Union Of India vs Ram Charan and Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 1115 of 1962

Decision Date: 30 April 1963

Coram: Raghubar Dayal, J.R. Mudholkar

In this case the Supreme Court recorded that the petition was filed by the Union of India against Ram Charan and others, and the judgment was delivered on 30 April 1963. The bench that heard the matter consisted of Justice Raghubar Dayal and Justice J. R. Mudholkar. The official citation of the decision is 1964 AIR 215 and 1964 SCR (3) 467, with the citator reference R 1983 SC1202 (5). The substantive issue concerned the abatement of an appeal because the respondent had died, and an application by the appellant to bring the deceased respondent’s legal representatives on the record. The application was filed after more than three months had elapsed from the date of death, raising the question of what constituted “sufficient cause.” The Court examined the limitation period for an application to set aside the abatement and held that the limitation period began on the date of the respondent’s death, not on the date the appellant learned of the death. The Court also considered the scope of section 151 of the Code of Civil Procedure, as well as the relevant provisions of the India Limitation Act, 1908 (Act 9 of 1908), Article 171, and the Code of Civil Procedure, 1908 (Act 5 of 1908), specifically Order 0.22, section 151, and Rules 4, 9 and 11. The headnote summarised the factual background: Ram Charan obtained a monetary decree against the Union of India, and an appeal against that decree was instituted in the High Court. The respondent died on 21 July 1957. On 18 March 1958 an application was filed in the High Court under Order 0.22, Rule 4 read with section 151 of the Code of Civil Procedure, stating that the respondent had died on 21 July 1957 and that the Divisional Engineer, Telegraphs, had learned of the death on 3 February 1958. The deceased left a widow and an adopted son as his legal representatives, and the application sought to have those representatives brought on record. The High Court dismissed the application, holding that the appellant had not shown sufficient cause for failing to bring the legal representatives on record within the prescribed time, and it also dismissed the appeal. On further appeal before this Court, counsel for the appellant argued that mere ignorance of the respondent’s death should be regarded as sufficient cause unless the appellant was negligent, that no duty arose for the appellant to inquire into the respondent’s health after service, that the expression “sufficient cause” ought to be liberally construed to promote justice, that the Court possessed inherent power to add legal representatives to achieve justice, and that the High Court had misapplied the Full Bench decision in Firm Dittu Ram Eyedan v. Om Press Co. Ltd. The Supreme Court held that the limitation for filing an application to set aside the abatement of an appeal commenced from the date of death of the respondent, not from the date the appellant became aware of the death. The Court further held that it could not invoke its inherent powers under section 151 of the Code of Civil Procedure for the purpose of impleading legal representatives of a deceased respondent.

In this matter the Court observed that when a suit is deemed to have abated because the appellant failed to take timely steps to bring the legal representatives of a deceased respondent onto the court record, the appellant’s subsequent application to set aside such abatement will be rejected if the appellant does not convincingly demonstrate a sufficient cause for the delay. The Court further held that the term “sufficient cause” must not be given a liberal construction merely because the defaulting party is the Government or because the issue concerns the impleading of the deceased respondent’s legal representatives. The Court stressed that it would not simply accept any allegation that seeks to explain away the default. Any delay in filing the application must not be attributable to negligence on the part of the applicant, that is, to a failure to undertake steps that could and should have been taken. Accordingly, the Court must be satisfied that there were legitimate reasons why the applicant could not have known of the death within a reasonable period. A bare statement from the applicant is deemed inadequate. The Court referred to the authorities in Firm Dittu Ram Eyedan v. Om Press Co. Ltd. (1960) 1 I.L.R‑Punjab 935 (Full Bench), State of Punjab v. Nathu Ram [1962] 2 S.C.R. 636 and Jhanda Singh v. Gurmukh Singh, Civil Appeal No. 344 of 1936 dated 10 April 1962, in support of these principles.

