Union of India Vs. Ram Charan &
Ors  INSC 125 (30 April 1963)
30/04/1963 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
CITATION: 1964 AIR 215 1964 SCR (3) 467
R 1983 SC1202 (5)
Abatement of appeal-Death of respondent-Application
by appellant to bring legal representatives of respondent on record Application
filed after lapse of three months after death-What is "sufficient
cause"-Limitation for application to set aside abatement starts from date
of death and not from date of appellant' knowledge of death--Scope of s. 151
C.P.C.-India Limitation Act, 1908 (9 of 1908) Art, 171- Code of Civil Procedure
1908 (Acl. 5 of 1908), 0.22, s. 151, rr.
Ram Charan obtained a money decree against
the Union of India. An appeal was filed against that decree in the High Court.
Ram Charan respondent died on july 21, 1957. On March 18, 1958, an application
was filed in the High Court under 0.22, R .4 read with s. 151 of the Code by
Civil Procedure stating that the respondent had died on July 21, 1957 and the
Divisional Engineer, Telegraphs, learnt of his death on February 3, 1958 and
the deceased had left his widow and an adopted son as his legal
representatives. A prayer was made to bring the legal respresentatives of the
deceased on record. The High Court dismissed the application on the ground that
the appellant had failed to show sufficient cause for not bringing the legal
representatives of the deceased on record within time. The appeal was also
dismissed. In the appeal before this Court, it was contended on behalf of the
appellant that the mere ignorance of death of the respondent was sufficient
cause for the appellant's inability to apply for the impleading of legal
representatives within time unless the appellant was guilty of some negligence
or some act or omission which led to delay in his making the application, that
once the respondent was served no duty was cast on the appellant to make
further enquiries about the state of health of the respondent, that expression
sufficient cause' should be liberally construed in order to advance the cause
of justice, that the Court itself had inherent power to add legal
representatives to do justice to the party and that the High Court misapplied
the decision of the Full Bench 468 in Firm Dittu Ram Eyedan v. Om Press Co.
Ltd. to the facts of the present case.
Held that limitation for an application to
set aside the abatement of an appeal starts on the death of the respondent and
not from the date of the appellant's knowledge thereof.
Held also that the Court is not to invoke its
inherent powers under s. 151 C.P.C. for the purpose of impleading legal
representatives of a deceased respondent, if the suit had abated on account of
the appellant not taking appropriate steps within time to bring legal
representatives of the deceased on the record and when its application for
setting aside abatement was not allowed on account of its failure to satisfy
the court that there was sufficient cause for not impleading the legal representatives
of the deceased in time and for not applying for setting aside of the abatement
Held also that the expression sufficient
cause' is not to be liberally construed either because the party in default was
the Government or because the question arose in connection with the impleading
of the legal representatives of the deceased respondent. The Court should not
readily accept whatever is alleged to explain away the default. The delay in
making the application should not be for reasons which indicate the negligence
of the party making the application in not taking certain steps which he could
have and should have taken The court has to be satisfied that there were
certain valid reasons for the applicant not knowing the death within a reasonable
time. The bare statement of the applicant is not enough.
Firm Dittu Ram Eyedan v. Om Press Co. Ltd.
(1960) 1 I.L.R- Punjab. 935 (F.B.), State of Punjab v. Nathu Ram  2 SC R.
636 and Jhanda Singh v. Gurmukh Singh C. A. No. 344 of 1936 dated 10.4.62,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1115 of 1962.
Appeals by special leave from the judgments
and orders dated February 16,26, 1960, of the Punjab High Court in Civil Misc.
No. 1212-C of 1959 and Regular First Appeal No.
44 of 1955.
D.R. Prem and P.D. Menon, for the appellant.
