Biniyabai Vs. Sikandar Khan - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 6. the applications have been contested tooth and nail presumably because the legal representatives feel that here only they may succeed, failing which they might not have any chance of success on merits in so far as the appeal is concerned. abdul khan, 1991-i mpwn 57. (iv) merely because the appellant has a strong case on merits that would not entitle her for indulgence being shown under section 5 of the limitation act or rule 9 of order 22 of the civil procedure code -state of gujarat v. moreover, he has clearly stated that he came to know of the pendency of the appeal filed by his father as one of the appellants only recently that is on august 4, 1972 and the application was made on august 5, 1972. considering all these facts and circumstances we feel that for the ends of justice and fair play the application under section 5 of the limitation act should be allowed as in our opinion sufficient cause has been made out for the delay in filing the application for bringing on record the legal representatives of the deceased inder singh. , air 1985 sc 606, the abatement had occurred for failure to bring legal representatives on record within time; the appellants are admittedly from the rural area and in a country like our where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. in the instant case it must be held that both the trial court as well as the high court were in error in not condoning the delay in seeking substitution of heirs and legal representatives of the deceased/appellant in time. the application of appellant as well as that of legal representatives was allowable. litigants are not supposed to enquire day to day about the life and well-being of their opponents. 17. keeping in view the position of law aforesaid, this court is satisfied that a sufficient cause is made out for condoning the delay under section 5 of the limitation act and for setting aside the abatement under order 22, rule 9, civil procedure code.orderr.c. lahoti, j.1. should the procedural ponderables and technical troublers, such as plea of bar of limitation, be permitted to obstruct the path of justice and defeat rightful claims even though the law, justice and equity all demand the otherwise, is a question to be answered in this order. indeed they are applications under order 22, rule 4, read with rule 9, of the civil procedure code and section 5 of the limitation act coming up for disposal in bit little peculiar facts and circumstances to be noticed hereinafter.2. the plaintiff, a widow lady in her fiftees, knocked the doors of this court in the year 1970, raising a substantial grievance of having been deprived of her bread and butter by the defendant having succeeded in coaxing her into executing a deed of sale, adjudged by this court vide its judgment dated 12-8 1991 to be fictitious document. it is notable that one-half share in 37 bighas and 16 biswas of agricultural land in district of vidisha, where the land is valuable, was outwardly parted with for a paltry amount of rs. 800/-recited as consideration in the purported deed of sale. the plaintiff had lost from the two courts below. this court vide its judgment dated 12-8-1991 allowed the appeal, decreeing the suit, declaring the sale-deed to be a fictitious and nominal deed of sale, not binding on the plaintiff, leaving liberty open to the defendant to seek return of the amount of loan advanced by him to the plaintiff.3. the appeal was heard on 19-7-1991 in the presence of learned counsel for both the parties. the judgment was delivered on 12-8-1991. none of parties or their counsel informed the court, if any one had expired. it turned out a mirage to hope that the old litigation commenced in the year 1979 and indeed an old second appeal of the year 1972, having languished in this court for more than 12 years, had come to an end.4. on 1 -2-1992 one mohammed mustafa moved an application inviting the attention of the court to the fact that sikandar khan, the sole respondent in s. a. no. 53/79 had expired on 11-8-1988 and inasmuch as the appeal was heard and decided without the legal representatives having been brought on record, the judgment was a nullity, liable to be recalled, and the appeal deserved a dismissal as abated. the factum of death was not disputed by the appellant biniyabai on being noticed. on 17-10-1992 this court, as duty bound, annulled its judgment and decree dated 12 -8 -1991, directing the appeal to be relisted for hearing. these were the proceedings in m.c.c. no. 54/92.5. on 2-11-1992 applications under order 22, rule 4/9, civil procedure code and section 5 of the limitation act were filed by biniyabai proposing to bring on record the legal representatives of the deceased respondent and seeking setting aside of the abatement as also condonation of delay in moving the applications. it was stated that the factum of death of sikandar khan and the necessity of moving these applications became alive to the widow appellant on the application having been moved in m.c.c. no. 54/92 and notice thereof having been served on her. the appellant biniyabai further submitted that being an old