The judgment was issued in the civil appellate jurisdiction in Civil Appeal No. 1115 of 1962, arising on special leave from the orders dated 16 February 1960 and 26 February 1960 of the Punjab High Court in Civil Miscellaneous No. 1212‑C of 1959 and from the regular first appeal No. 44 of 1955. Counsel for the appellant were D.R. Prem and P.D. Menon, while counsel for the respondent were Veda Vyasa and K.K. Jain appearing for P.C. Khanna. The judgment was delivered on 30 April 1963 by Justice Raghu Bar Dayal. The factual background set out that Ram Charan obtained a decree for money against the Union of India on 6 January 1955. The Union of India filed an appeal on 6 April 1955 in the High Court. Ram Charan, who was the sole respondent, filed a cross‑objection on 31 July 1955. On 6 February 1956 the High Court issued an order relating to a surety bond, and Ram Charan was represented at those proceedings. Ram Charan died on 21 July 1957. Subsequently, on 18 March 1958 an application was filed before the High Court on behalf of the appellant under Order XXII, rule 4, together with section 151 of the Code of Civil Procedure. The application alleged that Ram Charan had died on 21 July 1957, that the Divisional Engineer, Telegraphs, Ambala Cantonment, became aware of the death on 3 February 1958, and that the deceased left an adopted son and a widow as his legal representatives. The prayer in the application was that these legal representatives be brought onto the record in place of the deceased respondent. The affidavit filed in support of the application was thereafter examined.

In support of the application to bring the legal representatives of the deceased Ram Charan on record, the affidavit filed did not contain any additional information, and the deponent solemnly affirmed that the statements therein were, in his belief, true. The deponent was identified as the Divisional Engineer, Telegraphs, Ambala Cantonment. Subsequently, on 13 May 1958, the widow of Ram Charan filed a claim asserting that she alone was the lawful representative of the deceased pursuant to a will and that the person described as an adopted son was not a legal representative. The application of the appellant seeking to record the legal representatives of the late Ram Charan was heard on 14 May 1958. The Court directed that this application be considered together with the pending appeal because there existed a divergence of opinion within the Court regarding whether the limitation period under Order XXII of the Code of Civil Procedure commenced from the date of death or from the date when knowledge of death was acquired. On a later application filed on behalf of the legal representatives, the Court ordered that the issue of abatement be resolved first and that, thereafter, the preparation of the record be taken up. The application for substitution of parties was finally determined on 16 February 1960, and the Court dismissed it, holding that the Union of India had not demonstrated any sufficient cause that prevented it from pursuing the appeal. Following this, the appeal itself was dismissed as having abated on 26 February 1960. On 14 May 1960, an application for leave to appeal to the Supreme Court was presented before the High Court. The heading of this application indicated that it sought leave to appeal to the Supreme Court from the judgment dated 16 February 1960 in Civil Miscellaneous No. 1212‑C of 1959 and Regular First Appeal No. 44 of 1955. This application was rejected on 17 May 1960. Thereafter, a petition for special leave was filed in this Court, seeking permission to appeal from the Punjab High Court’s judgments in Regular First Appeal No. 44 of 1955 and Civil Miscellaneous No. 1212‑C of 1959 dated 16 February 1960 and 26 February 1960. The order granting special leave 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 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 therefore that order had become final; consequently, special leave could not be sought from this Court under Order XIII, rule 2 of the Supreme Court Rules, 1950, which provides that “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 …”

The Court considered the objection that appellant had not first applied to the High Court for leave to appeal against the 26 February 1960 order, making it final under Order XIII rule 2 of Supreme Court Rules, 1950. The Court found no merit in that objection and rejected it. The application for leave was described as being against the judgment in the miscellaneous case rather than the order in the regular appeal. Nonetheless, paragraph I of the same application stated that the regular first appeal had been ordered to abate. Paragraph 3 further asserted that the matter was suitable for granting the necessary certificate to file an appeal against the judgment rendered in regular first appeal No 44 of 1955. Both of these statements concerned the proceedings related to the regular first appeal and not the order on the miscellaneous application for substitution. Ground 2 of the petition also referred to those same proceedings. Consequently, the petition was in effect an application for leave to appeal against both orders. The High Court appears to have interpreted the petition in that manner. Its order dated 17 May 1960 recorded: “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 understand the real dispute between the parties before this Court, the record briefly summarizes the reasons behind the High Court’s order dated 16 February 1960.

