BALWANT SINGH (DEAD) v. JAGDISH SINGH & Ors.

· The landlord-appellant filed a petition for ejectment E of the tenant-respondent on the ground of non-payment of rent. The petition was allowed by the Rent controller under Section 15 of the Haryana Urban Rent (Control of Rent and Eviction) Act, 1973. The order was affirmed by the Appellate Authority. The High Court, however, set F aside the concurrent judgments of the Appellate Authority and the Rent Controller. During the pendency of the appeal before the Supreme Court, the landlord-appellant died on 28th November, 2007. On 15th April, 2010, the legal G representatives of the deceased landlord filed an application for bringing them on record (I.A. No. 1 of 2010) alongwith an application for condonation of the long delay in filing such application (I.A. No. 2 of 2010) pleading that I. A. No. 1 of 2010 be treated as an application under H BALWANT SINGH (DEAD) v. JAGDISH SINGH & ORS. 599 Order 22 Rule 3 read with Section 151, of CPC while I. A. A No. 2 of 2010 be treated as an application under Order 22 Rule 9 CPC read with Sectio.n 5 of the Limitation Act, 1963. It was submitted by the applicants that they were not aware of the pendency of the appeal before the Court and came to know of the same only in March, 2010 from B their counsel. Dismissing the applications and, consequently, the appeal, the Court HELD: 1.1. The delay in filing the application I.A. No. C 1 of 2010 is considerable and it cannot be disputed that the onus to show that sufficient cause exists for condonation of delay lies upon the applic·ant. It is obligatory upon the applicant to show sufficient cause due to which he was prevented from continuing to D prosecute the proceedings in the suit or before the higher Court. From a bare reading of the application for condonation of delay, it is clear that the applicants were totally callous about pursuing their appeal. They have acted irrespbnsibly and even with negligence. Besides E this, they have not approached the Court with clean hands. The applicant, who seeks aid of the Court for exercising its discretionary_ power for condoning the delay, is expected to state correct facts and not state lies before the Court. Approaching the Court with unclean hands itself, is a ground for rejection of such application. [Paras 4, 5 and 6] [608-E-H; 609-E-F] F

1.2. In para 2 of the I.A. No. 1 of 2010, it has been shown that all the legal representatives of the deceased are residents of Ambala City, (Haryana) and that there are G no other legal heirs of the deceased. However, in para 4 of the I.A. No. 2 of 2010, it has been stated that the LRs 'of the deceased were in service and were not aware of the pendency of the appeal, implying that they were living H 600 SUPREME COURT REPORTS (2010] 8 S.C.R. A at different places and the letter of the lawyer was received at their residential address of Ambala. The stand taken in one application contradicts the stand taken in the other application. [Para 6] [609-G-H; 610-A] 11 8

1.3. Furthermore, it is stated that the applicants were not aware of the pendency of the appeal. This, again does not appear to be correct inasmuch as one of the legal representatives of the deceased, was examined in the trial court as AW4, who is the son of the deceased. It is difficult for the court to believe that the person who has C been examined as a witness did not even take steps to find out the proceedings pending before the highest [Para 6] [610-B-C] Court of the land. D E F

1.4. Even the letter, alleged to have been written by the counsel, has not been placed on record and the application ex facie lacks bona fide. There is not explanation on record as to why the application was not filed immediately in March 2010, as the applicants had come to know that the appeal was to be listed for hearing in the month of May, and still, till 15th April, 2010, no steps were taken to file the application. [Para 6] [610-C-D]

1.5. The cumulative effect of the conduct of the legal representatives of the sole deceased, appellant clearly shows that they have acted with callousness, irresponsibly and have not even stated true facts in the [Para 6] [610-D-E] application for condonation of delay.

1.6. Moreover, it will be difficult for the Court to exercise its discretionary power in favour of the G applicants. There is not even a whisper in the entire application as to why, right from the death of the deceased in November, 2007, the applicants did not take any steps whatsoever till 15th April, 2010 to inform their counsel about the death of the deceased and to bring the legal representatives on record. [Para 6] [610-E-F] H BALWANT SINGH (DEAD) v. JAGDISH SINGH & ORS. 601

