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1998 DIGILAW 210 (HP)

SITARAM v. UTTAM CHAND

1998-11-12

SURINDER SARUP

body1998
JUDGMENT Surinder Sarup, J (Oral): This revision petition is directed against the order of the learned District Judge, Hamirpur dated 08.Q5.1998 whereby, I the application under Order 1 Rule 10 C.P.C. filed by Asha Devi respondent No.2 herein, has been allowed and her name has been substituted as sole appellant in place of her husband Uttam €hand respondent No. 1, who are the original plaintiffs in the main suit 2. Learned counsel for the parties have been heard and the record has been perused. It has been submitted by the learned counsel for the petitioner, one of the defendants in the main suits, that at the time when the application was invoked by the said Asha Devi, the limitation for filing the appeal at her instances had expired, therefore, a vested right had accrued to the petitioner-defendant, which has been taken away by the impugned order and the same is thus without jurisdiction. 3. On the face of it, the argument appears to be attractive but when considered indepth, it does not appear to be so. Admittedly, the appeal had been filed by the husband Uttam Chand, original plaintiff, who after the decision of the trial Court dismissing his suit, transferred the suit property in the name of his wife i.e. the said Asha Devi. It is also not in dispute that the appeal filed by the said Uttam Chand was within time. That being the position, in the considered view of this Court, the learned District Judge, Hamirpur was not in any legal error in entertaining the application of Asha Devi and allowing it on merits. The ruling cited by the learned counsel for the petitioner, which has also been noted and taken into consideration in the impugned order, i.e. Kisan Cooperative Sugar Factory Ltd. v. M/s Rajendra Paper Mills & Ors., (AIR 1984 Allahabad 143) has not application to the facts of the present case. 4. The ruling cited by the learned counsel for the petitioner, which has also been noted and taken into consideration in the impugned order, i.e. Kisan Cooperative Sugar Factory Ltd. v. M/s Rajendra Paper Mills & Ors., (AIR 1984 Allahabad 143) has not application to the facts of the present case. 4. The learned counsel for the plaintiff - respondent has invited the attention of this Court to the provisions of Order 22 Rule 10(1) C.P.C. which prescribes the procedure is case of assignment before final order in suit, and provides that in such an eventuality, i.e. assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against a person to or upon whom such interest has come or devolved. There is force in the submission of the learned counsel for the respondent that in such an eventuality, the question of limitation does not arise. It would be stating a legal truism that an appeal is a continuation of a suit, and, therefore,, in the circumstances of the present case, there was no question of limitation working against the respondent in so far as the application made by the said Asha Devi for being substituted as appellant in place of her husband Uttam Chand is concerned. It necessarily follows that no vested right under the law of limitation has been taken away from the petitioner, nor any prejudice has been caused to him. In other words, the angle of equity works more towards the respondent Uttam Chand and his wife Asha Devi then gravitating towards the petitioner. 5. , It is also to be borne in mind that rules of procedure are handmaid of justice and are substantially meant to advance/further cause of justice and not to thwart it. This is the settled law of the land. Therefore, viewed from any angle, and in its proper perspective, there is no such error of jurisdiction or even any illegality or materials irregularity from which the impugned order m ay be said to be suffering so as to call for interference by this Court in exercise of its revisional jurisdiction under SectionT15 C.P.C. 6. For the reasons recorded above, this revision petition fails and is dismissed but, without any order as to costs.