BRIJ BIHARI PANDEY v. CHANDRA BRAT GUPTA

Judgment

2. VERSUS CHANDRA BRAT GUPTA, SON OF LATE GAURI SHANKAR PRASAD SMT. GAYATRI DEVI, WIFE OF L.N. GUPTA, DAUGHTER OF LALMUNI DEVI

4. BOTH RESIDENT OF VILLAGE, P.S. AND DISTRICT BOKARO, AT PRESENT MARWARI MOHALLA, P.O., P.S. AND DISTRICT GOPALGANJ 3. SMT. GITA DEVI WIFE OF RAMDHYAN PRASAD, DAUGHTER OF LALMUNI DEVI, RESIDENT OF VILLAGE AND P.O. LOHARDAGGA, P.S. LOHARDAGGA, DISTRICT RANCHI, AT PRESENT MARWARI MOHALLA, P.O., P.S. AND DISTRICT GOPALGANJ KUMARI INDU, DAUGHTER OF LATE GAURI SHANKAR PRASAD, RESIDENT OF VILLAGE MARWARI MOHALLA, P.O., P.S. AND DISTRICT GOPALGANJ RAGHUNATH PRASAD BRAJ BIHARI PRASAD SHYAM SUNDER PRASAD MANOJ PRASAD BINOD PRASAD, SON OF LATE GANDHI PRASAD PRAMOD PRASAD BABLU PRASAD PRADEEP PRASAD BABY KUMARI GEETA DEVI, WIFE OF ASHOK KUMAR

5. 6. 7. 8. SON OF SRI SATYA NARAYAN PRASAD 9. 10. 11. 12. 13. 14. ALL SONS/DAUGHTERS OF SRI SATYA NARAYAN 0PRASAD 15. MEERA DEVI, WIFE OF SRI SACHITANAND PRASAD, RESIDENT OF VILLAG AND P.O. MATWA PURANI GOLA, CHAPRA, DISTRICT SARAN SHANTI DEVI, WIFE OF SHANKAR PRASAD, DAUGHTER OF LATE SATYA NARAYAN PRASAD, RESIDENT OF VILLAGE AND P.O. CHARISARARI MOTKESARI, CHAPRA, DISTRICT SARAN SHANKAR SINGH GHULON SINGH

17. 18. BOTH SONS OF KAMLA SINGH

16. 2

20. SHANTI DEVI WIFE OF BISHWANATH SINGH ALL RESIDENT OF VILLAGE AND P.O. AHIRAULI BAHOL, P.S. BANKATA, DISTRICT DEORIA (UP) KANTI DEVI, WIFE OF RAJENDRA SINGH, RESIDENT OF VILLAGE AND P.O. JADAR, P.S. MALAWANI, DISTRICT DEORIA (UP) SUKRANI DEVI, WIFE OF GIRDHAR GOPAL PANDEY ANIL KUMAR PANDEY SUNIL KUMAR PANDEY SUSHIL KUMAR PANDEY RAMESH KUMAR PANDEY

21. 22. 23. 24. 25. ALL ARE SONS OF GIRIDHAR GOPAL PANDEY 26. ALL ARE RESIDENT OF VILLAG GOPALGANJ FAKIR TOLA DARGAH, PERGANA SIPAH, P.O., P.S. AND DISTRICT GOPALGANJ 27. 28. BOTH ARE SONS OF LATE VISHWANATH DUBEY, RESIDENT OF VILLAGE BHADAURA, PERGANA BARA, P.S. AND DISTRICT SIWAN AT PRESENT KHAJURIA PER SIPAH, P.S. AND DISTRICT GOPALGANJ 29. NAND GOPAL PANDEY, SON OF RAJA PANDEY SANTOSH DUBEY NAWAL DUBEY

ANAND NATH TIWARY, SON OF BIRKESHWAR TIWARY 30. KISMATI DEVI WIFE OF RAM EKBAL RAI 31. SMT. MANJU DEVI, WIFE OF RAMA RAI ALL ARE RESIDENT OF VILLAGE BHOJALI, P.O. AND P.S. JADOPUR, DISTRICT GOPALGANJ 32. KISHUN PANDEY, SON OF RAM AYODHYA PANDEY, RESIDENT OF VILLAGE KHAJURIA, P.O. AND P.S. GOPALGANJ, DISTRICT GOPALGANJ …………. ……………RESPONDENTS ******************