2.1. A right accrued in favour of the respondents in A B appeal and it will be unfair and unjust to take away their vested right on such flimsy and baseless grounds a:s pleaded by the legal representatives of the deceased landlord. It is a settled position of law that a suit or an appeal abates automatically if the legal representatives, particularly, of the sole plaintiff or appellant, are not brought on record within the stipulated period. Order 22 Rule 3, CPC prescribes that where the plaintiff dies and the right to sue has survived, then an application could be filed to bring the legal representatives of the deceased c plaintiff I appellant on record within the time specified (90 days). Once the proceedings have abated, the suit essentially has to come to an end, except when the abatement is set aside and the legal representatives are ordered to be brought on record by the court of D competent jurisdiction in terms of Order 22 Rule 9(3), CPC. Order 22 Rule 9(3) of the CPC contemplates that provisions of Section 5 of the Indian Limitation Act, 1963 shall apply to an application filed under Sub-Rule (2) of Rule 9 of Order 22, CPC. Thus, an application for setting aside the abatement has to be treated at par and the principles enunciated for condonation of delay under Section 5 of the Limitation Act are to apply in para materia. [Para 7] [611 ~B-G] E

2.2. Section 3 of the Limitation Act requires that suits F or proceedings instituted after the prescribed period of limitation shall be dismissed. However, in terms of Section 5, the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows G 'sufficient cause' for not preferring the application within the prescribed time. The expression 'sufficient cause' commonly appears in the provisions of Order 22 Rule 9(2), CPC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be decided H 602 SUPREME COURT REPORTS [2010] 8 S.C.R. A on similar grounds. The decision of such an application has to be guided by similar precepts. [Para 7] [611-G-H; 612-A-C]

2.3. Liberal construction cannot be equated with 8 doing injustice to the other party. Delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. Even if the term 'sufficient cause' has to receive liberal C construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally concept of introduce 'reasonableness'as it is understood in its general connotation. The law of limitation is a substantive law D and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. [Para 13] [618- G-H; 619-A-B] E

2.4. Once a valuable right is accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right F on the mere asking of the applicant, particularly, when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The applications filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The H explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation G BALWANT SINGH (DEAD) v. JAGDISH SINGH & ORS. 603 rendered is not only true, but is worthy of exercising A judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. (Para 13] (619-B-E] B

2.5. Whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. Also the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. No provision can be treated to have been enacted C purposelessly. Furthermore, it is also a well settled cannot of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or otiose. Once the legislature has enacted the provisions of Order D 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such /an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. [Para 14] (621-E-H; 622-A] E

2.6. Liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. F There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect 'sufficient cause' as understood in law. The expression G 'sufficient cause' implies the presence of legal and adequate reasons. The words 'sufficient' means adequate enough, as much as may be necessary to It embraces no more than answer the purpose intended. H 604 SUPREME COURT REPORTS [2010] 8 S.C.R. A that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause sllould be such as it would persuade the B Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. The party c should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (Para 14] [622-C-H; 623-A] 0 . Ram Sumiran v. D. D. C. (1985) 1 SCC 431, held inapplicable E State of Bihar v. Karneshwar Prasad Singh (2000) 9 SCC 94, distinguished. Union of India v. Ram Charan; AIR 1964 SC 215; P. K. Ramachandran v. State of Kera/a; (1997) 7 SCC 556; Katari Suryanarayana v. Koppisetti Subba Rao AIR 2009 SC 2907; F Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321; Ram/al and Others v. Rewa Coalfields Ltd. AIR 1962 SC 361; Union oflndia v. Tata Yodogawa Ltd. 1988 (38) Excise Law Times 739 (SC) Collector of Central Excise, Madras v. A. MO. Bilal & Co. 1999 (108) Excise Law Times G 331 (SC), relied on. Mithailal Dalsangar Singh v. Annabai Devram Kini; (2003) 10 SCC 691 and Ganeshprasad Badrinarayan Lahoti v. Sanjeevprasad Jamnaprasad Chourasiya (2004) 7 SCC H 482, referred to. BALWANT SINGH (DEAD) v. JAGDISH SINGH & ORS. 605 , Advanced Law Lexicon, by P. Ramanatha Aiyar, 2nd A Edition, 1997 and 3rd Edition,· 2005, referred to.

