Smt. Jagwati Devi vs Sita Ram Jain And Master Gaurav on 26 March, 2007

Delhi High Court
Smt. Jagwati Devi vs Sita Ram Jain And Master Gaurav on 26 March, 2007
Author: J Malik
Bench: J Malik


J.M. Malik, J.

1. Vide judgment dated 02.12.1987, a decree for possession in respect of the disputed plot was passed by the Trial Court in favor of Sita Ram and his wife Smt. Kamla Rani, who were plaintiffs in the main suit and against Smt. Jagwati Devi, appellant/defendant. Aggrieved by that order, Smt. Jagwanti Devi filed an appeal on 24.02.1988, wherein Smt Kamla Rani and Shri Sita Ram were arrayed as respondents No. 1 and 2 respectively.

2. Smt. Kamla Rani expired on 6.12.1990, during the pendency of the first appeal. Counsel for the above said respondents moved an application on 23.2.1991, where it was clearly, specifically and unequivocally mentioned that Smt. Kamla Rani, respondent No. 1 had left behind her, Shri Sita Ram, her husband and master Gaurav, her son aged about 13 years. No application for substitution of LRs of deceased Smt. Kamla Rani was filed.

3. Instead, the appellant Smt. Jagwati Devi moved an application on 20.2.1992 stating that the name of Smt. Kamla Rani be struck off from the array of respondents because after the death of Smt. Kamla Rani, her husband Shri Sita Ram is the sole surviving representative and her minor son does not acquire any right to be sued in that appeal. She also unambiguously mentioned ‘that right to be sued survives to the sole surviving, legal representative Shri Sita Ram, respondent No. 2 and not to her son.’ The First Appellate Court vide its order dated 6.5.1992 deleted the name of respondent No. 1 accordingly. Vide order sheet dated 5.11.1997, learned Counsel for the respondent argued that the appeal stood abated. The Court left this point open and fixed the case for final arguments on 25.11.1997. On 4.7.1998, the First Appellate Court ordered that appeal stood abated as incompetent.

4. After dismissal of the appeal, application Under Order 22 Rule 9 CPC was filed by Smt. Jagwati Devi on 17.8.1998 wherein it was prayed that the order dated 4.7.1998 be set aside. She moved another application on 16.3.2004 purporting to be an application under Order 22 Rule 4 and 9 read with Section 151 CPC. It was described to be an application in continuation to the application filed on 17.8.1998. It was pointed out that the appellant had acted bona fide and in good faith, she had good grounds for setting aside the abatement order. She averred that impugned order dated 4.7.1998 is illegal and without jurisdiction and her application dated 17.8.1998 may be considered as an application for review.

5. Appellants hotly contested these applications. It was objected that both the applications were barred by time. Again judgment dated 4.7.1998 had attained finality. The above said applications were dismissed by the first appellate court vide order dated 5.11.2004 Aggrieved by that order, the present appeal has been preferred.

6. I have heard counsel for the parties. Learned Counsel for the appellant submitted that previous counsel of the appellant had committed a mistake, and he explained that he was engaged recently. He, however, argued that the above said delay on the part of the appellant and the mistake committed by his predecessor is liable to be condoned in view of the authorities cited by him. He cited the following authorities:

1. Harjeet Singh v. Raj Kishore and Ors. .

2. Piara Singh and Ors. v. Natha Singh and Ors. 1991 Supp (2) Supreme Court Cases 289.

3. Mithailal Dalsangar and Ors. v. Annabai Devram Kini and Ors. .

4. State of Haryana and Ors. v. Gurcharan Singh and Ors. (2004) 12 Supreme Court Cases 540.

5. Bhavsingh (dead) by LRs v. Keshar Singh and Ors. .

6. Sardar Amarjit Singh Kalra v. Pramod Gupta .

7. Beharilal and Anr. v. Bhuri Devi (Smt.) and Ors. .

8. Nagina Singh and Ors. v. Naga Singh and Ors. .

9. Bhagwan Swaroop and Ors. v. Mool Chand and Ors. .

7. On the other hand, respondent relied upon an authority reported in Dhurandhar Prasad Singh v. Jai Prakash University and Ors. .

8. Although the learned Counsel for the appellant cited the above authorities, yet, he failed to elaborate as to which authority applies to the facts of the present case. I have perused all the authorities. All the authorities deal with condensation of delay in moving the application under Order 22 CPC. For example, the case of Bhagwan Swaroop and Ors. v. Mool Chand and Ors. (supra) reveals that delay in filing the application under Order 22 Rule 4 CPC was condoned even though the application was submitted after three/four years. That was a partition suit and the facts were wee bit different.

9. Now I turn to the facts of the instant case, the facts of this case are peculiar and have no parallels. The respondents themselves came to know that Smt. Kamla Rani had left behind her, her husband Shri Sita Ram and her son Master Gaurav aged about 13 years as back as on 23.09.1991. The facts were clear, specific and unambiguous. Instead of moving an application for impleading legal representatives, the appellant moved another application dated 20.2.1992 resulting in deletion of the name of Smt. Kamla Rani. All the facts were in the knowledge of the appellant. It is very easy to cull out the intention of the appellant from the given facts. The appellant was stated to be in unauthorised occupants of the land in dispute, wanted to delay the case on one pretext because every delay was so much more grist to her mills. The appellant herself missed the bus and for that, remedy cannot be made available after a lapse of 13-14 years. Before me, there was no challenge that the whole of the appeal does not abate. This question was very well dealt with by the Learned Trial Judge. Learned Trial Judge also correctly held that no time can be given to bring on record the son of the deceased at this late stage. It is well said, ‘defer no time; delays have dangerous ends.’ Again law does not help the sleeping man ignorance of law is not excuse in any country. If it were, the laws would lose their effect, because it can always be pretended.

12. The appeal is meritless and the same is therefore dismissed. The applications also stand dismissed. Copy of this order be sent to the trial court along with LCR.

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