illiterate rustic woman she was not aware of the legal position, that is, the necessity of moving such applications. the defendant/respondent's counsel had also not disclosed the factum of death of respondent during the hearing of the appeal. she contacted her counsel, took steps in moving the applications and sought for condonation of delay.6. the applications have been contested tooth and nail presumably because the legal representatives feel that here only they may succeed, failing which they might not have any chance of success on merits in so far as the appeal is concerned.7. at the hearing shri r.d. jain, learned counsel appearing for the legal representatives of the respondent, with his usual thrust and gusto assisted by legal acumen and armed with armoury of precedents raised a number of contentions, listed as under:(i) the appeal having abated there can be no setting aside of abatement without showing a sufficient cause -- manorama v. chittar and ors., 1990 mplj 300; kashirao ghorpade v. daulatrao ghorpade and ors., 1973 jlj sn 51; state of m. p. v. krishn murari and ors., 1977-i mpwn 385; shakoor khan and ors. v. ram mohan and ors., 1977 mplj 795 = 1977 jlj 783; and m/s. bhopal motors v. b.p. saradhy, 1981 mprcj 69. (ii) the appellant wrongly stated that she had acquired knowledge of death of respondent belatedly; and that act of the appellant is an attempt at dodging the court enough to show her exit door -- union of india v. ramcharan, air 1964 sc 215, pr. 8, 9, 12; ramdas v. kasanju, 1990-ii mpwn 109; mohd. khan v. abdul khan, 1991-i mpwn 57; and kashiram v. laxman, 1991-ii mpwn 11. (iii) the appellant cannot take shelter behind the plea of the respondent's counsel having not informed the court of the factum of death of the respondent as contemplated by rule 10-a of order 22 of the civil procedure code. -- gangadhar and anr. v. shri raj kumar, air 1983 sc 1202; kaushalyabai v. aaishabi, 1983 mpwn 279; and mohd. khan v. abdul khan, 1991-i mpwn 57. (iv) merely because the appellant has a strong case on merits that would not entitle her for indulgence being shown under section 5 of the limitation act or rule 9 of order 22 of the civil procedure code -- state of gujarat v. sayed mohd. baguir, air 1981 sc 1921. 8. a numbeer of documents have been filed with the replies suggesting that there was some other litigation pending between these very parties and in that litigation this very appellant had taken steps for bringing the legal representatives on record; and hence the appellant not only knew of the death of the respondent but also was aware of the necessity to taking appropriate steps for bringing the legal representatives on record to save the appeal from sinking.9. there can be no quarrel with the principles of law suggested in several rulings relied on by shri jain. the question is one of their application. also, much water has flown under the bridges; the hon'ble supreme court having thrown flood of light on the law and principles to be kept in view by the courts faced with such problems as are at hand.10. straightway let us proceed to examine the law laid down in the decisions rendered by the supreme court after the decisions relied on by shri jain.11. in bhagsingh and ors. v. major dalit singh and ors., 1987 supp. scc 685, the application under order 22, rule 9, civil procedure code seeking setting aside of the abatement was barred by time. it was filed accompanied by an application under section 5 of the limitation act. reiterating the law laid down earlier by their lordships in union of india v. ramcharan, air 1964 sc 215, their lordships held:'the court while considering an application under section 5 of the limitation act will consider the facts and circumstances not for taking too strict and pedantic stand which will cause injustice but to consider it from the point of taking a view which will advance the cause of justice. in this case admittedly the appellants are agriculturists living in villages and the applicant is also a very young person having little knowledge about the steps that are to be taken. moreover, he has clearly stated that he came to know of the pendency of the appeal filed by his father as one of the appellants only recently that is on august 4, 1972 and the application was made on august 5, 1972. considering all these facts and circumstances we feel that for the ends of justice and fair play the application under section 5 of the limitation act should be allowed as in our opinion sufficient cause has been made out for the delay in filing the application for bringing on record the legal representatives of the deceased inder singh.' 