Judgment:
ORDER
Abdul Hadi, J.
1. Consequent upon the death of Pavadaisami Padayachi, the 1st respondent in both the second appeals, viz., S.A. Nos. 1663 and 1664 of 1982 on 22.4.1990, this petitions have been filed for bringing his legal representatives on record, for setting aside the abatement and for excusing the delay in filing the petition to set aside the abatement. The delay in each case is very much inordinate, it being 1871 days. The relevant petitions to excuse the said delay are C.M.P. No. 16385 of 1995 in S.A. No. 1663 of 1982 and C.M.P. No. 16386 of 1995 in S.A. No. 1664 of 1982. S.A. No. 1683 of 1982 is against the concurrent decree passed by the courts below for specific performance of the suit sale agreement, in favour of the said Pavadaisami Padayachi S.A. No. 1664 of 1982 is against the concurrent dismissal of the suit for redemption filed by the original mortgagor and the alleged subsequent purchasers against the said Pavadaisami Padayachi.
2. The averments in the affidavits filed in support of the abovesaid C.M.P. Nos. 16385 and 16388 of 1995 are almost same. The said affidavits have been filed only by the 6th appellant in S.A. No. 1663 of 1982, though it is stated that, that affidavit is on behalf of the other appellants-petitioner. (On the whole, there are seven appellants in S.A. No. 1663 of 1982 and three appellants in S.A. No. 1664 of 1982). The relevant allegations in the said affidavit are as follows:
Pavadaisami Padayachi... died on 22.4.90 leaving 1..9... all residing at Karaikudi, Kaperquary, S. A. V. District. This we came to know only when the same was informed by our counsel, who in turn was informed by the other side counsel. Our counsel informed that the above appeal has been listed for arguments and at that time our counsel was also informed by the other side counsel about the death. Immediately our counsel requested the other side to furnish the legal heirs of the deceased 1st respondent and the other side counsel by a letter dated 17.10.1995 furnished the legal heirs of the deceased....
Immediately the same was informed to us and he present petitions are filed. Actually there is no delay as we are not aware of the death and under Order 22, Rule 10-A, it is the duty of the otherside counsel to inform the same before the courts, as to enable the other side to take appropriate steps. In this case petition to bring the legal heirs of the deceased 1st respondent is filed immediately after furnishing the details by the other side counsel. For the purpose of limitation there is a delay and the delay is neither wilful nor wanton....
3. First of all it must be noted that apart from the fact that the above said affidavit is vague in many respects, it has been filed only by the 6th appellant, though it is stated to be on behalf of the other appellants also. But, the question is when actually, each of the appellants came to know of the death of the abovesaid Pavadaisami Padayachi. No doubt it is stated in the affidavit 'we came to know only when the same was informed by our counsel'. But, normally all the appellants cannot be said to come to know of the abovesaid death only at a particular time, all together. That apart, it is not stated in the affidavit when actually the death was informed by their counsel and when actually the other side counsel informed about the death to their counsel. It is also not stated specifically when actually their counsel requested other side counsel to furnish the particulars of legal heirs of the deceased.
4. The allegation that actually there is no delay in view of Order 22, Rule 10-A, C.P.C., is also not correct. Order 22, Rule 10-A, C.P.C., runs as follows:
10-A. Duty of pleader to communicate to court death of a party: Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the court about it, and the court shall thereupon give notice of such death to the other, and for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.
No doubt this rule is mandatory and imposes an obligation on the pleader of the deceased party to communicate to court, the fact of death of such party on this coming to know about such party on his coming to know about such death. But that does not mean that the limitation which commences from the date of death is postponed and begins to run only from the date on which the court is informed of the death and the court, in its turn, gives notice of the death to the other party, No doubt, the fact that information of the death was given to the court on a particular date may be a relevant fact for determining whether there was sufficient causes under Section 5 of the Limitation Act to condone the delay in applying for setting a side the abatement. (Vide: Doddappa Maritammappa v. Erappa Mudakappa : AIR1982Kant191 ].
5. But in the present case, first of all, as I pointed out earlier, very many averments in the supporting affidavit are vague. That part in the counter-affidavit dated 29.11.1995 filed by the son of the deceased 1st respondent, it is also stated thus:
We are informed that in October, 1994, when the case was added in the list of His Lordship Mr. Justice Ramamurthy for final disposal, my father s counsel wrote to him about that. But the letter was not delivered to us. We are informed that my father's counsel informed the counsel for the petitioner that my father was dead and asked him to take steps. After that they have slept over the matter for nearly one year, out of sheer negligence. They know the necessary particulars of all the proposed parties and did not need to be supplied with them. After that, the case appeared in the list again only after a long interval and through our lower court counsel, our counsel contacted us and got the particulars.
