Union Of India (Uoi) vs Ram Charan And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 April, 1963

Coram: J.R. Mudholkar, K. Subba Rao, Raghubar Dayal

In this case, the Supreme Court of India considered the appeal filed by the Union of India against the orders of the Punjab High Court, the judgment being reported on 30 April 1963. The judgment was authored by Justice Raghubar Dayal, while Judges J. R. Mudholkar and K. Subba Rao sat on the bench. The facts giving rise to the appeal were that Ram Charan obtained a decree for money against the Union of India on 6 January 1955, and the Union of India promptly filed an appeal on 6 April 1955 before the Punjab High Court. The sole respondent, Ram Charan, filed a cross‑objection on 31 July 1955, and on 6 February 1956 the High Court issued an order relating to a surety bond, with Ram Charan being represented at those proceedings. Ram Charan subsequently died on 21 July 1957.

On 18 March 1958, an application was presented to the High Court on behalf of the Union of India under Order XXII, rule 4, read with section 151 of the Code of Civil Procedure, stating that Ram Charan had died on 21 July 1957, that the Divisional Engineer of Telegraphs, Ambala Cantonment, learned of the death on 3 February 1958, and that the deceased left an adopted son and a widow as his legal representatives; the application prayed that these representatives be recorded in place of the deceased respondent. The supporting affidavit, sworn by the Divisional Engineer himself, contained no additional information and was solemnly affirmed as true to his belief. Subsequently, on 13 May 1958, the widow of Ram Charan filed a separate application asserting that she alone was the legal representative under a will and that the alleged adopted son should not be recognized as such. The Union of India’s application to bring the legal representatives on record was heard on the following day, 14 May 1958, and the Court ordered that the matter be considered together with the pending appeal because there was a dispute as to whether the limitation period under Order XXII of the Code began on the date of death or on the date of knowledge of the death. Later, on an application by the legal representatives, the Court directed that the question of abatement be decided first and that the printing of the record be taken on hand thereafter. The application for substitution of legal representatives was finally decided on 16 February 1960, where the Court dismissed it, holding that the Union of India had failed to demonstrate any sufficient cause that prevented it from continuing the appeal. Consequently, on 26 February 1960, the High Court dismissed the appeal itself on the ground of abatement. Finally, on 14 May 1960, an application for leave to appeal to the Supreme Court was presented before the High Court, the heading of which indicated a request for permission to approach this Court against the judgment dated 16 February 1960 and 26 February 1960 in Civil Miscellaneous No. 1212‑C of 1959 and Regular First Appeal No. 44 of 1955.

The Court observed that the petition filed by the respondents was identified as an application for leave to appeal to the Supreme Court against the judgment dated 16 February 1960, which had been rendered in Civil Miscellaneous No 1212‑C of 1959 and which also related to Regular First Appeal No 44 of 1955. The High Court rejected that application on 17 May 1960. Following that rejection, the respondents filed an application for special leave to appeal before this Court. In that special leave petition, the respondents prayed for permission to appeal the judgment of the Punjab High Court in Regular First Appeal No 44 of 1955 and the judgment in Civil Miscellaneous No 1212‑C of 1959, both of which were dated 16 February 1960 and 26 February 1960 respectively. The order granting special leave expressly stated: “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 then raised on the ground that the appellant had not applied to the High Court for leave to appeal against the order dated 26 February 1960 in the Regular First Appeal, and that, consequently, that order had become final. The objection further contended that, in view of Order XIII, rule 2 of the Supreme Court Rules 1950, special leave could not be entertained because the High Court had not first been moved and had not refused to grant a certificate. The rule quoted in support of the objection read: “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.” The Court found no merit in that objection and dismissed it. The Court examined the contents of the special leave application and noted that, although the petition described itself as being against the judgment in the miscellaneous case and not against the order in the regular appeal, paragraph 1 of the petition expressly stated that the regular first appeal had been ordered to have abated. Paragraph 3 of the petition further asserted that the case was suitable for the issuance of the necessary certificate to permit an appeal against the judgment rendered in Regular First Appeal No 44 of 1955. Both of those statements were directed to the proceedings in the regular first appeal and not to the order concerning the miscellaneous application for substitution. Ground 2 of the petition also referred to those proceedings. Consequently, the Court concluded that the petition was, in substance, an application for leave to appeal against both the order of 16 February 1960 and the order of 26 February 1960. The Court observed that the Punjab High Court appeared to have interpreted the petition in the same way. The High Court’s order dated 17 May 1960 read: “The appeal was decided as having abated because the appellant failed to show sufficient cause for not bringing the legal representatives of the deceased respondent within time.” To clarify the actual dispute between the parties before this Court, the judgment proceeded to summarize briefly the reasons for the High Court’s order dated 16 February 1960. The High Court, in its factual narration, had indicated that the application dated 17 March 1958 had been filed under the provisions of Order XXII, rules 4 and 9, read with section 151 of the Code of Civil Procedure. The Court noted that the printed version of the application did not claim to be filed under rule 9 of Order XXII, CPC, and that it contained no language stating that the appeal had abated or that the abatement should be set aside. The High Court further observed that the application incorrectly identified the reason for delay as the Divisional Engineer, Telegraphs, learning of the deceased’s death on 3 February 1958, even though the application itself merely stated that fact without providing any explanatory reason. The order also mentioned that the Union of India had presented an application on 14 May, claiming that the period between 3 February and 17 March 1958 had been spent gathering information about the legal representatives of the deceased, although that particular application was not reproduced in the record.