469 Veda Vyasa, K. K. Jain, for P.C. Khanna,
1963. April 30. The judgment of the Court was
delivered by RAGHUBAR DAYAL J.-The facts leading to this appeal, by special
leave, against the orders of the high Court of Punjab are these. Ram Charan
obtained a decree for money against the Unioun of India on January 6, 1955. The
Union of India presented an appeal on April 6, 1955, in the High Court. Ram
Charan, the sole respondent, filed a cross- objection on July 31, 1955. On
February 6, 1956 the High Court passed an order in connection with the surety
Ram Charan was represented at the
proceedings. Ram Charan died on July 91, 1957.
On March 18, 1958 an application was
presented to the High Court on behalf of the appellant under O. XXII, r. 4,
read with s. 151, Code of Civil Procedure, stating that Ram Charan died on July
21, 1937, that the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt
of his death on February 3, 1958, and that the deceased had left as his legal
representatives, an adopted son and a widow. It was prayed that these legal
representatives be brought on record in the place of the deceased respondent.
The affidavit filed in support of this application did not convey any further
information and it was solemnly affirmed by the dependent that the averments in
the -affidavit were true to his belief The deponent was no other than the
Divisional Engineer, Telegraphs, Ambala Cantonment.
On May 13, 1958, the widow of Ram Charan
applied that she alone was the legal representative of Ram Charan under a will
and that the alleged adopted son was not the legal representative. The
appellant's application for bringing on record the 470 legal representatives of
the deceased Ram Charan came up for hearing on May 14, 1958. The Court ordered
the application to be heard at the time of the hearing of the appeal as it was
pointed out that there was a difference of opinion in the Court as to whether
limitation under 0. XXII of the Code started from the date of death or from the
date of knowledge of death. Subsequently, on an application on behalf of the
legal representatives, it was ordered that the question of abatement be decided
first and thereafter the printing of the record be taken on hand. The
application for substitution came up for decision on February 16, 1960. It was
dismissed, the Court holding that the Union of India had failed to show that it
was prevented from any sufficient cause from continuing the appeal. On February
26, 1960, the appeal itself was dismissed as having abated.
On May 14, 1960, an application for leave to
appeal to the Supreme Court was presented to the High Court. The heading of the
application was described to be one for leave to the Supreme Court from the
judgment dated February 16, 1960, in C.M. No. 1212/C of 1959 in R.F.A. No. 44
This application was rejected on May 17,
1960. Thereafter, an application for special leave was filed in this Court.
Special leave was prayed for appealing from
the judgment of the High Court of Punjab in R.F.A.No.44 of 1955 and C.M. No.
1212-C/59 dated February 16/26 of 1960. The
order granting special leave said:
"That special leave be and is hereby
granted to the petitioner to appeal to this Court from the judgment and order
dated 16th day of February, 1960 and 26th day of February, 1960 of the Punjab
High Court in Civil Miscellaneous No. 1212-C of 1959 and Regular First Appeal
No. 44 of 1955." A preliminary objection was taken to the effect that the
appellant having not applied to the 471 High Court for leave to appeal against
the order dated February 26, 1960 in Regular First Appeal, that order had
become final and special leave could not be asked for from this Court in view
of Order XIII, r.2 of the Supreme Court Rules, 1950, the rule being:
"Where an appeal lies to the Supreme
Court on a certificate issued by the High Court or other tribunal, no
application to the Supreme Court for special leave to appeal shall be
entertained unless the High Court or tribunal concerned has first been moved
and it has refused to grant the certificate." We do not see any force in
this objection and reject it. The application for leave to appeal, though
described as one against the judgment in the miscellaneous case and not against
the order in the regular appeal, stated in paragraph I that the regular first
appeal had been ordered to have abated and in paragraph 3 that it was a fit
case in which necessary certificate for filing an appeal against the judgment
passed by the Court in regular first appeal No. 44 of 1955 be granted. Both
these statements refer to the proceedings in connection with the regular first
appeal and not of the order on the miscellaneous application for substitution.
Ground No. 2 referred to those proceedings.
The application, therefore, was really an
application for leave to appeal against both the orders.