12. in ram sumiran and ors. v. d. d. c. and ors., air 1985 sc 606, the abatement had occurred for failure to bring legal representatives on record within time; the petitioners know about the death of the respondent yet defaulted in taking steps because of their poverty, ignorance and illiteracy. their lordship held:'the appellants are admittedly from the rural area and in a country like our where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. the ends of justice require that the application for bringing the legal representatives of the deceased respondent no. 5 should have been granted.'13. in sital prasad saxena v. union of india, air 1985 sc i, a case arising from madhya pradesh, their lordships of the supreme court took note of gap in the link between the litigant and the lawyer when the cases remain pending before the high court and that link-loss occasioning delay in taking prompt steps for substitution of heirs on the death of a party and branded it as an error if the high court did not take note of that fact. their lordships held:'the second error was that once an appeal is pending in the high court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the high court which has a seat far away from where parties in rural areas may be residing. in the instant case it must be held that both the trial court as well as the high court were in error in not condoning the delay in seeking substitution of heirs and legal representatives of the deceased/appellant in time. cause for delay as urged appears to be sufficient which prevented them from moving the petition for substitution.' their lordships emphasised upon the necessity of adopting such approach to the applications seeking condonation of delay in moving the applications for substitution of parties who died during the pendency of civil appeal in the high court as was laid down earlier in bhagwan swaroop v. mool chand, air 1983 sc 355, and hansraj v. sunderlal agarwal, (1982) 1 scc 476. in bhagwan swaroop'scase it was observed:'the order of high court disclosed a hypertechnical approach which if carried to end may result in miscarriage of justice. if the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach. such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in court. undoubtedly, justice according to law; law to be administered to advance justice. the application of appellant as well as that of legal representatives was allowable.'14. in bapurao v. smt. jamunabai and ors., air 1983 sc 186, condonation of delay was sought for on the ground that appellant came to know about the death of respondent late. their lordships accepted it as a sufficient cause and overruled the contention that the deceased respondent being a prominent citizen whose death having been reported in news papers, should have been known to the opposite party.15. in shadi v. ram pal and ors., 1983-2 scc 255, the high court had rejected the application for setting aside of the abatement. their lordships found that there was no finding that the appellant was guilty of any laches or that he purposely delayed in making the application for substitution. the supreme court held that the rejection of the application for substitution by the high court was erroneous.16. the law is thus clear. while dealing with applications seeking condonation of delay under section 5 of limitation act or for setting aside of abatement under rule 9, of order 22, civil procedure code, the approach has to be liberal and judicious guided by the paramount consideration of not depriving a litigant ordinarily of adjudication of rights on merits. hypertechnical, too strict, and pedantic approach as may cause injustice has to be avoided. ignorance of law is no defence in law but the realities of life, the courts of law cannot afford to overlook. long pendency of cases in law courts often result in link between litigants and lawyers being lost specially when the litigation is before the appellate forum. litigants, often dejected, more so when they belong to rural folk, or are poverty stricken or are illiterate, are mostly not aware of the necessity of taking steps for substitution on the death of a party. the litigants take such steps often when advised to do so by their lawyers. litigants are not supposed to enquire day to day about the life and well-being of their opponents. it is not by itself unbelievable to find that they do not know of the death of the opponent when it occurs, all the more when they are not residents of the same township or locality. a litigant fighting his case with diligence would not ordinarily allow the litigation to be lost by deliberately defaulting in taking steps for substitution if only he had known the factum of death of the opponent, and the legal necessity of taking steps for substitution.17. keeping in view the position of law aforesaid, this court is satisfied that a sufficient cause is made out for condoning the delay under section 5 of the limitation act and for setting aside the abatement under order 22, rule 9, civil procedure code. the appellant is a widow. she belongs to rural folk. she is an old and illiterate woman. the manner in which she has been fighting her case does not permit holding that she would have deliberately not taken steps for substitution of the legal representatives of the sole respondent if only she would have known the requisite facts and the need of taking legal steps. contumacy, misconduct or gross negligence could have made a difference but that is not the case here.18. applications are allowed. the delay in taking steps for substitution is condoned. the abatement is set aside. legal representatives of the deceased respondent are allowed to be brought on record. amendment in the cause title within a week.

