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Sec.5 of Limitation Act – Or.22, rule 3 and Sec.151 CPC – after 7 years of death , and after dismissal of second appeal , these petitions have come with out furnishing sufficient reasons – High court dismissed all and Apex court held that Her plea that she was told by her husband that counsel would inform about the hearing of the application, cannot be a ground to entertain the application for condonation of delay of more than seven years for preferring the petition for substitution. and her plea that she is only person to be substituted due to family settlement not tenable as earlier it was not brought before the court when substitute petition was filed by proforma defendantsand which was later withdraw as not pressed = KARAM KAUR … APPELLANT VERSUS JALANDHAR IMPROVEMENT TRUST & ORS. … RESPONDENTS =2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41486

 Sec.5 of Limitation Act – Or.22, rule 3 and Sec.151 CPC – after 7 years of death , and after dismissal of second appeal , these petitions have come with out furnishing sufficient reasons – High court dismissed all and Apex court held that Her plea that she was told by her husband that counsel  would inform about  the  hearing  of  the  application,  cannot  be  a  ground  to entertain the application for condonation of delay of more than seven  years for preferring the petition for substitution. and her plea that she is only person to be substituted due to family settlement not tenable as earlier it was not brought before the court when substitute petition was filed by proforma defendants  and which was later withdraw as not pressed =

 

Admittedly, Ramesh Chander – the original plaintiff, appellant  before

the Second Appellate Court, died on 14th December, 2003;  

the  appellant  is

the widow of Ramesh Chander and she had knowledge of  the  pendency  of  the

second appeal. 

Her plea that she was told by her husband that counsel  would

inform about  the  hearing  of  the  application,  cannot  be  a  ground  to

entertain the application for condonation of delay of more than seven  years

for preferring the petition for substitution.

A  petition  for  substitution

was filed by respondent Nos.2 and  3  before  the  Second  Appellate  Court.

Respondent Nos.2 and 3 had the knowledge of  the  death  of  Ramesh  Chander

and, therefore, they  filed  petition  for  substitution  vide  CM  No.4841-

C/2010. 

However, they withdrew the aforesaid  application  for  substitution

which was followed by  petition  for  substitution  petition  filed  by  the

appellant-Karam Kaur. 

In the petition for substitution filed  on  behalf  of

respondent Nos.2 and  3,  it  was  not  stated  that  vide  deed  of  family

settlement dated 21st January, 2010 executed between the LRs of Nasib  Chand

(including respondent Nos.2 to 5 to the appeal) and  other  legal  heirs  of

Ramesh Chander the right to sue survived only on the  appellant-Karam  Kaur.

Apart from the fact that the aforesaid family settlement was not brought  on

record by respondent Nos.2 and 3 before the  Second  Appellate  Court  while

the petition for substitution filed, so called family settlement dated  21st

January, 2010 cannot be relied upon to exclude the  other  legal  heirs  who

had a right to be substituted due to the death of  the  original  plaintiff-

Ramesh Chander.

 

15.   We find no merit in  these  appeals.  The  appeals  are,  accordingly,

dismissed. No costs.

CHANDRAMAULI KR. PRASAD, SUDHANSU JYOTI MUKHOPADHAYA

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 4915-4918 OF 2014
(arising out of SLP (C) Nos. 25950-25953 of 2011)

KARAM KAUR … APPELLANT

VERSUS

JALANDHAR IMPROVEMENT TRUST & ORS. … RESPONDENTS

 

J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
Leave granted.

2. These appeals are directed against the judgment dated 8th July, 2011
passed by the High Court of Punjab & Haryana at Chandigarh in Civil Misc.
Nos.11669-C to 11672-C of 2010 in R.S.A. No.1908 of 1995. By the impugned
judgment, the High Court rejected the following Petitions:

(i) Civil Misc. Application under Section 151 C.P.C. for
setting aside order dated 14th May, 2010 dismissing the
appeal for non-prosecution;

(ii) Civil Misc. Petition under Section 5 of Limitation Act for
condonation of delay in bringing LRs on record and for
setting aside order dismissing appeal in default; and

(iii) Civil Misc. Application under Order 22 Rule 3 C.P.C. for
bringing LRs. of deceased appellant on record.

 
However, the High Court allowed the other applications under Sections
151 C.P.C to place on record the copies of judgment and decree dated 20th
January, 2004 passed in RSA No.1822 of 2003 – Ajinder Kaur vs. Jalandhar
Improvement Trust and judgment dated 15th March, 2000 in RSA No.3673/2000 –
Jalandhar Improvement Trust vs. Harbhajan Kaur and others.

