Judgement
Judgement
Judgement
JUDGMENT
7. Before dealing further let me first of all deal with the application
u/s 5 of Limitation Act in-asmuch as unless and until the said application is
disposed of the matter cannot be proceeded further or arguments on the
appeal heard.
13. On the point of delay insofar as the judgment which has been
cited by ld counsel deals / pertains to their peculiar facts and circumstances.
In the case of Balwant Singh vs. Jagdish Singh, Civil Appeal No. 1166 of
2006 decided by Hon'ble Supreme Court on 08.07.2010 there was a delay
spanning years where no effective steps were taken for impleadment or to set
aside abatement.
MCA no. 6/17
Mrs. Kanwaljeet Walia vs. Mr. Arup Kumar Bhattacharya Page no. 4 of 18
14. On this aspect, either side had relied upon the following
judgments (relied by the appellants) -
(1) Collector, Land Acquisition, Anantnag and Anr. V/s Mst.
Katiji & Ors, Civil Appeal No. 460 of 1987, Supreme Court of India;
(2) Manju Barjatya v/s Uma Singh & Ors, RFA (OS) 05/16,
High Court of Delhi.
(relied upon by the respondents)
1. Ramlal, Motilal and Chhotelal v/s Rewa Coalfields Ltd.,
Civil Appeal No. 276 of 1958, Supreme Court of India.
2. Balwant Singh v/s Jagdish Singh & Ors, Civil Appeal No.
1166 of 2006, Supreme Court of India.
15. On the point of delay, in so far as the judgments which has been
cited by respondent's side, in the case of Balwant Singh v/s Jagdish Singh
(supra), there was a delay of 778 days in filing the applications for seeking
impleadment by the legal representative. In the said context, question of
construing “sufficient cause“ under Section 5 of the Limitation Act, was
discussed. However, in my opinion, the principles which were laid down in
the said judgment as to the condonation of delay, favours the appellant,
though, in the end on the basis of the facts as emerged in the said case, the
delay was not condoned. First of all it is stated/ reiterated that there ought to
be liberal construction of the expression 'sufficient cause' in as much as the
same is intended to advance substantial justice. Further sufficient cause
should be such to persuade the Court, in exercise of its judicial discretion, to
treat the delay as an excusable one. Furthermore, the party should show that
besides acting bonafide, it has taken all steps within its power and control and
had approached the Court without any unnecessary delay.
17. In this regard, on the quantum of delay, ld. Counsel for appellant
have relied upon judgment Manju Barjatya vs. Uma Singh (since
deceased) Through LRs & Anr RFA (OS) no. 5/2016 dated 25.11.2016
wherein there was a delay of 3628 days which was condoned, thus, the
length or duration of delay is material but the cause which also includes or
takes color or cue from the main controversy has to be seen.
18. That being the situation, taking into facts and circumstances the
application u/s 5 of Limitation Act is allowed subject to cost of Rs.2,500/-
payable by appellant to respondents.
20. That being the situation this issue or question whether this
appeal lies before this Court as well as the nature of the appeal before FAO is
also decided in favour of the appellants.
26. He further submits that the said judgment also assist him as his
remedy is either to file an appeal or even a separate suit and he has opted to
file an appeal instead of a regular suit which otherwise was available to him.
28. Thus, this technical objection that both the orders dated
03.12.2016 are different or in a manner does not vests the appellants with the
right to file appeal, is untenable. It needs no gainsaying that both the orders
were delivered on the very same day. As such, in my opinion, they form a
composite order and the appellants had no option but to contest the same/
assail the same as they are aggrieved by rejection of their application for
impleadment as well as grant of succession certificate.
30. Per contra, ld counsel for respondent on this aspect urged that
there was no requirement of either impleading the LRs as husband was only
entitled to succession certificate. He submits that the said would only expand
the scope of controversy and would lead to multiplicity of litigation as every
person would try to impede grant of succession certificate. He submits that
proper publication was carried out in newspaper and the appellants herein
had also come in pursuance of the notice and it is not that they were not
aware about the proceedings.
31. This aspect, in my opinion does not make any difference as the
appellants had knowledge of publication and they had appeared before the
Court. The petitioner/ the respondents herein had filed the petition naming
the public at large. In clause 6(c) of the petition it is also stated that there is
no other heirs except her husband. Section 372(1)(c) uses the word 'family'
followed up by 'or' then uses the word 'near relatives'. 'Family' has not been
defined under the Indian Succession Act. It is after that there is no 'family',
the question of information to other relatives i.e., 'near relatives' is to be there.
Thus, to my mind, in so far as the requirement of arraying them as parties is
concerned or the same being a basic requirement, failing which the petition
would have been dismissed for non-joinder of the parties, same is not the
case herein. Obviously, as mentioned earlier, in so far as the filing of the
petition is concerned, the appellants had due notice thereof. This point is
32. The second line of argument which was strongly agitated was
that the ratio of Smt. Sharbati Devi & Anr vs. Smt. Usha Devi (1984) 1
SCC 424 is not applicable to the given set of facts and circumstances as the
ld. Trial Court did not even consider the fact/analyse or appreciate that there
is always a difference in so far as nomination in respect of insurance
contracts and nomination with regard to other contracts/statutory
developments. In a same swipe, it has been decided that the petitioners
were not eligible to claim the succession certificate or entitled to the dues. He
submits that in this regard he relies upon the judgment Smt. Usha Majumdar
and Ors v/s Smt. Smriti Basu, AIR 1988 Cal. 115, Smt. Indrani Wahi v/s
Registrar of Cooperative Societies and Ors , (2016) 6 Supreme Court
Cases 440 and Vidhyadhari and ors v/s Sukhrana Bai and Others,
(2008)2 Supreme Court Cases 238.
34. In so far as the judgment which have been relied upon, the
judgment of Vidyadhari vs. Sukhrana Bai (supra) is important and I am
quoting paragraph no. 13 of the same. The same is reproduced hereunder :
36. Sitting in the Appellate jurisdiction, I could have also decided the
said aspect, but in my opinion it would be more in the fitness of things that the
matter is again remanded back to Trial Court to decide afresh after giving an
opportunity to the appellant to present their case.
37. The last argument was that the succession certificate granted
was of much more amount than even pleaded/ sought for by the appellants.
The amounts with regard to medical bills and expenses were in fact incurred
by the appellants. This fact is refuted by the respondents. Nonetheless, if the
said amount is taken to be the dues qua which succession certificate has
been granted, then otherwise also the appellants requires to be heard in as
much as they have paid/expended money and would be entitled for
reimbursement from the employer of the deceased.
39. The upshot of the aforesaid discussion is that the order passed
by the Ld. Trial Court cannot be said to be legally sustainable order. In these
MCA no. 6/17
Mrs. Kanwaljeet Walia vs. Mr. Arup Kumar Bhattacharya Page no. 17 of 18
circumstances the order(s) dated 03.12.2016 are set aside.
41. In case the amount has already been taken / claimed by the
respondent from the department concerned then Ld Trial Court can take
steps to secure the amount either by way of bank guarantee or by any other
means as it deems fit.
43. Copy of order be given dasti to the parties under their signature.
Appeal file be consigned to record room.
Pronounced in open Court
on 23.12.2017
(Sumit Dass)
Additional District Judge-01
NDD/PHC/New Delhi/ 23.12.2017