The Court noted that Order XXII rules four and nine, read together with section 151 of the Code of Civil Procedure, were the provisions in issue. It observed that the application placed in the record was not presented as being made under rule nine of Order XXII. Moreover, the application contained no language indicating that the appeal had abated or that the abatement should be set aside. The Court said that this omission gave rise to a further mistake, namely the claim that the reason for the delay recorded in the application was that the Divisional Engineer, Telegraphs, had only learned of Ram Charan’s death on 3 February 1958; the application itself made no such statement of reason. The record merely stated as a fact that the Engineer became aware of the death on that date. The order further mentioned that the Union of India had filed an application on 14 May, in which it was alleged that the period between 3 February and 17 March 1958 had been spent gathering information about the legal representatives of the deceased. The Court pointed out that this latter application does not appear in the paper book. The High Court, the Court said, had relied on a full‑bench decision of its own jurisdiction reported in Firm Dittu Ram Eyedan v. Om Press Co. Ltd., ((1960) 1 J.L.R. Punj 935). That decision held that mere ignorance of the death of a defendant was not a sufficient ground to set aside an abatement when an application to bring the deceased’s legal representatives on record was filed after the limitation period had expired, because the law imposes a duty on the applicant to show that there was no lack of care. The High Court therefore concluded that the Union of India, in neither its application of 17 March 1958 nor its subsequent application of 14 May 1958, asserted that the Government had exercised due diligence in keeping itself informed of Ram Charan’s whereabouts. The High Court further observed that it would not have been difficult for the Government to learn of Ram Charan’s death, since he resided in Ambala Cantonment, the very place to which the appeal related. The Court then listed the contentions that the appellant advanced before this Court: first, that simple ignorance of the respondent’s death should be regarded as sufficient cause for the appellant’s failure to implead the legal representatives within the prescribed time, unless the appellant’s own negligence or some act or omission caused the delay; second, that once the respondent had been served in the first appeal, the appellant owed no duty to make periodic inquiries into the respondent’s health; third, that the term “sufficient cause” ought to be interpreted liberally to further the cause of justice; and fourth, that the Court possessed an inherent power to add legal representatives in order to achieve complete justice for the party.

The Court observed that the High Court had applied the Full Bench decision of its own jurisdiction to the present facts incorrectly. It further stated that the fourth submission advanced by the appellant possessed no legal merit. Accordingly, the Court held that it could not resort to the inherent powers conferred by section 151 of the Code of Civil Procedure for the purpose of bringing the legal representatives of a deceased respondent into the proceedings when the suit had already abated because the appellant failed to take the required steps within the stipulated time. Moreover, the Court emphasized that an application seeking to set aside such abatement could not be entertained where the appellant had not satisfied the Court that there existed sufficient cause for his failure to implead the deceased party’s legal representatives promptly and for not moving to set aside the abatement within the prescribed period.

