State Bank of India Vs. Sheikh Mohammad AmIn and Co. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/898764
SubjectLimitation
CourtJammu and Kashmir High Court
Decided OnFeb-21-2005
Case NumberCMP No. 353/2004
Judge Mansoor Ahmad Mir, J.
Reported in2005(2)JKJ311
ActsCode of Civil Procedure (CPC) (Amendment) Act, 1976 - Order 22, Rules 9 and 10A
AppellantState Bank of India
RespondentSheikh Mohammad AmIn and Co. and ors.
Appellant Advocate M.A. Pandit, Adv.
Respondent Advocate R.A. Jan, Adv.
DispositionApplication allowed
Cases ReferredK. Rudrappa v. Shivappa
Excerpt:
- mansoor ahmad mir, j.1. it appears that applicant/petitioner has filed application for bringing legal representatives on record in the court below which stands dismissed vide impugned order dated 21-09-2002. during the pendency of the petition came to be dismissed which stands resorted by this hon'ble court vide order dated 28-10-2004.2. the petitioner has also filed two cmps no. 353/2004 and 354/2004 in terms of order dated 22-07-2004 passed in the revision petition. the cmp no. 353/2004 is petition for condoning delay and the cmp no. 354/2004 is for setting aside abatement.3. now moot point for consideration is, whether the petitioner has carved out the ground for condoning the delay which has crept in filing the application for setting aside abatement. in order to thrash out this point it is necessary to give brief resume of the petition:4. it has been averred in the petition that the application had no knowledge about the death of defendant no. 2 and it was duty of the learned counsel for defendant no. 2 to inform the court in terms of provisions of order 22 rule 10-a cpc and then the applicant was under legal obligation to file the application for bringing legal heirs on record. that the applicant got knowledge about the death of non-applicant and has filed the application for bringing legal representatives on record on 23-07-1987. the counsel for non-applicants/defendants has filed the objections. the non-applicants have resisted the application on the ground that the application does not contain even a whisper about the cause or reason that prevented the applicant in availing the remedy in terms of order 22 rule 9 of cpc.5. perusal of the file reveals that the learned counsel for the defendants/non-applicants has not informed the court in terms of order 22 rule 10-a of cpc about the death of defendant/non-applicant no. 2.6. the other side has not also taken stand in the objections that the learned counsel has informed the court well in the time and has discharged his duty in terms of mandate of order 22 rule 10-a of cpc.7. it seems that mr. j.l. chowdry, advocate has filed the application for bringing legal representatives of defendant on record on 23-07-1987 in the hon'ble high court with the plea that the defendant no. 2 has died since last four months. in terms of impugned order the date of death of defendant no. 2 is 10-12-1986 as given in the death certificate. the said application stood rejected in terms of the impugned order on the ground of delay.8. i have laid my hands on the judgement of apex court titled gangadhar and anr. v. raj kumar, reported in : air1983sc1202 , wherein their lordships have held that order 22 rule 10-a of cpc was introduced in order to avoid procedural justice scoring a march over substantial justice. it is profitable to reproduce para 6 of the judgement herein:'6. sole respondent died on april 19, 1980. his adopted son applied for substitution which included intimation to the court of the death of the respondent as envisaged by rule 10-a on july 1, 1981, that is, nearly one year and six weeks after the death of his adoptive father and promptly within two weeks appellants moved ia no. 2110 of 1981. and it is not made clear when notice of ia no. 1980 of 1981 moved by the adopted son was served upon the appellants or their learned advocate. the legislative intention of casting a burden on the learned advocate of a party to give intimation of the death of the party represented by him and for this limited purpose to introduce a deeming fiction of the contract being kept subsisting between the learned advocate and the deceased party was that the other party may not be taken unawares at the time of hearing of the appeal by springing surprise on it that the respondent is dead and appeal has abated. in order to avoid procedural justice scoring a march over substantial justice rule 10-a was introduced by the code of civil procedure (amendment) act of 1976 which came into force on february 1, 1977. unfortunately, the learned judge took no notice of the wholesome provision and fell back on the earlier legal position which automatically stands modified by the new provision and reached an unsustainable conclusion. in fact in a fact situation as the present one, we may preferable refer to bhagwan sawroop v. mool chand. the view taken in that case would unquestionably show that the high court was in error in refusing to set aside abatement. we are of the opinion that the earliest knowledge about the death of the deceased respondent can be attributed to the appellants on july 1, 1981 when raj kumar applied for substitution. promptly within two weeks the application for substitution was made by the appellants. therefore, it is satisfactorily established that the appellants were prevented by a sufficient cause in making the application for substitution within the prescribed period of limitation and the delay deserves to e condoned.'9. the length of delay is immaterial but what is material is sufficient cause. the apex court has held in a case titled ram nath sao v. gobardhan sao, reported in : air2001sc3198 , that the sufficient cause should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to the party.10. petitioner is a nationalized bank and public money is involved in the suit, i do not think that a technical view should serve the ends of justice and it is the duty of the court to see that public money is not fritted away in any way. my this view is fortified by the judgement of apex court titled k. rudrappa v. shivappa, reported in : air2004sc4346 , and it is profitable to reproduce relevant portion of para 10 of the judgement:'10....in our opinion, such technical objections should not come in doing full and complete justice between the parties. in our considered opinion, the high court ought to have set aside the order passed by the district court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased hanumanthapa and by directing the district court to dispose of the appeal on its merits. by not doing so, even the high court has also not acted according to law.'11. it is beaten law of the land that rules of procedure are not by themselves and end but the means to achieve the ends of justice. rules of procedure are aimed at to achieve the justice and rules of procedure are aimed at to scuttle away enroute the liss. it is the duty of the court to safeguard the interests of public and also to take steps so that public money is not wasted in any way. my this view is fortified by the judgement titled owners and parties interested in m.v. 'vali pero' v. fernandeo lopez and ors., reported in : air1989sc2206 . and it is profitable to reproduce para 18 of the judgement:'18. rules of procedure are not by themselves an end but the means to achieve the ends of justice. rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situations, all of which cannot be envisages, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. the reason is obvious. procedure is meant to subserve and not the rule the cause of justice. where the out come and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. in our view, this appears to be the pragmatic approach which; needs to be adopted while construing a purely procedural provision. otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system.'12. keeping in view the above discussion learned counsel for defendant no. 2 has not informed the court about the death of defendant no. 2 but the petitioner, on 23rd of july, 1987, moved an application for substitution. in terms of the impugned order application for bringing legal representatives on record has been filed just after one month and 12 days. and after lapse of 14 years, respondents filed objections on 25-08-2001 and the said petition came to be dismissed after lapse of 15 years vide order which is impugned in the revision petition.13. in the given circumstances, it will be travesty of justice not to condone the delay.14. viewed thus, the application is allowed. delay is condoned subject to payment of rs 2000/- as costs to be deposited in advocates' welfare fund within two weeks. after deposition of the costs the cmp no. 354 of 2004, petition for setting aside abatement, be registered.15. application stands disposed of accordingly.
Judgment:

