CCCA/173/1994 of Abdul Khadeer Khan Vs Abdul Jaleel Khan on 31 December 2014

COMMON ORDER:-

The suit was originally filed by Waheeda Banu – 1[st]petitioner/appellant against Abdul Jaleel Khan and Mohd.Khaja –respondents No.1 and 2/defendants.

2. The original plaintiff – Waheeda Banu died. Her two sons (AbdulKhadeer Khan and Abdul Khader Khan) and three daughters (JameelaBanu, Azizia and Sultana Banoo) were impleaded as appellants No.2 to6. Subsequently, Abdul Khadeer Khan (appellant No.2) died on 10-08-2008; Abdul Khader Khan (appellant No.3) died on 30-07-2006; andSultana Banoo (appellant No.6) died on 08-05-2008.

3. The 1[st] respondent/defendant Abdul Jaleel Khan died and no legalrepresentatives were proposed to be impleaded.

4. The 2[nd] respondent – Mohd.Khaja died on 14-09-2009. JameelaBanu and Azizia – petitioners No.4 and 5/appellants were represented bytheir Advocate – Sri Venkata Raghu Ramulu, he having originally filed theVakalat for the two ladies on 18-07-2007, subsequently once again thevery same Advocate Venkata Raghu Ramulu has filed a fresh Vakalat forthe two ladies Jameela Banu and Azizia on 14-03-2014. The deceased 2[nd] respondent/defendant was represented by Sri K.Raghuveer Reddy,who has filed the Vakalat on 06-11-1995.

5. In view of the death of the 2[nd] respondent/defendant, who wasrepresented by Sri K.Raghuveer Reddy, the said Advocate has issued aletter dated 30-10-2010 to Sri K.Venkata RaghuRamulu, Advocate, whowas appearing for Jameela Banu and Azizia, informing him about thedeath of the 2[nd] respondent- Mohd.Khaja on 14-09-2009 and alsoinformed that he left behind 2 sons by name Md.Jaweed Ahmed andMd.Wajid Ahmed. This letter was received by Sri K.Venkata RaghuRamulu, Advocate appearing for the petitioners No.4 and 5 on 01-11-2010. This is part of the record, with the acknowledgment of the saidCounsel, having received the intimation about the death of respondentNo.2 and also informing the names of the legal representatives as longback as on 30-10-2010. The present petition to set aside the abetmentand implead Mr.Md.Jaweed Ahmed and Mr.Md.Wajid Ahmed was filed on28-03-2014 with a delay of 1504 days.

6. In support of the applications, the 5[th] petitioner – Azizia has filed anaffidavit and in view what is mentioned above, it is manifest that theaverments made in the affidavit are on the face of it are incorrect. In heraffidavit, she mentions as follows in paras 3, 4 and 5:- “It is submitted that myself and petitioner No.4 are notaware about the proceedings in the present appeal as myself andpetitioner No.4 are Pardah Nasheen ladies and we weredepending upon our brothers i.e., the petitioners/appellants No.2and 3 herein. It is submitted that the above referred appal hasbeen filed by Sri Mohd.Azizullah Khan, Advocate on behalf ofmyself and other petitioners. My elder brother Sri Abdul KhadeerKhan was looking after the court cases. He died on 10-08-2008due to which myself and my elder sister i.e., petitioner No.4 hereinhave no knowledge about the court proceedings, pendency of thematter etc. It is submitted that due to the death of my elder brother,myself and petitioner No.3 were not aware about the death of SriMohd.Azizullah Khan, Advocate. Later on I came to know aboutthe death of Azizullah Khan, Advocate.

It is further submitted that we came to know through ourAdvocate Sri Venkat Raghu Ramulu about the pendency of the

matter and about the death of Sri Mohd.Khaja who is respondentNo.2 herein. Myself and petitioner No.3 herein further came toknow about the death of Sri Mohd.Azizullah Khan, Advocate. It issubmitted that in view of the death of the petitioners 1, 2, 3 and 6,myself and petitioner No.4 were not aware about the pendency ofthe case, etc. It is submitted that due to the communication gapwere not aware about the pendency of the case.

