JUDGMENT
C.K. Mahajan, J.
1. This is an application under Section 5 of
the Limitation Act for condensation of delay in filing
the application under Order 22 Rule 4 CPC.
2. Briefly the facts are that the defendant
died on 9.4.2000 which came to the knowledge of
plaintiff on 11.7.2000 during the course of hearing of
a complaint under Section 138 of the Negotiable
Instruments Act.
3. It is stated that the earlier counsel of the
plaintiff did not take timely steps for impleading the
legal representative of the defendant. It was only in
October 2000 that the plaintiff was asked by his
earlier counsel to sign two applications, one under
Section 5 of the Limitation Act and the other under
Order 22 Rule 4 CPC for bringing on record the legal
representative of the defendant. The said
applications were got attested on 3.11.2000 and were
stated to have been filed on 6.11.2000 vide diary
No. 76832 as would be seen from Annexure P-3 to the
present application. However, as the same had been
stated to be misplaced by the registry, the same were
again filed on 19.1.2001. On 26.9.2001, these two
applications were withdrawn by the plaintiff on the
ground that the same had not been properly drafted and
contained incorrect statement of facts. It is also
stated that the earlier counsel did not take interest
in the case. The plaintiff also reminded the earlier
counsel to take steps in this regard. Furthermore,
the brother of the plaintiff was also hospitalised
since 16.9.2001 and therefore also the plaintiff could
not pursue the matter vigorously with his earlier
counsel. It is further stated that the delay in
filing the application was also because when the
plaintiff heard about the death of the defendant, he
wanted to verify the same since the defendant was a
tantric and was capable of faking his own death and
tendering a death certificate in support thereof and
escape his liability.
4. It is further submitted that delay in filing
the application is neither deliberate nor intentional
but due to the aforesaid reasons.
5. The application is opposed by the legal
representative of the defendant. It is stated that
the plaintiff was aware of the death of the defendant,
initially on 9.4.2002 and then on 11.7.2002 in a
proceeding under Section 138 of the Negotiable
Instruments Act. It is also stated that even if the
applications were filed on 6.11.2000, the same are
time barred from the date of knowledge of the death of
the deceased. The period of 90 days expired on
10.10.2000.
6. Learned counsel for the defendant places
reliance on a judgment of the Supreme Court in Union
of India v. Ram Charam (deceased) through his legal
Representatives wherein it was held as
under:-
“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…..This, however, does not mean
that the Court should readily accept
whatever the appellant alleges to explain
away his default. It has to scrutinise 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. It is true that it is no duty
of the appellant to make regular enquiries
from time to time about the health or
existence of the respondent, 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 Order 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, specially when
challenged by the legal representatives of
the deceased who have secured a valuable
right on the abatement of the suit…..”
7. I have heard learned counsel for the parties
and also perused the documents placed on record.
8. An application for bringing the legal heirs
of a deceased on record is to be made within 90 days
from the date of death of the deceased or from the
date of knowledge of death of the deceased. In the
present case, the defendant No.1 died on 9.4.2000
which came to the plaintiff’s knowledge on 11.7.2000.
His earlier counsel got the applications signed from
him on 30.10.2000 which were stated to have been filed
on 6.11.2000 and lost by the registry. The same
applications were again filed in January 2001 but were
subsequently withdrawn in September 2001 due to
incorrectness of facts in the said applications.
9. It is settled law that to obtain extension
of time by invoking the provisions of Section 5 of the
Limitation Act, the party seeking extension has to
satisfy the Court that there is sufficient cause for
not approaching the Court within the prescribed time.
Section 5 gives the Court a discretion which is to be
exercised upon established principles.
10. A plethora of decisions lay down that the
expression ‘sufficient cause’ is to be liberally
constructed so as to advance substantial justice when no
negligence or inaction or bonafides is imputable to
the parties. It is adequately elastic to enable the
Court to apply the law in a meaningful manner which
subserves the ends of Justice. It does not mean that
every cause pleaded by the party has to be accepted
where the party is negligent and has slept over its
right for over a year. The Court must not exercise
discretion in such cases.
11. In Collector, Land Acquisition, Anantnag &
Anr. v. Mst. Katiji and Ors. ,
their lordships of the Supreme Court have held that a
justice-oriented approach has to be adopted while
dealing with an application under Section 5 of the
Limitation Act and that “every day’s delay must be
explained” does not mean that technical approach
should be made.
12. Negligence of counsel may be accepted by the
Court as a justification in extending time unless the
error of the counsel was tainted by any mala fide
motive though the mistake of counsel cannot be treated
as sufficient ground to condone delay by way of a rule
of universal application. It is all a question of
determining the bona fides of the litigant.
13. Admittedly, the plaintiff filed the initial
application on 6.11.2000, i.e., after a delay of about
27 days. The application was lost by the Registry.
It was re-filed in January, 2001. There was in fact
delay on the part of the earlier counsel of the
plaintiff in filing the application under Order 22
Rule 4 CPC and the plaintiff cannot be made to suffer
on account of the mistake of his counsel. Moreover,
this is a suit under Order xxxvII for the recovery of
the amount which was taken by the defendant from the
plaintiff by way of cheque.
14. The applicant has been able to make out
sufficient cause for condensation of delay in filing
the application under Order 22 Rule 4 CPC. Equities
are also in favor of the applicant. The explanation
offered is cogent. The negligence, if any, was on the
part of the earlier counsel in not filing the
application on time. The applicant was diligent and
has disclosed sufficient cause to warrant exercise of
discretion by this Court.
15. In these circumstances, it would be
appropriate and in the interest of justice if the
present application is allowed, however, subject to
payment of costs.
16. Accordingly, the present application is
allowed subject to payment of Rs. 5,000/- as costs.
I.A. /2001
Let the application be numbered.
17. By way of this application, the plaintiff
seeks to substitute the legal representative of the
deceased defendant.
18. In reply, the proposed legal representative
states that the application is time barred. However,
it has not been denied that he is the only legal
representative of the deceased defendant.
19. I have heard learned counsel for the
parties.
20. In view of the application for condensation
of delay having been allowed, the present application
is also allowed. The proposed legal representative of
the deceased defendant as mentioned in para 3 of the
application be substituted in place of the defendant.
Application stands disposed of.
S.No. 2809/99
21. Amended memo of parties be filed within four
weeks.
22. Plaintiff is also directed to take steps for
filing appropriate application for issuance of summons
for judgment.
List on 18th December 2002.