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Friday, May 9, 2014

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.
2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41486
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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