3. The case of the applicant, wife of original plaintiff – Ramesh
Chander is that one Nasib Chand father of Ramesh Chander and respondent
Nos.3 to 5 and husband of respondent No.2 was the owner of land measuring
28 Kanals 5 marlas situated at Basti Sheikh, Jalandhar, which was acquired
by the respondent – Jalandhar Improvement Trust (hereinafter referred to as
the “Trust”) for development of scheme known as “13.37 acres scheme”. Nasib
Chand died on 8th May, 1987 leaving behind Ramesh Chander-original
plaintiff and respondent Nos.2 to 5 as his heirs. The original plaintiff-
Ramesh Chander made many requests to the respondent-Trust for allotting him
a plot in lieu of the acquired land. Further case of the appellant is that
the respondent-Trust ultimately allotted the disputed plot in a scheme
known as “55 acres development scheme” to him. Thereafter, Ramesh Chander
requested the respondent-Trust to accept instalment of Rs. 10,000/- and
deliver vacant possession of the plot but to no effect. He served notice on
the Trust also for admitting his claim and to hand over his possession of
the allotted plot to him, but to no avail.

4. Ramesh Chander, therefore, filed Civil Suit No.123/1988 on 2nd March,
1988 for declaration that he was entitled to deposit Rs.10,000/- towards
first instalment of plot No.456 and balance price thereof, allotted to him
in “55 acres development scheme” and to its vacant possession and for
mandatory injunction, directing respondent No.1 – Trust to receive the
earnest money from him and to deliver its possession.

5. The defendant-respondent No.1 appeared and filed a written statement.
The suit was decreed by Sub-Judge by judgment and decree on 10th June,
1988. Being aggrieved, the defendant-respondent filed an appeal, which was
allowed and the case was remanded back to the Trial Court.

6. After remand, a fresh written statement was filed by the Trust, in
which the Trust did not deny the factum that the plaintiff was a Local
Displaced Person but disputed legality of allotment regarding Plot No.456
in 55 acre scheme on the ground that the Chairman had no right to allot any
plot, and Plot No.456 was wrongly allotted. The Trial Court on hearing the
parties decreed the suit in favour of plaintiff-Ramesh Chander and against
the respondent-Trust holding as under:

“Since plot No.456 in 55 acre scheme has been allotted to the
plaintiff, as Local Displaced Person on account of acquisition
of the land of his father by the deft-trust and even possession
of that plot is with him, as deposed by him attorney Prem Pal
PW1, he is entitled to retain the allotment Prem Pal PW1, he is
entitled to retain the allotment and its possession. The
defendant-Trust is legally bound to honour that allotment and
accept the price of the same from him as per the trust rules by
instalments. Plaintiff has no doubt claimed possession of the
plot in the suit but it has come in the evidence of Prem Pal (PW-
1) that possession is with him plaintiff of the allotted plot
and his this part of statement has not been controverted by Om
Parkash (DW-1) official of the Trust.”

 
7. On appeal preferred by the respondent-Trust, the First Appellate
Court by judgment and decree dated 18th May, 1995 reversed the judgment of
the Trial Court. The First Appellate Court held that the allotment letter
issued by the then Chairman of the Trust fell foul of the relevant rules.
The First Appellate Court further observed:

“When a certain act of public functionary is ultra vires of the
provisions of stature or acted beyond his power or in colourable
exercise of power, the aggrieved department can get rid of the
said impugned order and challenge the same, and no plea of
estoppels against the statute can be raised by the opposite to
party taking illegal advantage of impugned action of the public
authority. In such scenario no plea can be entertained that the
Government has not withdrawn power of the Chairman for the
allotment of plots to Local Displaced Person when the power of
allotment has never been vested in the Chairman, but the Trust
alone.”

 

Original plaintiff-Ramesh Chander then filed second appeal R.S.A.
No.1908 of 1995 against the judgment and decree dated 18th May, 1995
passed by the First Appellate Court. The second appeal was admitted on 21st
August, 1995 and operation of the judgment dated 18th May, 1995 was stayed.
The second appeal remained pending.

8. During the pendency of the said appeal, Ramesh Chander died on 14th
December, 2003 leaving behind his widow(applicant-herein) along with two
sons and three daughters. However, no petition for substitution was filed
for years. After six and half years of the death of the original plaintiff-
Ramesh Chander, CM No.4841-C of 2010 was filed in the second appeal on 22nd
April, 2010 on behalf of the respondent Nos.2 and 3 before the High Court
for bringing on record the following legal heirs of the deceased- Ramesh
Chander:

“i) Smt. Karam Kaur widow of Sh. Ramesh Chander.

ii) Harish Chander son of Sh. Ramesh Chander.

iii) Raman Kumar son of Sh. Ramesh Chander all residents of
Buta Mandi, Jalandhar, Tehsil and District Jalandhar.

iv) Smt. Nirmla Devi D/o Sh. Ramesh Chander, wife of Sh.
Rajesh Kumar, resident of 182-F, Rishi Nagar, Ludhiana,
Tehsil and District Ludhiana.

v) Smt. Rita Kumari, D/o Sh. Ramesh Chander w/o Sh. Surinder
Pal, resident of H.No.588, New Arya Nagar, Kartarpur,
District Jalandhar.

vi) Smt. Sita Devi d/o Sh. Ramesh Chander w/o Sh. Rajinder
Kumar, resident of H.No.702, Phase VII, S.A.S. Nagar,
Mohali, District Mohali.”