The High Court does appear to have construed
that application in this manner. Its order dated May 17, 1960 stated :
"The appeal was decided as having abated
because the appellant failed to show sufficient cause for not bringing the
legal 472 representatives of the deceased respondent within time." To
appreciate the real contention between the parties before us, we may now give
in brief, the reasons for the order of the High Court dated February 16, 1960.
It may be pointed out that in the narration of facts the High Court stated that
the application dated March 17, 1958, was filed under O. XXII, rr. 4 and 9 read
with s. 151 of the Code. ' he application, as printed on the record, did not
purport to be under r. 9 of O. XXII, C.P.C. There is not a word in the
application that the appeal had abated and that the abatement be set aside The
error in this respect seemed to have further led to the error in stating that the
reason for the delay given in the application was that the Divisional Engineer,
Telegraphs, came to know about Ram Charan's death on February 3, 1958, there
being no reason mentioned in the application. It was just stated as a matter of
fact that the Engineer had come to know of the death on February 3, 1958. The
order states that some application was presented by the Union of India on May
14, and that it was stated therein that the interval between February 3 and
1,958, was spent in collecting information
about the legal representatives of the deceased. This application, however, is
not printed in the paper book.
The High Court relied on the Full Bench case
of its Court reported in Firm Dittu Ram Eyedan v. Om Press Co. Ltd., (1), which
held that ignorance of the death of the defendant was not a sufficient cause
for setting aside the abatement when an application to bring the legal
representatives of' the deceased on the record was made after the expiry of the
period of limitation, as the law imposed an obligation on the person applying
for bringing the legal representatives of the deceased on the record and he
had, therefore, to show absence of want of care. The (1) (1960) 1 1. L. R. Punj
935 473 High Court held that the Union of India did not state either in its
application dated March 17, 1958, or in the other application dated May 14,
1958, that the Government had not been careless in the matter and had been
vigilant in keeping itself informed regarding the whereabouts of Ram Charan and
that it would not have been difficult for the Government to have come to know
of Ram Charan's death, who lived in Ambala Cantonment, to which place the
The contentions raised for the appellant in
this Court are :
(1) That mere ignorance of death of the res-
pondent was sufficient cause for the appel- lant's inability to apply for the
impleading of the legal representatives within time, unless it be that the
appellant was guilty of some negligence or some act or omission which led to
the delay in his making the application.
(2) Once the respondent is served in the
first appeal, no duty is cast on the appellant to make regular enquiries about
the state of health of the respondent.
(3) The expression 'sufficient cause' should
be liberally construed in order to advance the cause of justice.
(4) The Court itself' has inherent power to
add legal representatives to do full justice to the party.
(5) The High Court misapplied the decision of
the Full Bench of its Court to the facts of the present case.
We may say at once that there is no force in
the fourth point. The Court is not to invoke its inherent 474 powers under s.
151, C.P.C. for the purposes of impleading the legal representatives of a
deceased respondent, if the suit had abated on account of the appellant not
taking appropriate steps within time to bring the legal representatives of the
deceased party on the record and when its application for setting aside the
abatement is not allowed on account of its failure to satisfy the Court that there
was sufficient cause for not impleading the legal representatives of the
deceased in time and for not applying for the setting aside of the abatement
There is no question of construing the
expression 'sufficient cause' liberally either because the party in default is
the Government or because the question arises in connection with the impleading
of the legal representatives of the deceased respondent. The provisions of the
Code are with a view to advance the cause of justice. Of course, the Court, in
considering whether the appellant has established sufficient cause for his not
continuing the suit in time or for not applying for the setting aside of the
abatement within time need not be over-strict in expecting such proof of the
suggested cause as it would accept for holding certain fact established, both
because the question does not relate to the merits of the dispute between the
parties and because if the abatement is set aside, the merits of the dispute
can be determined while, if the abatement is not set aside, the appellant is
deprived of his proving his claim on account of his culpable negligence or lack
This, however, does not mean that the, Court
should readily accept whatever the appellant alleges to explain away his default.
It has to scrutinize it and would be fully justified in considering the merits
of the evidence led to establish the cause for the appellant's default in
applying within time for the impleading of the legal representatives of the
deceased or for setting aside the abatement.