Judgment:
ORDER

R.C. Lahoti, J.

1. Should the procedural ponderables and technical troublers, such as plea of bar of limitation, be permitted to obstruct the path of justice and defeat rightful claims even though the law, justice and equity all demand the otherwise, is a question to be answered in this order. Indeed they are applications under Order 22, Rule 4, read with Rule 9, of the Civil Procedure Code and Section 5 of the Limitation Act coming up for disposal in bit little peculiar facts and circumstances to be noticed hereinafter.

2. The plaintiff, a widow lady in her fiftees, knocked the doors of this Court in the year 1970, raising a substantial grievance of having been deprived of her bread and butter by the defendant having succeeded in coaxing her into executing a deed of sale, adjudged by this Court vide its judgment dated 12-8 1991 to be fictitious document. It is notable that one-half share in 37 Bighas and 16 Biswas of agricultural land in district of Vidisha, where the land is valuable, was outwardly parted with for a paltry amount of Rs. 800/-recited as consideration in the purported deed of sale. The plaintiff had lost from the two courts below. This Court vide its judgment dated 12-8-1991 allowed the appeal, decreeing the suit, declaring the sale-deed to be a fictitious and nominal deed of sale, not binding on the plaintiff, leaving liberty open to the defendant to seek return of the amount of loan advanced by him to the plaintiff.

3. The appeal was heard on 19-7-1991 in the presence of learned counsel for both the parties. The judgment was delivered on 12-8-1991. None of parties or their counsel informed the Court, if any one had expired. It turned out a mirage to hope that the old litigation commenced in the year 1979 and indeed an old Second appeal of the year 1972, having languished in this Court for more than 12 years, had come to an end.

4. On 1 -2-1992 one Mohammed Mustafa moved an application inviting the attention of the Court to the fact that Sikandar Khan, the sole respondent in S. A. No. 53/79 had expired on 11-8-1988 and inasmuch as the appeal was heard and decided without the legal representatives having been brought on record, the judgment was a nullity, liable to be recalled, and the appeal deserved a dismissal as abated. The factum of death was not disputed by the appellant Biniyabai on being noticed. On 17-10-1992 this Court, as duty bound, annulled its judgment and decree dated 12 -8 -1991, directing the appeal to be relisted for hearing. These were the proceedings in M.C.C. No. 54/92.

5. On 2-11-1992 applications under Order 22, Rule 4/9, Civil Procedure Code and Section 5 of the Limitation Act were filed by Biniyabai proposing to bring on record the legal representatives of the deceased respondent and seeking setting aside of the abatement as also condonation of delay in moving the applications. It was stated that the factum of death of Sikandar khan and the necessity of moving these applications became alive to the widow appellant on the application having been moved in M.C.C. No. 54/92 and notice thereof having been served on her. The appellant Biniyabai further submitted that being an old illiterate rustic woman she was not aware of the legal position, that is, the necessity of moving such applications. The defendant/respondent's counsel had also not disclosed the factum of death of respondent during the hearing of the appeal. She contacted her counsel, took steps in moving the applications and sought for condonation of delay.

6. The applications have been contested tooth and nail presumably because the legal representatives feel that here only they may succeed, failing which they might not have any chance of success on merits in so far as the appeal is concerned.