Mansoor Ahmad Mir, J.

1. It appears that applicant/petitioner has filed application for bringing legal representatives on record in the court below which stands dismissed vide impugned order dated 21-09-2002. During the pendency of the petition came to be dismissed which stands resorted by this Hon'ble Court vide order dated 28-10-2004.

2. The petitioner has also filed two CMPs No. 353/2004 and 354/2004 in terms of order dated 22-07-2004 passed in the revision petition. The CMP No. 353/2004 is petition for condoning delay and the CMP No. 354/2004 is for setting aside abatement.

3. Now moot point for consideration is, whether the petitioner has carved out the ground for condoning the delay which has crept in filing the application for setting aside abatement. In order to thrash out this point it is necessary to give brief resume of the petition:

4. It has been averred in the petition that the application had no knowledge about the death of defendant No. 2 and it was duty of the learned counsel for defendant No. 2 to inform the court in terms of provisions of Order 22 Rule 10-A CPC and then the applicant was under legal obligation to file the application for bringing legal heirs on record. That the applicant got knowledge about the death of non-applicant and has filed the application for bringing legal representatives on record on 23-07-1987. The counsel for non-applicants/defendants has filed the objections. The non-applicants have resisted the application on the ground that the application does not contain even a whisper about the cause or reason that prevented the applicant in availing the remedy in terms of Order 22 Rule 9 of CPC.

5. Perusal of the file reveals that the learned counsel for the defendants/non-applicants has not informed the court in terms of Order 22 Rule 10-A of CPC about the death of defendant/Non-applicant No. 2.

6. The other side has not also taken stand in the objections that the learned counsel has informed the court well in the time and has discharged his duty in terms of mandate of Order 22 Rule 10-A of CPC.

