Death of appellant during pendency of second appeal- Widow of appellant filed application for substitution claiming herself to be sole legal heir in whom right to sue survived on basis of a deed of family settlement-deceased died leaving his widow,two sons and three daughters-Held,so called family settlement deed can not be relied upon to exclude other legal heirs who had a right to be substituted due to death of original plaintiffs/appellant.
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.
IN THE SUPREME COURT OF INDIA
REPORTABLE
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4915-4918 OF 2014
(arising out of SLP (C) Nos. 25950-25953 of 2011)
KARAM KAUR
VERSUS
JALANDHAR IMPROVEMENT TRUST & ORS.
Sudhansu Jyoti Mukhopadhaya, J.
Dated;APRIL 28, 2014.
Citation;(2014) 6 SCC 409
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
Page 1
2
(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
Page 2
3
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 2 nd
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
Page 3
4
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
Page 4
5
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 18 th 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.
Page 5
6
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 21 st 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)
NEW DELHI,
APRIL 28, 2014.
............................................................J.
(KURIAN JOSEPH)
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