1991 2 MPWN 11 ; 1991 0 Supreme(MP) 650

IN THE HIGH COURT OF MADHYA PRADESH
R.K. Varma, J.
Kashiram - Appellant
Versus
Laxman - Respondent
SA. No. 309 of 1981 (I)
Decided On : 25-01-1991

(1) Civil Procedure Code, 1908 – – O. 22, R. 9 and 4 – – setting aside of abatement – – LRs not brought on record for years together even after disclosure of their names – – abatement cannot be set aside.

       (2) Limitation Act, 1963 – – S. 5 – – delay in bringing LRs on record not explained by any sufficient cause – – cannot be condoned.

        Short Note

       1. The trial Court after enquiry, has submitted its findings dated 29.6.90 reporting that the deceased – respondent No.5 Dayaram has left behind his son legal representative Roopsingh and that the deceased – respondent No.6 Sitabai has left behind her daughter legal representative Nanubai.

       Held: Subsequent to the receipt of the aforesaid findings of the trial Court dated 29.6.90 the appellants have Wed three applications on 3.8.90 viz. (i) I.A. No. 3433/90 under O. 22, R. 9 CPC for setting aside abatement (ii) I.A. No. 3434/90 under section 5 of the Limitation Act for condoning delay in filing the application for bringing the LRs of deceased respondents on record and (iii) I.A.No. 3435/90 under O. 22, R. 4 CPC for bringing the LRs of the deceased respondents No.5 and 6 on record.

       2. The respondents No. 1 to 4 filed replies to the three applications of the appellants aforesaid opposing the substitution of LRs of deceased respondents' No. 5 and 6 and contending that the appeal has abated and the appellants have shown no sufficient cause for condoning delay and for setting aside abatement.

       3. It has been submitted on behalf of the respondents No. 1 to 4 that the names of the surviving LRs viz., Nanibai and Roopsingh of the deceased respondents No. 6 and 5 respectively were made known to the appellants on 27.9.88 (vide respondents' reply dated 26.9.88 to I.A. No. 2615/88) and 25.9.89 vide I.A. No. 3822/89 filed on behalf of respondents No.1 to 4 and as such, the aforesaid three applications of the appellants are mala fide and there is no sufficient cause for condoning delay in making such belated applications made on 3.8.90.

       4. From the Order – sheets and the applications and the replies there to, referred to herein – above, it is apparent that the appellants had been made aware about the death of respondent no. 6 Sitabai on 21.11.86 when the counsel for the respondents No. 1 to 4 stated in the Court that respondent No. 6 was dead. As regards the death of respondent No.6, the counsel for the respondents No. 1 to 4 had declared in Court on 19.7.88 that respondent No.5 had also died. But in spite of declaration of death of respondent No. 6 Sitabai and respondent No.5 Dayaram, the appellants filed an application I.A. No. 2615/88 for deleting the names of the deceased respondents No. 6 and 5 asserting that they have left behind no heir. In reply the respondents informed that the deceased Sitabai respondent No.6 left behind her daughter Nanubai who having not been brought on record the appeal abated. The respondents No. 1 to 4 also filed an application (I.A. No. 3822/89 dated 26.9.89) for dismissing the appeal as having abated on account of failure of the appellants to bring on record the legal representative Roopsingh s/o deceased Dayaram pursuant to the death of Dayaram even though the fact of death had been brought to the notice of the appellants (vide order – sheet dated 19.7.88).

       5. The appellants, however, continued their stand that the deceased respondents No.6 and 5 have left behind no heirs and the appeal did not abate in spite of the fact that the respondents No. 1 to 4 had brought to the notice of the appellants that Nanubai daughter of deceased – respondent No.6 and Roopsingh s/o deceased respondent No.5 had survived the deceased respondents.

       6. This Court directed an enquiry by the trial Court by order dated 2.2.90 as aforesaid. The trial Court submitted its report of findings dated 29.6.90 wherein it held that the deceased respondent No.5 Dayaram was survived by his legal representative Roopsingh and that the deceased respondent No.6 Sitabai was survived by her daughter legal representative Nanubar.

       7. From the sequence of the events and the circumstances of the case it is apparent that the appellants have been grossly negligent in taking stand that the deceased respondents No.6 and 5 were not survived by legal representatives in spite of information given by the respondents No.1 to 4 in their reply and the application aforesaid. It is not possible to hold in the circumstances that the appellants had sufficient cause in not moving an application for bringing the legal representative of the deceased respondents No. 6 and 5 on record and instead contending that the deceased respondents No.6 and 5 had not left behind any legal heirs. The appellants' application I.A. No. 3435/90 now filed on 3.8.90 for bringing the legal representatives of respondents No.6 and 5 who died respectively about four years and two years ago is highly belated and the delay is not explained by any sufficient cause and is on the contrary deliberate and not bona fide in the circumstances noticed herein – above. Appeal dismissed as abated.

Act Referred :
CIVIL PROCEDURE CODE : O.22 R.9, O.22 R.4
LIMITATION ACT : S.5

Advocates Appeared :
For the Appellant : S.S. Samvatsar
For the Respondent : R.C. Chhazad