To these allegations in paragraph 6 of the said counter affidavit, the only rebuttal allegations found in the reply affidavit by the 6th petitioner dated 28.12.1995 are as follows:
The allegations in para 6 of the counter are incorrect and the statement that the respondents gave the particulars of the legal heirs of the deceased was furnished to the counsel for the respondents only recently will falsify the averments made in para 6 of the counter-affidavit and the vague allegations that the petitioners knew the particulars of the legal heirs cannot be true and correct statement, especially when the petitioners did not know the death of the sole respondent.
Here, it is to be noted that as against the allegations in paragraph 6 of the counter that despite the information given about the death of the deceased, the petitioners slept over the matter for nearly one year, has not been specifically denied.
6. That apart, a more specific and direct averment is also made in the affidavit dated 13.12.1995 of Mrs. Hema Sampath, the counsel for the proposed legal representatives. The said affidavit was served on the learned Counsel for the petitioners herein on 14.12.1995, as the relevant endorsement shows, It runs as follows:
When the case was posted before this Hon'ble Court on 6.12.1995, the counsel for the petitioners disputed the statement that we had orally informed him in October, 1994 about the death of the first respondent. I was directed by this Hon'ble court to file an affidavit. Accordingly I am filing this affidavit.
As against the averment that in October, 1994 itself the death of the deceased was informed to the counsel for the petitioners herein, there is neither any averment in the abovesaid reply affidavit dated 28.12.1995, atleast stating that the petitioners herein do not admit the correctness of it, nor is there any affidavit filed by the counsel for the petitioners, denying the abovesaid averment.
7. No doubt, learned Counsel for the petitioners in this regard relied on the decision in V.P. Nagarajan v. Prabhavathi (1989) 1 L.W. 543 and contended that the abovesaid affidavit by Mrs.Hema Sampath, the counsel should not be entertained since according to the petitioners Counsel, in the said decision, such affidavits by counsel are deprecated. But, I am unable to see any such ruling given in the said decision. The relevant observation therein is only as follows:
The advocate who filed an affidavit in court has no right to assume that his ipso dixit will be accepted by the court automatically without any scrutiny. Particularly when the opposite party challenges the correctness or truth of the averments in the affidavit it is the paramount duty of the advocate who is the deponent of the affidavit to produce the best evidence to prove the contents of the affidavit. It will be nothing but vain glory if the deponent thinks that; as members of the legal profession occupy a very high status, his affidavit is to be accepted on its own weight without any corroboration.
Thus it is found that in the abovesaid decision the opposite party actually challenged the correctness or truth of the averments in the affidavit of the counsel concerned. But, that is not so in the present case as I have already mentioned. Further, in the present case, when the counsel for the petitioners of disputed the statement of the other side counsel about the death of the deceased, pursuant to the direction of the court, the abovesaid counsel Mrs. Hema Sampath has filed the said affidavit and when the abovesaid averments made therein have not been controverted at all, as stated above, the abovesaid decision has no application to the present case. In the above circumstances the only conclusion that could be reached is, in October, 1994 itself the death of the deceased was made known to the petitioners counsel and yet no petition was filed immediately thereafter for bringing the legal representatives on record, but the present petitions have been filed only on 3.11.1995.
8. Once the factum of death is made known in about October, 1994, the petitioners could have easily made enquiries in the village of the 1st respondent about the heirs of the deceased. It is also not in dispute that the village where the first respondent was living is only very close to the village where the petitioners herein are living. In fact in this regard, the relevant averments in the abovesaid counter dated 29.12.1995 are as follows:
Petitioners 1 and 2 live in Nochikkadu, a village hardly three kilometres from our village. We have common relatives and friends. In these villages news spreads like wildfire and it is unbelievable that the petitioners did not know about my father's death. My father was a big landlord in the locality and was very well-known. He had held offices in the panchayat. On his death we sent information to the petitioner's village and other neighbouring villages and it was publicly announced by a person travelling by an auto Cards were also sent to many persons. It is unlikely that they did not know about it.
As against these allegations in paragraph 4 of the counter, the relevant allegations in the abovesaid reply affidavit dated 28.12.1995 are as follows:
The petitioners state that the allegations found in para 4 of the common counter-affidavit are not correct and they are denied by the petitioners. Even according to the respondents petitioners 1 and 2 are not living in the village where the respondents live. The respondents might have relatives and friends but has been not stated that whether through those relatives and friends the death of the sole respondent was informed to the petitioners herein. The deceased was not such a person or popular figure as stated in the counter and the he never held any posts in the panchayat and he was not a politician or big shot whose death was known to all the neighbouring villagers. Though the respondents state that cards were sent to many persons, does not say that such cards were sent to either of the petitioners so as to inform the death.
Hence, it must be noted that there is no specific denial that petitioners 1 and 2 live in a village hardly three kilometres from the village of the respondents and that all of them have common relatives and friends and that the 1st respondent was a big landlord in the locality. No doubt, it is stated in the reply affidavit that the deceased was not such a person or popular figure and he never held any post in the panchayat. Further in the additional counter affidavit dated 12.12.1995 in paragraph 3 it had been pointed out that the trial court has given a finding in paragraph 29 of the judgment that the residence of the petitioners 1 to 3 herein is only about a mile away from the suit properties.
