Mohd. Khan vs Abdul Khan - 1990 Supreme(MP) 572

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : P.K. Saxena
For the Respondent: M.P. Bhachawat

Headnote:(1)Civil Procedure Code, 1908 – O.22, R. 4(4), (5) and 11 – sole respondent died – application for substitution of L.Rs. filed after 4 years due to laches and negligence cannot be allowed.
       (2)Civil Procedure Code, 1908 – O.22, R.10A – provision under – has no effect to postpone limitation.
       (3) Limitation Act, 1963 – S.5 – condonation of delay – laches and negligence apparent – delay cannot be condoned.
        Short Note
       This order will dispose of appellant's applications; I.A. No. 861 for substitution of legal representatives of deceased sole respondent Abdul Khan, I.A. No. 862/89, setting aside abatement of the appeal on death of sole respondent and I.A. No. 863/89 under section 5 of Limitation Act, 1963, for condonation of delay in making application.
       2. Held : Karnataka High Court Judgment in Doddappa Maritammappa Basaput and another v. Erappa Mudakappa Navalli and others, AIR 1982 Kar 191 holds that limitation for filing application to bring legal representatives on record commences from the date of death of deceased and Rule 10A (of order 22 CPC) has not the effect of postponing commencement to a date when Court is informed about it by the pleader. This legal position cannot be and is not disputed by Shri Saxena.
       3. Going through the evidence on the point recorded before the trial Court, Mohammad Khan (AW – 1) has studied upto Higher Secondary and Amjad Khan (AW – 2) up to class 7th. By Indian standards, they cannot be called semi – literate or illiterate. While according to Mohammad Khan (AW – 1) he is ignorant of pendency of appeal before the High Court and it is within the knowledge of his brother co – plaintiff Amjad Khan, Amjad Khan (AW – 2) would have the Court believe that it is Mohammad Khan, who has knowledge of the same. Amjad Khan in para 3 admits it to be correct that after death of a party his heirs prosecute the proceedings. It is also significant that according to Ex.D/2 execution proceeding of the decree passed in the suit were going on and the two appellants were represented by Shri Mehra Advocate and on 29.1.1986 in these execution proceedings Shri Rajoriya Advocate representing deceased Abdul Khan had intimated about his death.
       4. From the statements of Amjad Khan (AW – 2) and Mohammad Khan (AW – 1) it also appears that Mohammad Khan used to attend the hearing in execution of the decree. In this background the act of the appellants in not making any applications within limitation would appear to be act of laches, negligence and not attributable to initeracy or ignorance.
       5. Thus, even taking a too liberal view application to bring legal representatives on record dated 13.2.1989 for respondent Abdul Khan's death on 9.6.1985 would appear not justified. In the facts and circumstances of the case, the applications for condonation of delay, setting aside abatement and bringing legal representatives on record are rejected and as a consequence the appeal is held abated. AIR 1983 SC 186, AIR 1983 SC 1202 and AIR 1985 SC 1 distinguished. 1982 MPLJ 95 and AIR 1982 Kar 91 relied on. Appeal dismissed.