The High Court noted that the application filed on 17 March 1958 was made under Order XXII rules 4 and 9 read with section 151 of the Code. However, the printed application did not claim to be filed under rule 9 of Order XXII of the Code of Civil Procedure. The application contained no wording indicating that the appeal had abated or that the abatement should be set aside. This error seems to have caused a further mistake in stating that the delay explained in the application resulted from the Divisional Engineer, Telegraphs, learning of Ram Charan’s death on 3 February 1958. The application itself only recorded as a matter of fact that the Engineer had become aware of the death on that date, without providing any reason for the delay. The order further states that the Union of India presented an application on 14 May, claiming that the period between 3 February and 17 March 1958 was used to gather information about the legal representatives of the deceased. That application, however, does not appear in the paper book of records. The High Court relied on its own Full Bench decision in Firm Dittu Ram Eyedan v. Om Press Co. Ltd., reported in 1960 L.R. Punj 935, which held that ignorance of the defendant’s death was not sufficient cause to set aside the abatement when the application to bring the deceased’s legal representatives on record was filed after the limitation period had expired.

The Court observed that the law imposed a duty on the party who applied to bring the legal representatives of a deceased respondent onto the record, and that duty required the applicant to demonstrate that there was no lack of care on his part. In the precedent reported in (1) (1960) 1 1. L. R. Punj 935, the High Court held that the Union of India had failed to allege, either in its application dated 17 March 1958 or in the subsequent application dated 14 May 1958, that the Government had acted with diligence or that it had kept itself informed about the whereabouts of Ram Charan, who lived in Ambala Cantonment, the locus of the present appeal. The appellant advanced five principal contentions before this Court. First, it claimed that mere ignorance of the respondent’s death should be treated as a sufficient cause for its inability to implead the legal representatives within the prescribed period, unless the appellant could be shown to have been negligent or to have omitted some act that caused the delay. Second, it argued that once the respondent had been served in the first appeal, the appellant owed no duty to make periodic enquiries about the respondent’s health. Third, it submitted that the expression “sufficient cause” should be given a liberal construction in order to further the cause of justice. Fourth, it contended that the Court possessed an inherent power to add legal representatives so as to achieve full justice for the parties. Fifth, it asserted that the High Court had misapplied the Full Bench decision of its own Court to the facts of the present case.

The Court rejected the fourth contention, holding that it could not invoke its inherent powers under section 151 of the Code of Civil Procedure for the purpose of impleading the legal representatives of a deceased respondent when the suit had abated because the appellant had failed to take the requisite steps within the time allowed. The Court further held that there was no justification for a liberal construction of the term “sufficient cause” merely because the defaulting party was the Government or because the issue concerned the impleading of a deceased respondent’s representatives. While recognising that the procedural provisions of the Code are intended to promote justice, the Court emphasized that, in assessing whether the appellant had established a sufficient cause for not continuing the suit or for not applying to set aside the abatement within the stipulated period, the Court should not adopt an unduly strict standard that would demand the same level of proof required for a finding of liability. Rather, the Court must balance the need for fairness with the requirement that the appellant demonstrate a genuine and reasonable basis for its default, without automatically accepting any explanation offered by the appellant.

In this case the Court observed that the factual issue was already established, and that the question before it did not concern the merits of the dispute between the parties. The Court explained that if the abatement were set aside, the merits could be finally determined, whereas if the abatement were left in force, the appellant would be prevented from proving his claim because of his own culpable negligence or lack of vigilance. Nevertheless, the Court cautioned that it could not simply accept any explanation offered by the appellant for his default. The Court said it must scrutinise the appellant’s contentions and was fully justified in examining the evidence presented to establish the cause of the appellant’s failure to apply, within the prescribed time, for the impleading of the legal representatives of the deceased or for setting aside the abatement.