475 It is true, as contended, that it is no
duty of the appellant to make regular enquiries from time to time about the
health or existence of the opposite party, but it does not mean that the mere
fact of the appellant's coming to know of the respondent's death belatedly
will, by itself, justify his application for setting aside the abatement.
That is not the law Rule 9 of O. XXII of the
Code requires the plaintiff to prove that he was prevented by any sufficient
cause from continuing the suit. The mere allegation about his not coming to
know of the death of the opposite party is not sufficient. He had to state
reasons which, according to him, led to his not knowing of the death of the
defendant within reasonable time and to establish those reasons to the
satisfaction of the Court, especially when the correctness of those reasons is
challenged by the legal representatives of the deceased who have secured a
valuable right on the abatement of the suit.
It is not necessary to consider whether the
High Court applied its earlier Full Bench decision correctly or not when we are
to decide the main question urged in this appeal and that being the first
contention Rules 3 and 4 of O.
XXII, C.P.C. lay down respectively the
procedure to be followed in case of death of one of several plaintiffs when the
right to sue does not survive to the surviving plaintiffs alone or that of the
sole plaintiff when the right to sue survives or of the death of one of several
defendants or of sole defendant in similar circumstances.
The procedure requires an application for the
making of the legal representatives of the deceased plaintiff or defendant a
party to the suit. It does not say who is to present the application.
Ordinarily it would be the plaintiff, as by the abatement of the suit the
defendant stands to gain.
However, an application is necessary to be
made for the purpose. If no such application is made within the time allowed by
law, the suit abates to far as the deceased 476 Plaintiff is concerned or as
against the deceased defendant.
The effect of such an abatement on the suit
of the surviving plaintiffs or the suit against the surviving defendants
depends on other considerations as held by this Court in State of Punjab v.
Nathu Ram (1) and Jhanda Singh v. Gurmukh Singh (2) . Anyway, that question
does not arise in this case as the sole respondent had died.
It may be mentioned that in view of r. 11 of
O.XXII, the words 'plaintiff', 'defendant' and 'suit' in that Order include
'appellant', 'respondent' and` appeal' respectively.
The consequence of the abatement of the suit
against the defendant is that no fresh suit can be brought on the same cause of
action. Sub-rule (1) of r. 9 bars a fresh suit. The only remedy open to the
plaintiff or the person claiming to be the legal representative of the deceased
plaintiff is to get the abatement of the suit set aside and this he can do by
making an application for that purpose within time. The Court will set aside
the abatement if it is proved that the applicant was prevented by any
sufficient cause from continuing the suit. This means that the applicant had to
allege and establish facts which, in the view of the Court, be a sufficient
reason for his not making the application for bringing on record the legal
representatives of the deceased within time. If no such facts are alleged,.
none can be established and, in that case the Court cannot set aside the
abatement of the suit unless the very circumstances of the case make it so
obvious that the Court be in a position to hold that there was sufficient cause
for the applicants not continuing the suit by taking necessary steps within the
period of limitation.