22.01.2009 This appeal is directed against the order, dated 12.3.2008 passed by the 1st Additional District Judge, Gopalganj by which he has held that Title Appeal No. 12 of 2001 has abated. The plaintiffs had filed a suit declaration that the defendants 3rd set had no title over the disputed land and had prayed for declaration 3 that the title of the plaintiffs and the defendants 1st set be declared. A prayer was also made for recovery of possession of the disputed lands. The suit was decreed and the defendants 3rd set were directed to hand over the possession of the suit land to the plaintiffs within thirty days. Being aggrieved with the judgment and decree of the Sub Judge VII, Gopalganj, the appellants before this Court filed Title Appeal No. 12 of 2001. During the pendency of the appeal, several respondents died and a petition for substitution and setting aside the order of abatement of the appeal was filed by the appellants which has been dismissed vide order, dated 12.3.2008 by the 1st Additional District Judge which has led to the filing of the present appeal. The Trial Court has allowed the appellants’ petition by which the names of respondents 12, 16 and 29 were expunged from the memo of appeal on the ground that the aforesaid three respondents died issueless and as such no substitution was required to be filed on their behalf. Gauri Shankar, respondent no. 1 and his wife, respondent no. 3 also died during the pendency of the appeal. It has been pleaded on behalf of the appellants that their son Chandra Brat Gupta was already on record and as such the Court below has 4 erred in not allowing the substitution petition and setting aside the order of abatement of the appeal so far as it concerns respondents 1 and 3. It is well settled by several decisions of the Supreme court wherein it has been held that if one of the heirs of the parties is already on record, the suit/appeal would not abate in view of the fact that the estate of the deceased is sufficiently represented and as such substitution petition ought to have been allowed. There are many judgments on this issue and one among them is Collector of 24 Parganas Vs. L. Mohan Mallick (1998 SC 2121). I, therefore, find that there would be no justification for rejecting the petition for setting aside the abatement with respect to respondents 1 and 3. Vishwanath Dubey, respondent no. 28, died on 1.5.2005 and it was asserted on behalf of the appellants that they could not come to know about the date of his death. This fact was disputed and it has been stated on behalf of the respondents that the appellants had knowledge of death of respondent no.28 as an application had been filed by the appellants in Execution Case No.5 of 2006 stating that the decree cannot be executed because of the fact that respondent no. 28 had died and, therefore, the 5 appellants are not justified in claiming that they did not have knowledge regarding the death of respondent no. 28. The Court below on this ground has rejected the petition for setting aside the abatement and the limitation petition filed for condoning the delay in filing the substitution petition. Learned Counsel for the appellants, on the other hand, submits that an application was filed before the Court below under Section 151 of the Code of Civil Procedure in which it has been stated that on

12.1.2008 about fifteen petitions were drafted and filed and by mistake and inadvertence, an entire paragraph could not be mentioned in the petition under section 5 of the Limitation Act connection with respondent no.28. The paragraph is quoted below : “That from perusal of the case record of Execution Case No.5 of 2006, it now transpired that the then counsel for the appellant-judgment debtor came to know about the fact of death of respondent no. 28 on 19.9.2006 from the service of notice; but unfortunately the appellant was not advised to take necessary steps within time. It would further transpire that neither of the learned counsel for both the parties brought this fact to the notice of the court at any earlier point of 6 time. Since there has been no willful default on the part of innocent appellants who have been betrayed and kept in dark by the previous counsel and we are ready to bear the cost (if any) imposed by the learned court, it is expedient in the interest of justice to condone the delay in filing the substitution petition, so that the appeal may be heard and decided on merits.” This Court after considering the arguments of both the parties which have been vehemently advanced in support of their respective stands finds that there are several cases wherein the Apex court and the High Court has time and again held that a liberal construction should be made to the expression “sufficient cause” within the meaning of Section 5 of the Limitation Act or under Order 22 rule 9 of the Code of Civil Procedure or other similar provisions of law. The explanation given by the parties should be reasonable and not fabricated or improbable. In this case the explanations given for delay in filing the substitution petition is reasonable as it is accepted that several of the respondents during the pendency of the proceedings died and Counsel were filing several petitions, it is possible and 7 reasonable that both the Counsel and the clients may have overlooked an obvious fact which in the present case has been corrected by filing a supplementary affidavit owning up to the fact that it was mistake which was not intentional. Under the circumstances, the Court ought to have considered that sufficient reasons have been given by the appellants with respect to the delay in bringing on record the heirs of respondent. As far as defendant no. 35 is concerned, the substitution petition has been rejected on the ground that the appellant has stated that there are no legal heirs of defendant no. 35 whereas an objection was filed in which it had been stated that brothers of defendant no. 35 are alive and as such the plea taken in the substitution petition is not justified. Defendant no. 35 is said to be the purchaser from Ranjeet Pandey, defendant no. 7 who is already on record and against whom no order of abatement was passed. The rights of defendant no. 35 would be subject to the finding of the Court with respect to the title of defendant no. 7 and as such although he may be a necessary party, it can not be said that he would the main contesting defendant. As such, the abatement against defendant no. 35 is set aside and the 8 appellants should file proper substitution petition in the court below. After discussing reasons dismissing the appeal on the ground that some of the defendants have died, this Court set aside the order dated 12.03.2008 subject to the payment of cost of Rs. 2500/- which should be paid to the defendant no. 1 through his Counsel within a period of three weeks from today. All the parties should appear before the Court below and the Court below should take appropriate steps and proceed with the appeal in accordance with law. The appeal is thus allowed. Anand ( Sheema Ali Khan, J. )