The Court noted that, as the appellant had argued, there is no duty on a plaintiff to make periodic enquiries about the health or existence of the opposite party. However, the Court held that the mere fact that the appellant learned of the respondent’s death at a late stage could not by itself justify an application for setting aside the abatement. The Court referred to Rule 9 of Order XXII of the Code, which requires the plaintiff to prove that some sufficient cause prevented him from continuing the suit. A bare allegation that the plaintiff was unaware of the opposite party’s death was deemed insufficient. According to the Court, the plaintiff must set out the reasons that, in his view, led to his ignorance of the defendant’s death within a reasonable period, and must satisfy the Court of those reasons, especially when the legal representatives of the deceased challenge the correctness of those reasons and claim the valuable right granted by the abatement.

The Court further stated that it was unnecessary to decide whether the High Court had correctly applied its earlier Full‑Bench decision, because the principal issue on appeal concerned the interpretation of Rules 3 and 4 of Order XXII of the Code of Civil Procedure. Those rules prescribe the procedure to be followed when a plaintiff or a defendant dies, whether there are multiple parties or a sole party, and whether the right to sue survives. The procedure, the Court explained, requires an application to bring the legal representatives of the deceased plaintiff or defendant as a party to the suit. The rules do not specify who must file the application; ordinarily it would be the plaintiff, since the abatement favours the defendant. Nonetheless, an application is a necessary step. If no application is filed within the period prescribed by law, the suit is deemed to abate with respect to the deceased plaintiff or, as the case may be, the deceased defendant. The Court noted that the effect of such an abatement on the suit of surviving plaintiffs or against surviving defendants depends on other considerations, but those considerations did not arise in the present matter because the sole respondent had died.

In this case the Court observed that the effect of an abatement on a suit, whether it concerns the surviving plaintiffs or the surviving defendants, depends on additional considerations that have been articulated by this Court in the decisions of State of Punjab v. Nathu Ram (1) and Jhanda Singh v. Gurmukh Singh (2). However, the Court noted that those considerations are not applicable here because the sole respondent in the present proceedings had died. The Court further pointed out that, pursuant to rule 11 of Order XXII of the Civil Procedure Code, the terms “plaintiff”, “defendant” and “suit” used in that Order are to be read as inclusive of “appellant”, “respondent” and “appeal” respectively. Consequently, when an abatement operates against a defendant, the result is that no fresh suit may be instituted on the same cause of action, as the prohibition is reinforced by sub‑rule (1) of rule 9 which expressly bars the institution of a fresh suit.

The Court explained that the only remedy available to a plaintiff, or to a person asserting to be the legal representative of a deceased plaintiff, is to obtain a setting aside of the abatement. Such a setting aside may be achieved only by filing an application for that purpose within the time prescribed by law. The Court clarified that it will entertain an application to set aside the abatement only if the applicant can demonstrate that he was prevented by a sufficient cause from continuing the suit. This requirement obliges the applicant to allege and prove facts which, in the Court’s view, constitute a sufficient reason for his failure to present, within the prescribed period, an application that would bring the legal representatives of the deceased on record. In the absence of any such factual allegation, the Court held that no basis exists to set aside the abatement, unless the surrounding circumstances of the case are so manifest that the Court can infer that a sufficient cause existed for the applicant’s inaction within the limitation period. The Court emphasized that such a situation would be exceptional. A mere statement that the applicant learned of the other party’s death more than three months after the demise, even though cited in the earlier authorities, is ordinarily inadequate to persuade the Court that the applicant had sufficient cause for failing to implead the legal representatives in time. The Court reasoned that, had mere belated knowledge been enough, the legislature would have expressed the requirement differently and would not have imposed upon the applicant the burden of proving that a sufficient cause prevented continuation of the suit. The Court further noted that the limitation period for filing an application to set aside an abatement is three months, as per Article 171 of the First Schedule to the Limitation Act. This period is considered sufficiently long and reflects the legislature’s expectation that, in ordinary cases, a plaintiff would become aware of the death of a defendant and of the identity of the deceased’s legal representatives within three months, especially given that the interval between successive hearings of a suit is usually much shorter than that period.