Such would be a very rare case. This means
that the bare statement of the applicant that he came to know of the death of
the other party more than three months after the death will not (1) [ 1962] 2
S. C. R, 636.
(2) C. A. No. 344 of 1956 decided on April
477 ordinarily be sufficient for the Court's
holding that the applicant had sufficient cause for not impleading the legal
representatives within time. If the mere fact that the applicant had known of
the death belatedly was sufficient for the Court to set aside the abatement,
the legislature would have. expressed itself differently and would not have
required the applicant to prove that he was prevented by any sufficient cause
from continuing the suit. The period of limitation prescribed for making such
an application is three months, under Art. 171 of the First Schedule to the
Limitation Act. This is a sufficiently long period and appears to have been
fixed by the legislature on the expectancy that ordinarily the plaintiff would
be able to learn of the death of the defendant and of' the persons who are his
legal representatives within that period. The legislature might have expected
that ordinarily the interval between two successive hearings of a suit will be
much within three months and the absence of any defendant within that period at
a certain hearing may be accounted by his counsel or some relation to be due to
his death or may make the plaintiff inquisitive about the reasons for the other
party's absence. The legislature further seems to have taken into account that
there may be cases where the plaintiff may not know of the death of the defendant
as ordinarily expected and, therefore, not only provided a further period of
two months under art. 176 for an application to set aside the abatement of the
suit but also made the provisions of s. 5 of the Limitation Act applicable to
such applications. Thus the plaintiff is allowed sufficient time to make an
application to set aside the abatement which, if exceeding five months, be
considered justified by the Court in the proved circumstances of the case. It
would be futile to lay down precisely as to what considerations would
constitute 'sufficient cause' for setting aside the abatement or for the
plaintiff's not applying to bring the legal representatives of the deceased 478
defendant on the record or would be held to be sufficient cause for not making
an application to set aside the abatement within the time prescribed. But it
can be said that the delay in the making of such applications should not be for
reasons which indicate the plaintiff's negligence in not taking certain steps
which he could have and should have taken. What would be such necessary steps
would again depend on the circumstances of a particular case and each case will
have to be decided by the Court on the facts and circumstances of the case. Any
statement of illustrative circumstances or facts can tend to be a curb on the
free exercise of its mind by the Court in determining whether the facts and
circumstances of a particular case amount to `sufficient cause' or not Courts
have to use their discretion in the matter soundly in the interests of justice.
It will serve no useful purpose to refer to
the cases relied on for the appellant in support of its contention that the
appellant's ignorance of the death of the respondent is sufficient cause for
allowing its application for the setting aside of the abatement and that in any
case it would be sufficient cause if its ignorance had not been due to its
culpable negligence or mala fides. We have shown above that the mere statement
that the appellant was ignorant of the death of the respondent, cannot be
sufficient and that it is for the appellant, in the first instance, to allege
why he did not know of the death of the respondent earlier or why he could not
know about it despite his efforts, if he had made any efforts on having some
cause to apprehend that the respondent might have died. The correctness of his
reasons can be challenged by the other party. The Court will then decide how
far those reasons have been established and suffice to hold that the appellant
had sufficient cause for not making an application to 479 bring the legal
representatives of the deceased respondent earlier on the record.
In the present case, the appellant had
adopted a very wrong attitude from the very beginning. In its application dated
March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri
Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it
on February 3, 1958. Shri Bhatia did not say anything more in his affidavit and
did not verify it on the basis of his personal knowledge. Why he did not do so
is difficult to imagine if.
he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his
knowledge, rather than true to his belief. Further, it appears from the judgment
of the High Court that no further information was conveyed in the application
dated May 13, 1958 which is not on the record. The most damaging thing for the
appellant is that the application came up for bearing before the learned Single
judge and at that time the stand taken by it was that limitation for such an
application starts not from the date of death of the respondent but from the
date of the appellant's knowledge of the death of the respondent. The
appellant's case seems to have been that no abatement had actually taken place
as the limitation started from February 3, 1958, when the appellant's officer
knew of the death of the respondent and the application was made within 3
months of that date. It appears to be due to such an attitude of the appellant
that the application dated March 17, 1958 purported to be simply under r. 4 O.
XXII and did not purport to be under r. 9 of the said Order as well and that no
specific prayer was made for setting aside the abatement. The limitation for an
application to set aside abatement of a suit does start on the death of the
deceased respondent. Article 171, First Schedule to the Limitation Act provides
that. It does not provide 480 the limitation to start from the date of the
appellant's knowledge thereof. The stand taken by the appellant was absolutely
unjustified and betrayed complete lack of knowledge of the simple provision of
the Limitation Act. In these circumstances, the High Court cannot be said to
have taken an erroneous view about the appellant's not establishing sufficient
ground for not making an application to bring on record the representatives of
the deceased respondent within time or for not making an application to set
aside the abatement within time.
We, therefore, see no force in this appeal
and dismiss it with costs.