 

The aforesaid application was supported by an affidavit of Jagdish
Chander, son of Nasib Chand i.e. respondent No.3 in the appeal. In the
said petition following order was passed on 14th May, 2010:

“This is an application under Order 22 Rule 3 read with
Section 151 of the Code of Civil Procedure for bringing on
record the legal heirs of the appellant, who is stated to have
died on 14.12.2003.

This application has been moved by respondents No.1 and
No.3 who are proforma respondents in this appeal and no relief
has been claimed against them whereas the LRs of Ramesh Chander-
apepllant have not chosen to come forward to pursue this appeal.

Faced with this situation, learned counsel for the
applicant (i.e. Respondents No.2 and 3) prays for withdrawal of
the aforesaid application.

Ordered accordingly.”

 

9. The application for bringing on record the LRs of the original
plaintiff-appellant before the Second Appellate Court at the behest of
respondent Nos.2 and 3, having withdrawn was dismissed as withdrawn. Since
the legal representatives of the original plaintiff-appellant in
R.S.A.No.1908 of 1995 had chosen not to come forward to pursue the appeal,
the second appeal was dismissed for non-prosecution.

10. After the dismissal of the petition for substitution (CM No.4841-
C/2010) due to withdrawal of such application by respondent Nos.2 and 3,
the applicant-Karam Kaur filed Civil Misc. No.11669-C/2010 for setting
aside the order dated 14th May, 2010 dismissing the appeal for non-
prosecution claiming herself to be the sole legal heir in whom the right to
sue survived on the basis of a Deed of Family Settlement dated 21st
January, 2010 executed between the LRs. of Nasib Chand including respondent
Nos.2 to 5 in this appeal and other legal heirs of Ramesh Chander. The
aforesaid Deed of Family Settlement dated 21st January, 2010 was also
placed on record in CM No.11670-C of 2010 for bringing her on record LRs of
Ramesh Chander. An application under Section 5 of the Limitation Act was
also filed for condonation of delay in filing the restoration application
and delay in bringing on record the LRs. The delay was calculated taking
the date of knowledge from 1st April, 2010 on the basis of advice of Shri
Vijay Rana, Advocate for respondent Nos.2 and 3. The applicant also filed
an application, CM No.13869-C of 2010 on Ist December, 2010 for condoning
the delay in bringing on record the LRs of the Ramesh Chander and for
setting aside the order dismissing the appeal in default. The aforesaid
applications were rejected by the impugned common order dated 8th July,
2011 passed by the High Court.

11. Learned counsel for the appellant took a similar plea as was taken
before the High Court that the appellant had no idea about dismissal of the
appeal for non-prosecution.

12. The appellant has also taken plea that she is an illiterate lady and
was informed by her husband that his appeal was not likely to be taken up
for the next 20 years and their counsel would intimate the date whenever it
is listed. She was not aware that the LRs were required to be brought on
record after the death of her husband.

13. Having heard the learned counsel for the parties and on perusing the
record, we find that it was not a fit case to condone delay, bring the LRs
on record and to set aside the order of abatement, High Court rightly
rejected all the applications.

14. Admittedly, Ramesh Chander – the original plaintiff, appellant before
the Second Appellate Court, died on 14th December, 2003; the appellant is
the widow of Ramesh Chander and she had knowledge of the pendency of the
second appeal. Her plea that she was told by her husband that counsel would
inform about the hearing of the application, cannot be a ground to
entertain the application for condonation of delay of more than seven years
for preferring the petition for substitution. A petition for substitution
was filed by respondent Nos.2 and 3 before the Second Appellate Court.
Respondent Nos.2 and 3 had the knowledge of the death of Ramesh Chander
and, therefore, they filed petition for substitution vide CM No.4841-
C/2010. However, they withdrew the aforesaid application for substitution
which was followed by petition for substitution petition filed by the
appellant-Karam Kaur. In the petition for substitution filed on behalf of
respondent Nos.2 and 3, it was not stated that vide deed of family
settlement dated 21st January, 2010 executed between the LRs of Nasib Chand
(including respondent Nos.2 to 5 to the appeal) and other legal heirs of
Ramesh Chander the right to sue survived only on the appellant-Karam Kaur.
Apart from the fact that the aforesaid family settlement was not brought on
record by respondent Nos.2 and 3 before the Second Appellate Court while
the petition for substitution filed, so called family settlement dated 21st
January, 2010 cannot be relied upon to exclude the other legal heirs who
had a right to be substituted due to the death of the original plaintiff-
Ramesh Chander.

15. We find no merit in these appeals. The appeals are, accordingly,
dismissed. No costs.

…………..……………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)

 
………………..………………………………….J.
NEW DELHI, (KURIAN JOSEPH)
APRIL 28, 2014.

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