The judgment explained that the legislature had presumed that the interval between successive hearings of a suit would normally fall well within three months, and that the absence of any defendant at a particular hearing could be explained by the defendant’s counsel or a relative, for example, on the ground of death, or could lead the plaintiff to inquire about the reasons for the other party’s non‑appearance. It appeared that the legislature also recognised the possibility that a plaintiff might not learn of a defendant’s death as promptly as ordinarily expected. Consequently, the law provided an additional two‑month period under article 176 for filing an application to set aside the abatement of the suit, and it made the provisions of section 5 of the Limitation Act applicable to such applications. This scheme gave the plaintiff a reasonable window of up to five months, within which, if the plaintiff could prove the circumstances of the case, the court might deem the delay justified. The court observed that it would be unwise to prescribe exhaustively the exact considerations that would constitute “sufficient cause” for setting aside an abatement, or for the plaintiff’s failure to bring the legal representatives of a deceased defendant on record, or for not applying within the prescribed time. Nevertheless, the court emphasized that any delay should not stem from negligence on the part of the plaintiff, that is, from a failure to take steps that a reasonable plaintiff could and should have taken under the circumstances. What those necessary steps might be would depend on the facts of each case, and each application would be decided by the court according to its own factual matrix. The court warned that furnishing illustrative lists of circumstances could restrict the court’s independent assessment of whether the facts of a particular case amount to sufficient cause. It affirmed that courts must exercise their discretion soundly and in the interests of justice. The judgment further noted that it would be pointless to repeat the appellant’s reliance on prior cases to argue that mere ignorance of the respondent’s death should automatically be treated as sufficient cause, especially when the appellant claimed that the ignorance was not due to culpable negligence or malice. The court reiterated that a simple claim of ignorance is insufficient; the appellant must first explain why he did not know of the death earlier, or why he could not have known despite any efforts he may have made to ascertain whether the respondent had died. The correctness of the appellant’s explanations, the court said, could be challenged by the other party.

The Court indicated that it would examine the extent to which the reasons advanced by the appellant had been substantiated and whether those reasons were adequate to establish that the appellant possessed sufficient cause for failing to file an application to bring the legal representatives of the deceased respondent onto the record at an earlier stage. In the facts before the Court, the appellant’s conduct was described as fundamentally misguided from the outset. In the application filed on 17 March, the appellant merely asserted that Ram Charan had died on 21 July 1957 and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, had become aware of that death on 3 February 1958. Shri Bhatia’s affidavit contained no additional narration and he did not corroborate the statement on the basis of his own personal knowledge. The Court found it difficult to conceive why Shri Bhatia, having learned of the death on 3 February 1958, would refrain from affirming that the statement was true according to his direct knowledge rather than merely his belief. Moreover, the judgment of the High Court revealed that the subsequent application dated 13 May 1958 did not introduce any further information, and that material was not placed on record. The most detrimental aspect for the appellant, according to the Court, was that when the application was presented before the learned Single Judge, the appellant maintained that the limitation period for such an application should be measured not from the date of the respondent’s death but from the date when the appellant became aware of that death. The appellant’s position appeared to be that no abatement had in fact occurred because the limitation period, in its view, commenced on 3 February 1958, the date on which the appellant’s officer learned of the death, and that the application was filed within three months of that date. Because of this attitude, the Court noted that the application dated 17 March 1958 was framed solely under Rule 4 of Order XXII and did not invoke Rule 9 of the same Order, nor did it contain an explicit prayer for setting aside the abatement. The Court explained that the limitation for filing an application to set aside the abatement of a suit begins on the death of the deceased respondent, as provided by Article 171 of the First Schedule to the Limitation Act. That provision does not permit the limitation period to start from the appellant’s date of knowledge of the death. Consequently, the Court held that the appellant’s stance was wholly unjustified and demonstrated a complete lack of understanding of the elementary provision of the Limitation Act. In these circumstances, the Court concluded that the High Court could not be said to have erred in its view that the appellant had failed to establish sufficient cause for not bringing the representatives of the deceased respondent onto the record within the prescribed time, nor for failing to apply for setting aside the abatement within the stipulated period. Accordingly, the Court found no merit in the appeal, dismissed it, and ordered the appellant to bear costs.