The Court further explained that the term “sufficient cause” could not be interpreted liberally merely because the defaulting party was the Government or because the question related to the addition of a deceased respondent’s legal representatives. It reiterated that the provisions of the Code are intended to further the cause of justice, and while the Court should not adopt an unduly strict approach in assessing the appellant’s proof of cause—since the issue does not pertain to the substantive merits of the dispute—it must nonetheless examine the evidence with care. The Court clarified that a relaxed standard does not permit the acceptance of any explanation offered by the appellant to excuse his default. Instead, the Court is justified in scrutinising the merits of the evidence presented to establish why the appellant failed to apply within time for either the impleading of the deceased’s representatives or the setting aside of the abatement. Finally, the Court noted that although the appellant bears no explicit duty to make periodic inquiries into the health or existence of the opposite party, the mere fact that he learned of the respondent’s death at a later stage does not, by itself, justify an application to overturn the abatement. Under Rule 9 of Order XXII of the Code, the plaintiff must demonstrate that a sufficient cause prevented him from continuing the suit, and a bare allegation of not knowing the death of the opposite party is inadequate without a detailed explanation of the circumstances that led to such ignorance.

The Court observed that when a defendant dies, the plaintiff must prove, within a reasonable time, that the death prevented the filing of an application to bring the deceased’s legal representatives into the suit, and must establish those reasons to the Court’s satisfaction, especially when the legal representatives contest the correctness of the reasons because they have acquired a valuable right through the abatement of the suit. The Court further stated that it was unnecessary to examine whether the High Court had correctly applied its earlier Full Bench decision, because the principal issue to be decided on this appeal was the first contention raised by the appellant. According to Rules 3 and 4 of Order XXII of the Code of Civil Procedure, specific procedures are prescribed for situations involving the death of one of several plaintiffs where the right to sue does not survive solely with the remaining plaintiffs, for a sole plaintiff whose right to sue does survive, and for the death of one of several defendants or a sole defendant under similar circumstances. Those rules require that an application be filed to make the legal representatives of the deceased plaintiff or defendant parties to the suit; the rules do not dictate who must present that application. Ordinarily the plaintiff would file the application because, upon abatement, the defendant would otherwise gain, but the filing of an application remains a mandatory step. If no such application is filed within the period prescribed by law, the suit abates with respect to the deceased plaintiff or, as the case may be, with respect to the deceased defendant. The impact of such abatement on the remaining plaintiffs’ suit or on the suit against the surviving defendants depends on additional considerations, as explained by this Court in State of Punjab v. Nathu Ram and Jhanda Singh v. Gurmukh Singh, Civil Appeal No. 344 of 1956 decided on 10 April 1962. However, that particular question did not arise here because the sole respondent had died. The Court also noted that, in view of Rule 11 of Order XXII, the terms “plaintiff”, “defendant” and “suit” are to be read as inclusive of “appellant”, “respondent” and “appeal” respectively. The Court explained that the abatement of a suit against a defendant bars the institution of any fresh suit on the same cause of action, as Sub‑rule (1) of Rule 9 expressly prohibits a new suit. Consequently, the only remedy available to the plaintiff or to a person claiming to be the legal representative of a deceased plaintiff is to obtain a setting aside of the abatement, which can be achieved only by filing an application for that purpose within the stipulated time. The Court will set aside the abatement only if it is proved that the applicant was prevented by a sufficient cause from continuing the suit. This requires the applicant to allege and prove facts that, in the Court’s view, constitute a sufficient reason for failing to bring the deceased’s legal representatives on record within the prescribed period. If no such facts are alleged or proved, the Court cannot set aside the abatement.