Immediately on 27-03-2014, myself and petitioner No.3herein have approached our Counsel and requested to file L.R.petition to bring the L.Rs., of respondent No.2 on record. Due tothe lack of knowledge of the death of the respondent No.2, wecould not file the L.R. petition. It is submitted that recently wecame to know about the death of the respondent No.2. It issubmitted that non-filing of the L.R.petition, abatement petition,condone delay petition is neither intentional nor deliberate. It issubmitted that immediately after the knowledge, we approachedour Counsel and advised him to file the L.R. Petition, abatementpetition and condone delay petition. It is submitted that therespondent No.2 died on 14-09-2009 leaving behindMohd.Javeed Ahmed and Mohd.Wajid Ahmed.”

7. In view of the fact that the 2 surviving petitioners/appellants werebeing represented by their Advocate Sri Venkata Raghu Ramulu, whohas filed Vakalat on their behalf as long back as on 18-07-2007, theaverments in the above paragraphs of the affidavit cannot be believed. It is also not disputed that the appellants Advocate Sri Azizullah Khandied on 05-05-2011 whereas the 2[nd] respondent died on 14-09-2009and written intimation has given by R.2’s Advocate on 30-10-2010 tothe appellant’s Counsel on record.

8. On behalf of the proposed respondents, counter is filed opposingthe application and setting out all the facts. The learned Counselappearing for the proposed respondents also relied upon the decisionsreported in M.VARALAKSHMI v. K.MAHADEVA SASTRY (DIED)AND OTHERS[[1]]; KATARI SURYANARAYANA AND OTHERS v.KOPPISETTI SUBBA RAO AND OTHERS[[2]]; and BALWANTSINGH (DIED) v. JAGDISH SINGH AND OTHERS[[3]].

9. The law laid down in the decision 3[rd] supra is to the following effect:- “…..Once the legislature has enacted the provisions ofOrder 22, with particular reference to Rule 9, and the provisionsof the Limitation Act are applied to the entertainment of such anapplication, all these provisions have to be given their true andcorrect meaning and must be applied wherever called for. If theCourt should take a very liberal approach and interpret theseprovisions in such a manner and so liberally, irrespective of theperiod of delay, it would amount to practically rendering all theseprovisions redundant and inoperative. Such approach orinterpretation would hardly be permissible in law.

….. The sufficient cause should be such as it wouldpersuade the court, in exercise of its judicial discretion, to treatthe delay as an excusable one. The party should show thatbesides acting bona fide, it has taken all possible steps within itspower and control and had approached the court without anyunnecessary delay. The test is whether or not a cause issufficient to see whether it could have been avoided by the partyby the exercise of due care and attention.

….. The law of limitation is a substantive law and hasdefinite consequences on the right and obligation of a party toarise. These principles should be adhered to and appliedappropriately depending on the facts and circumstances of agiven case. Once a valuable right hs accrued in favour of oneparty as a result of the failure of the other party to explain thedelay by showing right on the mere asking of the applicant,particularly when the delay is directly a result of negligence,default or inaction of that party. Justice must be done to bothparties equally. Then alone the ends of justice can beachieved. If a party has been thoroughly negligent inimplementing its rights and remedies, it will be equally unfair todeprive the other party of a valuable right that has accrued to it inlaw as a result of its acting vigilantly.

….. The explanation has to be reasonable or plausible,so as to persuade the Court to believe that the explanationrendered is not only true, but is worthy of exercising judicialdiscretion in favour of the applicant. If it does not specify any ofthe enunciated ingredients of judicial pronouncements, then theapplication should be dismissed. On the other hand, if theapplication is bona fide and based upon true and plausibleexplanations, as well as reflects normal behaviour of a commonprudent person on the part of the applicant, the Court wouldnormally tilt the judicial discretion in favour of such an applicant.

