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1997 DIGILAW 93 (MP)

Nawal Singh v. Nirbhay Singh

1997-02-24

A.R.TIWARI

body1997
JUDGMENT The defendants have filed this civil revision under Section 115 of the Code of Civil Procedure (for short 'the Code') against the order dated 10th December, 1994 passed by Tenth Civil Judge, Class-I, Indore in C.O.S. No. 118-A/94 thereby showing the delay on application under section 5 of the Limitation Act and allowing the application under Order XXII Rule 4 of the Code and permitting the legal representatives of deceased-defendant No. 1 Nawal Singh to be substituted in place of defendant No. 1. These legal representatives have also filed this civil revision alongwith surviving defendants No. 2 to 4. I have heard Shri Y.I. Mehta, learned counsel for the applicants and Shri Vinay Zelawat, learned Govt. Advocate for non-applicant No. 2. None appeared for non-applicant No. 1. Non-applicant No. 1 filed the aforesaid civil suit against deceased Nawalsingh and applicants No. 2 to 4 and non-applicant No. 2 for declaration and possession of agricultural land. Defendant No. 1 Nawal Singh died during the pendency of the suit. On 7.9.1992 non-applicant No. 1 filed an application under Order XXII Rule 4 of the Code and also an application under section 5 of the Limitation Act on 18.9.1992. In the application it was averred that defendant No. 1 died around 25/26th May, 1992. The applicants opposed the applications in writing and supported their contentions by affidavit of Chandan Singh. In the affidavit is stated that defendant No. 1 expired on 25.5.1992. The Court below considered both the applications and passed the detailed order allowing both the applications on 10th December, 1994. This order has led to filing of this civil revision. Indisputably there was some delay in filing the application for substitution. Defendant No. I was represented by the pleader. However, the pleader did not inform the Court about the death in terms of Order XXII Rule 10A of the Code. The counsel for the applicants submitted that the application presented on 7.9.1992 itself mentioned that the factum of death of defendant No. 1 had become known to him about one month before and as such there was no justification in delaying the presentation of the application for condonation of delay. In AIR 1985 SC 1 (Sital Prasad Saxena (dead) by Lrs. In AIR 1985 SC 1 (Sital Prasad Saxena (dead) by Lrs. v. Union of India and others), it is held as under : "Having heard learned counsel on either side we are satisfied that both the trial Court as well as the High Court were in error in not condoning the delay in seeking substitution of heirs and legal representatives of the deceased/appellant in time. Cause for delay as urged appears to us to be sufficient which prevented them from moving the petition for substitution. We are satisfied that sufficient cause was made for condoning the delay. " The suit was posted for 4.9.1992. The death occurred on 25.5.1992, yet the counsel did not inform the Court about the death in time. He reported the death only on 4.9.1992. Thereafter the non-applicant No. 1 filed the application on 7.9.1992 i. e. within three days from the date of the report of the death by the concerning pleader. In view of this position, the averments made in the application become inconsequential. Order XXII Rule 10A of the Code does cast a duty on the concerning pleader. This obligation was not discharged. The trial Court considered the submissions and passed the impugned order. Sufficient cause is rightly held to be made out. I am satisfied that the order does not contain any jurisdictional error and the conclusion is not vitiated so as to warrant any interference in revisional jurisdiction. The scope of interference in revisional jurisdiction as held in AIR 1973 SC 76 [The Managing Director (MIG) Hindustan Aeronautics Ltd. v. Ajit Prasad], is little and limited and depends on jurisdictional error. Justice has been done by the order impugned in this revision petition. In the result, I dismiss this revision petition but without any order as to costs. The trial Court shall now proceed further. The records shall be returned immediately.