7. It seems that Mr. J.L. Chowdry, Advocate has filed the application for bringing legal representatives of defendant on record on 23-07-1987 in the Hon'ble High Court with the plea that the defendant No. 2 has died since last four months. In terms of impugned order the date of death of defendant No. 2 is 10-12-1986 as given in the death certificate. The said application stood rejected in terms of the impugned order on the ground of delay.

8. I have laid my hands on the judgement of Apex court titled Gangadhar and Anr. v. Raj Kumar, reported in : AIR1983SC1202 , wherein their lordships have held that Order 22 Rule 10-A of CPC was introduced in order to avoid procedural justice scoring a march over substantial justice. It is profitable to reproduce para 6 of the judgement herein:

'6. Sole respondent died on April 19, 1980. His adopted son applied for substitution which included intimation to the court of the death of the respondent as envisaged by Rule 10-A on July 1, 1981, that is, nearly one year and six weeks after the death of his adoptive father and promptly within two weeks appellants moved IA No. 2110 of 1981. And it is not made clear when notice of IA No. 1980 of 1981 moved by the adopted son was served upon the appellants or their learned advocate. The legislative intention of casting a burden on the learned advocate of a party to give intimation of the death of the party represented by him and for this limited purpose to introduce a deeming fiction of the contract being kept subsisting between the learned advocate and the deceased party was that the other party may not be taken unawares at the time of hearing of the appeal by springing surprise on it that the respondent is dead and appeal has abated. In order to avoid procedural justice scoring a march over substantial justice Rule 10-A was introduced by the Code of Civil Procedure (Amendment) Act of 1976 which came into force on February 1, 1977. Unfortunately, the learned Judge took no notice of the wholesome provision and fell back on the earlier legal position which automatically stands modified by the new provision and reached an unsustainable conclusion. In fact in a fact situation as the present one, we may preferable refer to Bhagwan Sawroop v. Mool Chand. The view taken in that case would unquestionably show that the High Court was in error in refusing to set aside abatement. We are of the opinion that the earliest knowledge about the death of the deceased respondent can be attributed to the appellants on July 1, 1981 when Raj Kumar applied for substitution. Promptly within two weeks the application for substitution was made by the appellants. Therefore, it is satisfactorily established that the appellants were prevented by a sufficient cause in making the application for substitution within the prescribed period of limitation and the delay deserves to e condoned.'

9. The length of delay is immaterial but what is material is sufficient cause. The Apex court has held in a case titled Ram Nath Sao v. Gobardhan Sao, reported in : AIR2001SC3198 , that the sufficient cause should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to the party.

10. Petitioner is a nationalized bank and public money is involved in the suit, I do not think that a technical view should serve the ends of justice and it is the duty of the Court to see that public money is not fritted away in any way. My this view is fortified by the judgement of Apex Court titled K. Rudrappa v. Shivappa, reported in : AIR2004SC4346 , and it is profitable to reproduce relevant portion of para 10 of the judgement:

'10....In our opinion, such technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthapa and by directing the District Court to dispose of the appeal on its merits. By not doing so, even the High Court has also not acted according to law.'

11. It is beaten law of the land that rules of procedure are not by themselves and end but the means to achieve the ends of justice. Rules of procedure are aimed at to achieve the justice and rules of procedure are aimed at to scuttle away enroute the liss. It is the duty of the court to safeguard the interests of public and also to take steps so that public money is not wasted in any way. My this view is fortified by the judgement titled Owners and Parties interested in M.V. 'Vali Pero' v. Fernandeo Lopez and Ors., reported in : AIR1989SC2206 . And it is profitable to reproduce para 18 of the judgement:

'18. Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisages, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not the rule the cause of justice. Where the out come and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which; needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system.'

12. Keeping in view the above discussion learned counsel for defendant No. 2 has not informed the court about the death of defendant No. 2 but the petitioner, on 23rd of July, 1987, moved an application for substitution. In terms of the impugned order application for bringing legal representatives on record has been filed just after one month and 12 days. And after lapse of 14 years, respondents filed objections on 25-08-2001 and the said petition came to be dismissed after lapse of 15 years vide order which is impugned in the revision petition.

13. In the given circumstances, it will be travesty of justice not to condone the delay.

14. Viewed thus, the application is allowed. Delay is condoned subject to payment of Rs 2000/- as costs to be deposited in Advocates' Welfare Fund within two weeks. After deposition of the costs the CMP No. 354 of 2004, petition for setting aside abatement, be registered.

15. Application stands disposed of accordingly.