In this matter, the Court explained that the abatement of a suit could be set aside only when the particular facts of the case make it unmistakably clear that the plaintiff had a sufficient reason for failing to continue the suit within the prescribed limitation period. The Court emphasized that such circumstances would be extremely rare. Consequently, a mere declaration by the plaintiff that he learned of the death of the opposite party more than three months after the death would not normally be enough for the Court to conclude that the plaintiff possessed sufficient cause for not impleading the deceased party’s legal representatives in time. The Court observed that, had the simple fact of delayed knowledge been deemed adequate, the legislature would have expressed the law differently and would not have required the plaintiff to demonstrate that he was prevented by any sufficient cause from proceeding with the suit. The limitation period for filing an application to set aside the abatement is three months, as provided by Article 171 of the First Schedule to the Limitation Act. The Court noted that this three‑month period is deliberately generous, reflecting the legislature’s expectation that a plaintiff would ordinarily become aware of the death of the defendant and of the defendant’s legal representatives within that time. The legislature presumed that the interval between successive hearings would normally be well within three months, and that the absence of a defendant at a hearing could be explained by counsel, a relative, or the defendant’s death, prompting the plaintiff to inquire about the reason for the absence. Moreover, the legislature appeared to recognize that there might be situations in which the plaintiff does not discover the defendant’s death as soon as ordinarily expected. To address such possibilities, the law provides an additional two‑month period under Article 176 for filing an application to set aside the abatement, and it also applies the provisions of Section 5 of the Limitation Act to such applications. Thus, the plaintiff is afforded ample time to seek a setting aside of the abatement, and even when the total delay exceeds five months, the Court may deem the delay justified if the specific circumstances of the case support it. The Court cautioned that it would be unproductive to try to enumerate exhaustively the factors that would constitute “sufficient cause” for setting aside an abatement or for a plaintiff’s failure to bring the deceased defendant’s legal representatives on record, or for missing the prescribed time limit for an application. However, the Court clarified that any delay in making such an application should not arise from the plaintiff’s own negligence in failing to take steps that he could and should have taken. Determining which steps are necessary will depend on the facts and circumstances of each individual case.

The Court observed that the determination of what constitutes “sufficient cause” must depend on the facts and circumstances of each individual case, and that the Court must evaluate those facts without being constrained by any illustrative examples. It emphasized that the judiciary must exercise its discretion soundly and in the interests of justice, rather than being limited by any prescribed list of circumstances.

The Court noted that it would be pointless to cite the authorities relied upon by the appellant to support the contention that the appellant’s ignorance of the respondent’s death was, by itself, sufficient cause for allowing an application to set aside the abatement. The Court explained that merely stating ignorance of the respondent’s death could not, on its own, satisfy the requirement of sufficient cause. The appellant, the Court said, bore the burden of explaining why the appellant did not know of the death earlier, or why the appellant could not have known despite any reasonable efforts to ascertain the respondent’s status. The Court further observed that the appellant’s explanations could be challenged by the opposite party, and that the Court would have to assess whether those explanations were adequately proven and whether they amounted to sufficient cause for the delay in bringing the legal representatives of the deceased respondent on the record.

In the facts of the present case, the Court found that the appellant adopted an incorrect approach from the outset. The appellant’s application dated 17 March disclosed that Ram Charan had died on 21 July 1957 and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, had learned of the death on 3 February 1958. The Court pointed out that Shri Bhatia’s affidavit contained no verification based on his personal knowledge, and it was difficult to understand why he did not affirm the statement as true to his knowledge rather than merely as a belief, given that he became aware of the death on the stated date. The Court also observed that, according to the High Court’s judgment, no additional information was presented in the appellant’s subsequent application dated 13 May 1958, and that such information was not on the record. Moreover, when the application was heard before the learned Single Judge, the appellant argued that the limitation period for such an application should commence from the date the appellant became aware of the respondent’s death, rather than from the date of death itself. The appellant further contended that no abatement had occurred because of this alleged timing, a position the Court regarded as fundamentally untenable.

The Court explained that the period of limitation began on 3 February 1958, which was the date on which the appellant’s officer became aware of the respondent’s death, and that the petition was filed within three months of that date. The Court observed that, because of the appellant’s approach, the petition filed on 17 March 1958 was presented only under rule 4 of Order XXII and did not invoke rule 9 of the same Order, nor did it contain a specific prayer to set aside the abatement.

The Court then stated that the limitation for filing an application to set aside the abatement of a suit commences at the time of the deceased respondent’s death. It pointed out that Article 171 of the First Schedule to the Limitation Act expressly provides this rule and that the statute does not allow the limitation period to start from the date the appellant learned of the death. Accordingly, the Court described the appellant’s position as wholly unjustified and indicative of a complete lack of understanding of the applicable provision of the Limitation Act.

In view of these observations, the Court concluded that the High Court could not be said to have erred in finding that the appellant had failed to establish sufficient grounds for either bringing the representatives of the deceased respondent on record within the prescribed time or for filing a timely petition to set aside the abatement. The Court therefore held that the appeal had no merit, ordered its dismissal with costs, and formally recorded that the appeal was dismissed.