9. The decision relied on by learned Counsel for the petitioners, Wz., Papurao v. Jamunabhai : AIR1983SC186 turned on its own facts and it cannot have application to the present facts. No doubt, it was held there that the facts that the deceased was a prominent citizen and his death was reported in newspapers, was not sufficient for declining condonation of delay in filing the petition for setting aside the abatement. The relevant observations in the said decision are as follows:
We are unable to appreciate that litigants are presumed to read newspapers so as to be aware of the death of prominent citizens from the obituary columns of leading national newspapers. And this was the only ground for declining to grant relief. It does not carry conviction. We are satisfied that the applicant had shown sufficient cause which prevented him from moving the application for substitution in time in the High Court and we accept he same as sufficient to condone delay.
[Italics supplied]
10. It must be noted here that the only ground for declining the condonation is that the litigants are presumed to read newspapers so as to be aware of the death of the prominent citizens. But the present case is different. No such newspapers reports are relied on. Further in the light of the averments in the abovesaid counter-affidavit and reply affidavit, it could be safely concluded that the appellants, who are seven in number, or at least some of them, would have come to know of the death of the deceased in the presents case. It must also be noted that excepting the 6th appellant, the other appellants have not come forward to file any affidavit as to when exactly they came to known of the abovesaid death. It may also be noted that from the abovesaid report of the Supreme Court decision, it is also not known how much is the delay in that case.
11. Even the decision in Bhagwan Swaroop v. Mool Chand : AIR1983SC355 , relied on by the said learned Counsel turned on it own facts and though in the said case finally the delay was excused on terms, the said course cannot be adopted in the present case in the light of all the features in this case pointed out in this order. Learned Counsel for respondents also is not consenting for excusing the delay on terms.
12. That apart the following relevant observations there in the separate judgment rendered by A.P. Sen, J., are quite significant and they also bring out the peculiar facts of that case:
Procedural laws are no doubt devised and enacted for the purpose of advancing justice, Procedural laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the court. Justice means justice to the parties in any particular case and justice according to law.... Excuse of lapses in compliance with the laws of procedure, as a matter of course with the avowed object of doing substantial justice to the parties may in many cases lead to miscarriage of justice.... If irrespective of the provisions of the code and the merits of the case, abatements are to be set aside as a matter of course merely on the ground that abatement is only a consequence of non-compliance of law of procedure and substantial justice is denied to the parties, the result may really amount to a denial of justice and in an indefinite prolongation of a litigation. It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned.... The courts have also consistently ruled that laches or negligence furnish no proper grounds for setting aside the abatement. In such cases a party guilty of negligence or laches must bear the consequences of his laches and negligence and must suffer. In the peculiar facts and circumstances of this case, bearing in mind that the appeal is from a preliminary decree in a partition suit in which the heirs and legal representatives of the deceased respondent had also made an application, though misconceived, for being substituted and brought on record....
[Italics supplied]
No doubt after making the abovesaid observations. His Lordship Mr. Justice A.N. Sen however concurred with the order of his learned brother judge that the delay could be excused on terms of payment of costs of Rs. 1,000.
13. The decision in Sital Prasad v. Union of India : [1985]1SCR659 , which was also relied on by learned Counsel for the petitioners and which follows Bhagwan Swaroop v. Moot Chand : AIR1983SC355 , also turned on its facts. There the delay does not appear to be inordinate since it appears that even though the death of the relevant person took place on 25.2.1976 the other side had knowledge of it only some time prior to 7.10.1978 and that the application for condonation of delay was filed on 7.10.1978 itself.
14. It is also pertinent to point out that the allegations in paragraph 5 of the abovesaid counsel dated 29.11.1995 are as follows:.the petitioners are well versed with court proceedings They know that legal representatives of a deceased person have to be impleaded. They had already impleaded the L.Rs. of the 4th petitioner. Hence they cannot plead ignorance of the procedure to be followed on the death of a party
[Italics supplied]
As against these allegations, the abovesaid reply affidavit only says as follows:
The allegations in para 5 of the common counter are false and are denied by the petitioners. Such averments are unsustainable in law especially when procedure under Order 22, Rule 10-A, C.P.C. has not been complied with by the respondents.
In other words there is no specific denial of the above referred to different specific averments made in the abovesaid paragraph 5 of the counter. The submission that the averments in the abovesaid paragraph 5 of the counter are unsustainable, especially when Order 22, Rule 10-A, C.P.C. has not been complied with, has no merit since the said rule does not mean, as already stated, that limitation which commences from the date of death is postponed and begin to run from the date on which the court is informed of the death and the court in turn gives notice of the death to the other party.
15. In the result, for all the reasons stated supra, these petitions are dismissed. No costs.