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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

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(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

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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

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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  

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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.

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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

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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

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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

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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.

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                    (SUDHANSU JYOTI  MUKHOPADHAYA)

………………..………………………………….J. NEW DELHI,             (KURIAN JOSEPH) APRIL 28, 2014.