7. At the hearing Shri R.D. Jain, learned counsel appearing for the legal representatives of the respondent, with his usual thrust and gusto assisted by legal acumen and armed with armoury of precedents raised a number of contentions, listed as under:

(i) the appeal having abated there can be no setting aside of abatement without showing a sufficient cause -- Manorama v. Chittar and Ors., 1990 MPLJ 300; Kashirao Ghorpade v. Daulatrao Ghorpade and Ors., 1973 JLJ SN 51; State of M. P. v. Krishn Murari and Ors., 1977-I MPWN 385; Shakoor Khan and Ors. v. Ram Mohan and Ors., 1977 MPLJ 795 = 1977 JLJ 783; and M/s. Bhopal Motors v. B.P. Saradhy, 1981 MPRCJ 69.

(ii) the appellant wrongly stated that she had acquired knowledge of death of respondent belatedly; and that act of the appellant is an attempt at dodging the Court enough to show her exit door -- Union of India v. Ramcharan, AIR 1964 SC 215, pr. 8, 9, 12; Ramdas v. Kasanju, 1990-II MPWN 109; Mohd. Khan v. Abdul Khan, 1991-I MPWN 57; and Kashiram v. Laxman, 1991-II MPWN 11.

(iii) the appellant cannot take shelter behind the plea of the respondent's counsel having not informed the Court of the factum of death of the respondent as contemplated by Rule 10-A of Order 22 of the Civil Procedure Code. -- Gangadhar and Anr. v. Shri Raj Kumar, AIR 1983 SC 1202; Kaushalyabai v. Aaishabi, 1983 MPWN 279; and Mohd. Khan v. Abdul Khan, 1991-I MPWN 57.

(iv) merely because the appellant has a strong case on merits that would not entitle her for indulgence being shown under Section 5 of the Limitation Act or Rule 9 of Order 22 of the Civil Procedure Code -- State of Gujarat v. Sayed Mohd. Baguir, AIR 1981 SC 1921.

8. A numbeer of documents have been filed with the replies suggesting that there was some other litigation pending between these very parties and in that litigation this very appellant had taken steps for bringing the legal representatives on record; and hence the appellant not only knew of the death of the respondent but also was aware of the necessity to taking appropriate steps for bringing the legal representatives on record to save the appeal from sinking.

9. There can be no quarrel with the principles of law suggested in several rulings relied on by Shri Jain. The question is one of their application. Also, much water has flown under the bridges; the Hon'ble Supreme Court having thrown flood of light on the law and principles to be kept in view by the Courts faced with such problems as are at hand.

10. Straightway let us proceed to examine the law laid down in the decisions rendered by the Supreme Court after the decisions relied on by Shri Jain.

11. In Bhagsingh and Ors. v. Major Dalit Singh and Ors., 1987 Supp. SCC 685, the application under Order 22, Rule 9, Civil Procedure Code seeking setting aside of the abatement was barred by time. It was filed accompanied by an application under Section 5 of the limitation Act. Reiterating the law laid down earlier by their Lordships in Union of India v. Ramcharan, AIR 1964 SC 215, their Lordships held:

'The Court while considering an application under Section 5 of the Limitation Act will consider the facts and circumstances not for taking too strict and pedantic stand which will cause injustice but to consider it from the point of taking a view which will advance the cause of justice. In this case admittedly the appellants are agriculturists living in villages and the applicant is also a very young person having little knowledge about the steps that are to be taken. Moreover, he has clearly stated that he came to know of the pendency of the appeal filed by his father as one of the appellants only recently that is on August 4, 1972 and the application was made on August 5, 1972. Considering all these facts and circumstances we feel that for the ends of justice and fair play the application under Section 5 of the Limitation Act should be allowed as in our opinion sufficient cause has been made out for the delay in filing the application for bringing on record the legal representatives of the deceased Inder Singh.'

12. In Ram Sumiran and Ors. v. D. D. C. and Ors., AIR 1985 SC 606, the abatement had occurred for failure to bring legal representatives on record within time; the petitioners know about the death of the respondent yet defaulted in taking steps because of their poverty, ignorance and illiteracy. Their Lordship held:

'The appellants are admittedly from the rural area and in a country like our where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased respondent No. 5 should have been granted.'

