellants for setting aside abatement has been rejected.
       2. The facts briefly are that a suit was filed by Daulat Sherkhan, Noor Mohd. and Nasir Mohd. for declaration and injunction in the year 1977 which was dismissed. An appeal was preferred before the District Judge on 16.4.1984 which was pending. Ultimately it was transferred to the Court of the Additional District Judge, Dabra. During the pendency of the appeal plaintiff/appellant Daulat Sherkhan died and an application for setting aside of the abatement was moved by legal representatives of the deceased Daulat Sher Khan on 1.9.1996 but no date was mentioned as to when the deceased died. It was supported by an affidavit. Written objection was filed by the respondent alleging that the application was batted by time and daughters had not been brought on record. Inspite of the knowledge no application was given within time. No letter of the learned counsel on the basis of which information was alleged was filed.
       3. The learned Court below after hearing the parties rejected the application. Hence this appeal.
       4. Learned counsel for the appellants contended that appellants being poor villagers had no knowledge that legal representatives are to be brought on record and that too within specified time. He also urged that the case was pending at Gwalior which was transferred to the Court at Dabra and this fact was also not within the knowledge of the appellants. The appellants had also no information that any case was pending and deceased father did not tell them. He placed reliance upon Collector, Land Acquisition vs. Mst. Katiji and Others, AIR 1987 SC 1353 and Abdul Lattif Molla vs. Fazal Ali Karikar, AIR 1979 Calcutta 353 and latest pronouncement of the Apex Court reported in Ramaravalu Gavade vs. Sataba Gavade, 1997 (1) MPWN 205. The learned counsel for the respondent, on the other hand, contended that the legal representatives came to Court with wrong assertion that they had no knowledge of the pendency of the case. He pointed out that the case was transferred to Dabra and notice was sent and this notice was received by the appellants. It is, therefore, incorrect to say that they had no knowledge. He also contended that if a liberal view is taken the provisions of O.22 R.9 CPC may become redundant.
       5. I have considered the contentions raised before me by the learned counsel for the parties. It has been specifically held by the Apex Court in AIR 1987 SC 1353 (supra) that in the matter of condonation of delay Courts should take a liberal approach. The Apex Court by way of illustration detailed the circumstances therein. In the Calcutta decision relied upon by the learned counsel for the appellants referred to above, delay for 7 years was condoned, inspite of the fact that they were ignorant and did not know at all the statutory provisions of law or that it was at all necessary that legal heirs be substituted. In the latest pronouncement of the Apex Court it has been observed that the appellants were illiterate farmers. The appropriate steps should have been taken by the counsel for the appellants on proper advice. As the counsel did not properly advise the appellants to take necessary steps, delay had occasioned. In that case even an application for setting aside the abatement was not moved and the Apex Court condoned the delay and set aside the abatement. No doubt it is true that the case in hand is shown that a notice was sent which purports to have been signed by the L.R. of Daulat Sher Khan. The learned counsel for the appellants disputes this fact and contended that no enquiry was held in this regard. This contention also does not appear to be without force. It appears that the Court itself observed this fact and mentioned in the impugned order though the fact as to whether any notice was served on Deen Mohd. Khan was neither alleged in the application nor in the reply. In this view of the matter it can safely be safely that an enquiry should have been made as to whether the appellants had any knowledge or not of the pendency of the case. Even if it is assumed that they had knowledge they did not move proper application within time. In that case too in view of the latest pronouncement of the Apex Court and taking into consideration the fact that the appellants are poor villagers I think in the interest of justice the abatement must be set aside and the parties must be given an opportunity to contest the case on merits.
       6. Consequently the appeal is allowed. The abatement is set aside. Let necessary amendment be made before the appellate Court in the memorandum of appeal. The learned appellate Court is directed to dispose of the appeal expeditiously as it is a very old appeal of 1984. It be decided within two months from the date the parties appear before it. The parties are directed to appear before the appellate Court on 30.9.1997. Costs of this appeal shall remain easy.