#3. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay in just one of the ingredients which has to be B considered by the Court. In addition to. this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay ~ould easily be avoided, by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of C delay and applications belatedly filed beyond the prescribed period of lfmitation for bringing the legal representatives on record, should be rejected un!~ss sufficient cause is shown for condonation of delay. It is the requirement of law that these applications cannot be 0 allowed as a matter of right and even in a routine manner. [Para 16] [624-G-H; 625-A-C] E for a vague. averment

#4. As regards the· merits of the application in hand, except representatives were .not aware ,of the pende!lCY of the appeal before this Court, there is no other justifiable reason stated in the one page application. The application does not contain correct and true facts. Thus, want of bona fides is imputable to the applicant. There is no reason or sufficient cause shown as to whatsteps were taken during this period and why immediate steps were not taken by the applicant, even after they admittedly came to know of the pendency of the appeal before this Court. It is the abnormal conduct on the part of the applicants, particularly one of them who had G appeared as AW4 in the trial court and was fully aware of the proceedings, but still did not inform the counsel of the death of his father. The cumulative effect of all F H 606 SUPREME COURT REPORTS [2010] 8 S.C.R. A these circumstances is that the applicants have miserably failed in showing any 'sufficient cause' for condonation of delay of 778 days in filing the application in question. [Para 17) [625-D-H] B c D E F Case Law Reference: (1985) 1 sec 431 (2003) 1 o sec 691 (2004) 7 sec 482 AIR 1964 SC 215 (1997) 7 sec 556 AIR 2009 SC 2907 (2008) 8 sec 321 (2000) 9 sec 94 held inapplicable Para 7 referred to Para 7 referred to Para 7 relied on relied on Para 7 Para 8 relied on Para 10 relied on Para 10 distinguished Para 13 AIR 1962 SC 361 relied on 1988 (38) ELT 739 (SC) relied on 1999 (108) E LT 331 (SC) relied on Para 1 Para 1 Para 1 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1166 of 2006. From the Judgment & Order dated 21.05.2003 of the High Court of Punjab & Haryana at Chandigarh in Civil Revision No. 295 of 2002. Nagendra Rai, Rishi Malhotra, Prem Malhotra for the G Appellant. Pardeep Gupta, Arvind Bansal, Suresh Bharti, Laxmibai Leithanthem, Eklavya Gupta, K.K. Mohan for the Respondents. H BALWANT SINGH (DEAD) v. JAGDISH SINGH & ORS. 607 The Judgment of the Court was delivered by A B SWATANTER KUMAR, J. 1. The Learned Single Judge of the High Court of Punjab and Haryana at Chandigarh vide its Judgment dated 21st May, 2003 set aside the concurrent Judgment passed by the Appellate Authority, Ambala, dated 11th December, 2001 and that of the Rent Controller dated 27th September, 2000, passing an order of ejectment against the respondents in exercise of the powers conferred under Section 15 of the Haryana Urban Rent (Control of Rent and Eviction) Act, 1973 (for short 'the Act'). The petition had been instituted C by the landlord against the tenant on the ground of non-payment of rent. The tenant had denied the relationship of landlord and tenant and even claimed title to the said property on the basis of an agreement dated 21st November, 1953 entered into between the predecessor in interest of the petitioner. The ground taken for ejectment of the tenant in the eviction petition D was non-payment of rent which was only Rs. 200/- per month. As already noticed, the judgment of the Appellate Authority was set aside by the High Court vide its judgment dated 21st May, 2003 and it is this judgment of the High Court which has been assailed by way of a Special Leave Petition before this Court. The leave to appeal was granted by the Court vide order dated 13th February, 2006. E F

#2. During the pendency of the appeal on 28th November, 2007, the sole petitioner died. From the record, it appears that no steps were taken to bring on record the legal representatives of the deceased appellant for a considerable period of time on record. Somewhere on 15th April, 2010, I.A. No. 1 of 2010 has been filed along with I.A. No. 2 of 2010 praying for condonation of delay in filing the application for bringing the legal heirs on G record. As is evident from the above narrated facts, the appellant died on 28th November, 2007 while the present applications have been filed on or about 15th April, 2010. Thus, there is delay of 778 days in filing these applications. The application for condonation of delay was seriously contested H 608 SUPREME COURT REPORTS [2010] 8 S.C.R. A on behalf of the non-applicants. It was argued that no sufficient cause or even a reasonable cause has been shown for condoning the delay of more than two years and the appeal has already abated. The application, besides being vague at the face of it, contains untrue averments. As such, it is prayed that the application should be dismissed and consequently, the appeal would not survive for consideration. B

#3. Firstly, we have to deal with I.A. No. 2 of 2010, which is an application for condonation of delay in filing the application for bringing the legal representatives on record. The Learned Counsel appearing for the applicant stated that though no specific provision had been stated in the headings of any of the applications, I.A. No. 1 of 2010 should be treated as an application under Order 22 Rule 3 read with Section 151, of Code of Civil Procedure (hereinafter referred to as 'CPC') while I.A. No. 2 of 2010 should be treated as an application under Order 22 Rule 9 read with Section 5 of the Limitation Act, 1962. C D

#4. At the very outset, we may notice that the delay in filing the application I.A. No. 1 of 2010 is considerable and it cannot E be disputed that the onus to show that sufficient cause exists for condonation of delay lies 'upon the applicant.