13. In Sital Prasad Saxena v. Union of India, AIR 1985 SC I, a case arising from Madhya Pradesh, their Lordships of the Supreme Court took note of gap in the link between the litigant and the lawyer when the cases remain pending before the High Court and that link-loss occasioning delay in taking prompt steps for substitution of heirs on the death of a party and branded it as an error if the High Court did not take note of that fact. Their Lordships held:

'The second error was that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing.

In the instant case it must be held that both the trial court as well as the High Court were in error in not condoning the delay in seeking substitution of heirs and legal representatives of the deceased/appellant in time. Cause for delay as urged appears to be sufficient which prevented them from moving the petition for substitution.'

Their Lordships emphasised upon the necessity of adopting such approach to the applications seeking condonation of delay in moving the applications for substitution of parties who died during the pendency of civil appeal in the High Court as was laid down earlier in Bhagwan Swaroop v. Mool Chand, AIR 1983 SC 355, and Hansraj v. Sunderlal Agarwal, (1982) 1 SCC 476. In Bhagwan Swaroop'scase it was observed:

'The order of High Court disclosed a hypertechnical approach which if carried to end may result in miscarriage of justice. If the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice. The application of appellant as well as that of legal representatives was allowable.'

14. In Bapurao v. Smt. Jamunabai and Ors., AIR 1983 SC 186, condonation of delay was sought for on the ground that appellant came to know about the death of respondent late. Their Lordships accepted it as a sufficient cause and overruled the contention that the deceased respondent being a prominent citizen whose death having been reported in news papers, should have been known to the opposite party.

15. In Shadi v. Ram Pal and Ors., 1983-2 SCC 255, the High Court had rejected the application for setting aside of the abatement. Their Lordships found that there was no finding that the appellant was guilty of any laches or that he purposely delayed in making the application for substitution. The Supreme Court held that the rejection of the application for substitution by the High Court was erroneous.

16. The law is thus clear. While dealing with applications seeking condonation of delay under Section 5 of Limitation Act or for setting aside of abatement under Rule 9, of Order 22, Civil Procedure Code, the approach has to be liberal and judicious guided by the paramount consideration of not depriving a litigant ordinarily of adjudication of rights on merits. Hypertechnical, too strict, and pedantic approach as may cause injustice has to be avoided. Ignorance of law is no defence in law but the realities of life, the Courts of law cannot afford to overlook. Long pendency of cases in law courts often result in link between litigants and lawyers being lost specially when the litigation is before the appellate forum. Litigants, often dejected, more so when they belong to rural folk, or are poverty stricken or are illiterate, are mostly not aware of the necessity of taking steps for substitution on the death of a party. The litigants take such steps often when advised to do so by their lawyers. Litigants are not supposed to enquire day to day about the life and well-being of their opponents. It is not by itself unbelievable to find that they do not know of the death of the opponent when it occurs, all the more when they are not residents of the same township or locality. A litigant fighting his case with diligence would not ordinarily allow the litigation to be lost by deliberately defaulting in taking steps for substitution if only he had known the factum of death of the opponent, and the legal necessity of taking steps for substitution.

17. Keeping in view the position of law aforesaid, this Court is satisfied that a sufficient cause is made out for condoning the delay under Section 5 of the Limitation Act and for setting aside the abatement under Order 22, Rule 9, Civil Procedure Code. The appellant is a widow. She belongs to rural folk. She is an old and illiterate woman. The manner in which she has been fighting her case does not permit holding that she would have deliberately not taken steps for substitution of the legal representatives of the sole respondent if only she would have known the requisite facts and the need of taking legal steps. Contumacy, misconduct or gross negligence could have made a difference but that is not the case here.

18. Applications are allowed. The delay in taking steps for substitution is condoned. The abatement is set aside. Legal representatives of the deceased respondent are allowed to be brought on record. Amendment in the cause title within a week.