Liberal construction cannot be equated with doing injustice tothe other party. Delay should be condoned to do substantialjustice without resulting in injustice to the other party. Thisbalance has to be kept in mind by the Court while deciding suchapplications.”

10. Learned Counsel for the petitioners relied upon the followingauthorities:- STATE OF M.P. v. S.S.AKOLKAR[[4]]; RAM NATH SAO ALIAS

RAM NATH SAHU AND OTHERS v. GOBARDHAN SAO AND

OTHERS[[5]]; GANESHPRASAD BADRINARAYAN LAHOTI v.SANJEEVPRASAD JAMNAPRASAD CHOURASIYA ANDANOTHER[[6]]; BHAG MAL ALIAS RAM BUX AND OTHERS V.MUNSHI (DEAD) NUCLEUS LRs. AND OTHERS[[7]];PERUMON BHAGVATHY DEVASWOM PERINADU VILLAGE v.BHARGAVI AMMA (DEAD) BY L.Rs. AND OTHERS[[8]]; andSTATE OF KARNATAKA v. MOIDEEN KUNHI (DEAD) BY L.Rs.AND OTHERS[[9]].

11. The above authorities, no doubt, lay down that the Courts shouldadopt a liberal approach in the matter of condonation of delay either it befor restoration or for setting aside the abatement. The facts in theauthorities cited are quite distinct. As against the above, in the case inhand, it is clear that the petitioners have been grossly negligent inpursuing their remedy. If such an attitude on the part of a party is to becondone liberally, it amounts to putting premium on the persons whosleep over their rights and at their sweet will woke up and come to theCourt seeking the relief of condonation of delay. In the instant case, ashas already been noticed, the sole contesting respondent namelyMohd.Khaja died as long back as on 14-09-2009. The written intimationabout the death of the sole contesting respondent was furnished to theCounsel of the petitioners on record on 30-10-2010. A copy of theintimation giving the names of the legal representatives of the contesting

respondent were furnished and the Counsel on record for the petitionersacknowledged the same on 01-11-2010. The senior Counsel who wasappearing for the petitioners – Sri Azeezullah Khan died on 05-05-2011as per the information provided by the Bar Association. The application inhand is filed on 28-03-2014. In view of the above circumstances, it isdifficult to say that the petitioners are the persons who need to be shownthe indulgence of condoning the delay, which, by all means, is abnormalviz., 1504 days. It is not as though that the petitioners or the Counsel onrecord were not aware of the death of the sole contesting respondent. Merely, because, the petitioners happen to be pardanashin ladies, suchabnormal delay cannot be condoned. There are absolutely no merits inthe petition (CCCA MP No.216 of 2014) and the same is liable to bedismissed.

12. In the result, C.C.C.A.M.P.No.216 of 2014 is dismissed. Consequently, C.C.C.A.M.P.Nos.217 and 218 of 2014 shall standrejected. In the circumstances, nothing survives for adjudication inC.C.C.A.No.173 of 1994. Hence, C.C.C.A.No.173 of 1994 is dismissed. No order as to costs.

December, 2014

smr

_________________

M.S.K.Jaiswal, J

HON’BLE SRI JUSTICE M.S.K.JAISWAL

C.C.C.A.M.P.Nos.216, 217 and 218 of 2014in C.C.C.A.No.173 of 1994

(Common Order)

smr

Date: December, 2014

[1]2004 (4) ALD 371 (DB)

[2](2009) 11 SCC 183

[3](2010) 8 SCC 685

[4](1996) 2 SCC 568

[5]AIR 2002 SC 1201

[6](2004) 7 SCC 482

[7](2007) 11 SCC 285

[8]AIR 2009 SC (Supp) 886

[9]AIR 2009 SC 2577