#5. It is obligatory upon the applicant to show sufficient cause due to which he was prevented from continuing to F prosecute the proceedings in the suit or before the higher Court. Here there is admittedly, a delay of 778 days in filing the application for bringing the legal representative on record. To explain this delay, the applicant has filed a one page application stating that they were not aware of the pendency of the appeal before the Court and came to know, only in March, 2010 from their counsel that the case would be listed for final disposal during the vacations in May, 2010. Then the applications, as already noticed, were filed on 15th April, 2010. In order to examine the reliability and worthiness of the alleged sufficient cause for condonation of delay, it will be appropriate to refer G H BALWANT SINGH (DEAD) v. JAGDISH SINGH & ORS. [SWATANTER KUMAR, J.] 609 to paragraph 2 of the application which is the only relevant A paragraph out of the four paragraph application: "That the LRs. of the applicants are residing on different addresses because the LRs. of the appellanUdeceased are in service and they were not aware of the pendency 8 of any appeal before this Hon'ble Court. However, when the letter from the counsel for Sh. Balwant Singh were received at home at Ambala that the appeal is being listed for final hearing during vacation in the month of May, 2010 then these LRs. came to know about the pendency of the C appeal. Thereafter these LRs: contacted the counsel in the month of March, 2010 to find out the position of the case. When they contacted the counsel at New Delhi these LRs. the counsel was told about the death of Sh. Balwant Singh which had taken place in November, 2007. It was further pointed out to the counsel that the LRs. were not aware D about the pendency of the appeal in this Court or about the requirement of law to bring the LRs. on record after the death of Balwant Singh. It is now they have come to know that the LRs. of Balwant Singh are required to be brought on record otherwise the appeal would abate." E

#6. It is clear from the bare reading of the above paragraph that the applicants were totally callous about pursuing their appeal. They have acted irresponsibly and even with negligence. Besides this, they have not approached the Court F with clean hands. The applicant, who seeks aid of the Court for exercising its discretionary power for condoning the delay, is expected to state correct facts and not state lies before the Court. Approaching the Court with unclean hands itself, is a ground for rejection of such application. In para 2 of the I.A. NO. G 1 of 2010, it has been shown that all the legal representatives of the deceased are residents of 9050/5, Naya Bas, Ambala City, (Haryana) and that there are no other legal heirs of the deceased. However, in para 4 of the I.A. No. 2 of 2010, it has been stated that the LRs. of the deceased were in service and H 610 SUPREME COURT REPORTS [2010] 8 S.C.R. A were not aware of the pendency of the appeal, implying that they were living at different places and the letter of the lawyer was received at their residential address of Ambala. The stand taken in one application contradicts the stand taken in the other application. Furthermore, it is stated that they were not aware B of the pendency of the appeal. This, again, does not appear to be correct inasmuch as one of the legal representatives of the deceased, namely Har-lnder Singh was examined in the Trial Court as AW4, who is the son of the deceased. It is difficult for the Court to believe that the person who has been examined c as a witness did not even take steps to find out the proceedings pending before the highest Court of the land. Eve.n the letter, alleged to have been written by the counsel, has not been placed on record and the application ex facie lacks bona fide. There is no explanation on record as to why the application was 0 not filed immediately in March 2010, as they had come to know that the appeal was to be listed for hearing in the month of May, and still, till 15th April, 2010, no steps were taken to file the application. The cumulative effect of the above conduct of the legal representatives of the sole deceased, appellant clearly shows that they have acted with callousness, irresponsibly and E have not even stated true facts in the application for condonation of delay. The approach and conduct of the applicants certainly would invite criticism. Moreover, it will be difficult for the Court to exercise its discretionary power in favour of the applicants. There is not even a whisper in the entire application as to why, right from the death of the deceased in November, 2007, the appellant did not take any steps whatsoever till 15th April, 2010 to inform their counsel about the death of the deceased and to bring the legal representatives on record. F G