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2001 DIGILAW 310 (HP)

SOMA DEVI v. RATTAN CHAND

2001-11-01

A.K.GOEL

body2001
JUDGMENT Arun Kumar Goel, J.—Before adverting to the facts of the case, it is necessary to refer to the circumstances whereunder this application has been filed which are as under:— 2. Deceased Mori Devi was the sole appellant. She had filed R.S.A. No. 204 of 1989 in this Court because she felt aggrieved from the judgment and decree passed by the then learned District Judge, Mandi, Kullu and Lahaul Spiti Districts at Mandi in C.A. No. 12 of 1987, dated 11.4.1989. Thus the appeal of-Nanak Chand, Rattan Chand and Tawarsu was allowed and consequently the suit filed by Mori Devi in the Court of Sub Judge, Sarkaghat vide civil suit No. 64 of 1985, decided on 16.12.1986 was dismissed. 3. This second appeal came up for consideration before this Court and was finally allowed as per judgment and decree passed on 1.5.1997. Upto this point of time so far sequence of events regarding filing of suit, appeal and regular second appeal are concerned, learned Counsel for the parties are not at variance. 4. Record of R.S.A. No. 204 of 1989 when examined with the assistance of the learned Counsel for the parties also reveals that after the decision of the aforesaid R.S.A. on 1.5.1997, respondents No. 1 to 3 filed three applications being: (a) CMP No. 331 of 1997 under Section 151 CPC for recalling the judgment and decree dated 1.5.1997 being a nullity in the eyes of law as the sole appellant had died on 7.6.1994; (b) CMP No. 332 of 1997 under Section 151 CPC for staying the operation of judgment and decree dated 1.5.1997 passed by this Court; and (c) CMP No. 653 of 1997 under Section 151 CPC for declaring the judgment and decree dated 1.5.1997 as nullity and to dismiss the appeal as having abated. 5. At the time of hearing of the matter, learned Counsel for the parties were not at variance that the sole appellant Smt. Mori Devi had died on 7.6.1994. It was in such circumstances that three applications came to be filed by respondents No. 1 to 3. It was further not disputed on behalf of the parties that the factum of death was not pointed out to the Court on 1,5.1997, when RSA 204 of 1989 was decided. 6. Record of the RSA further shows that when these applications came up before the Court on 26.9.1997, Mr. It was further not disputed on behalf of the parties that the factum of death was not pointed out to the Court on 1,5.1997, when RSA 204 of 1989 was decided. 6. Record of the RSA further shows that when these applications came up before the Court on 26.9.1997, Mr. Praneet Gupta, Advocate, appeared vice Counsel for the appellant i.e. (for Smt Mori Devi). He did not appear on 3.10.1997 also. All the three applications came up for consideration before court on 10.11.1997. What was observed in the order dated 10.11.1997, relevant portion of the same reads as under:— "Mr. Bhupender Gupta, learned Counsel for the appellant had argued the appeal when it was decided on 1.5.1997. However, Shri Praneet Gupta who has, put in appearance today states that the brief of this case has been taken away by his client and he has no instructions in the matter. (Emphasis supplied) In CMP No. 332/97, the prayer is for staying the operation of the judgment and decree dated 1.5.1997 being nullity. The last application is with the prayer to dismiss the appeal as having been abated. There is no reason to doubt the fact that the sole appellant Smt. Mori Devi died on 7.6.1994. As per the pleadings, she died issueless. This has also been so stated in para No. 3 of the application i.e. CMP No. 653/97. Her husband Shri Ram Sahai had married second time with Smt. Nihatu Devi. Out of the said wedlock, Smt. Basanti Devi had born. The present respondents No. 1 to 3 i.e. the applicants in these applications are the sons of Smt. Basanti Devi. All the three i.e. Ram Sahai, Nihatu Devi and Smt. Basanti Devi are also stated to have died." 7. In the aforesaid circumstances, this Court had held that since Mori Devi had died issueless on 7.6.1994, as such decree having been passed in favour of the sole appellant, Smt. Mori Devi, the same was required to be recalled. It was thus ordered accordingly. Consequently appeal was dismissed as having abated and the applications were disposed of. 8. In the aforesaid circumstances, this Court had held that since Mori Devi had died issueless on 7.6.1994, as such decree having been passed in favour of the sole appellant, Smt. Mori Devi, the same was required to be recalled. It was thus ordered accordingly. Consequently appeal was dismissed as having abated and the applications were disposed of. 8. It is in this background that the present application has been filed by Smt. Soma Devi daughter of Durga Dass son of Him under Order 22 Rules 3 and 9 read with Section 151 CPC and Section 5 of Limitation Act, for bringing her on record as heir of Smt. Mori Devi on the basis of a registered Will stated to have been executed by the deceased appellant Smt. Mori Devi in her favour by setting aside abatement and condoning the delay in filing the application; and thereafter to restore the regular second appeal to its original number and then dispose of the same in accordance with law. Respondents were put to notice. 9. Applicant Smt. Soma Devi also pleaded that the appeal was being prosecuted by her husband Manohar Lal as Attorney of Smt. Mori Devi and his taking no interest in the matter after becoming alcoholic and situation having deteriorated to the extent that it is she who is maintaining her husband. As also no intimation was received from the counsel who was prosecuting the appeal. It is further pleaded that no notice was served either upon the applicant or special attorney of the deceased appellant Mori Devi in three applications filed by the respondents, (referred to hereinabove) and she came to know of the passing of the order on these applications of the respondents after they started interfering with her possession over the suit land. 10. Respondents have seriously and hotly contested the claim of the applicant. According to them, this application under Order 22 Rules 3 and 9 CPC is not maintainable. It is further- pleaded by them that unless delay is explained and cause for setting aside the abatement is made out, there is no question of consideration of the application. 11. All other pleas have also been contested on behalf of the respondents. Their specific case is that there is no matter pending before the court wherein legal representatives can be brought on record. 11. All other pleas have also been contested on behalf of the respondents. Their specific case is that there is no matter pending before the court wherein legal representatives can be brought on record. According to the respondents, they had informed the court regarding the death of the sole appellant and it was thereafter that the court passed the order particularly when Mori Devi had died issueless. 12. At the time of the hearing, learned Counsel for the respondents also submitted that there is no question of any notice having been issued to the applicant or any other person by the Court as none was required to be issued. According to the learned Counsel for the respondents, there is no cause much less sufficient cause made out in the circumstances of this case so as to either condone the delay or for setting aside the abatement. Accordingly she prayed for dismissal of the application. 13. After having heard learned Counsel for the parties and for the reasons to be recorded hereinafter, I am satisfied that in the peculiar circumstances of the case not only the delay in filing the application but even the abatement also needs to be set aside and consequently Soma Devi allowed to be brought on record as legal representative of deceased sole appellant Mori Devi. 14. It may be appropriate to observe that so far question of abatement is concerned, it does not call for any order from the court. In case steps are not taken to bring on record the legal representatives as per law, it neither needs to be adjudicated nor calls for passing any formal order. It is the natural outcome and direct result of the legal representatives being not brought on record. Once this court had come to the conclusion after having recalled the judgment on 1.5.1997, what was required was to have ordered consignment to records of the file in the appeal. In addition to this, a party in law can always approach the Court for setting aside the abatement by making out a case in that behalf. 15. Looking to the submissions made in the application, I am satisfied that husband of the appellant Manohar Lai who was attorney of the sole appellant in the regular second appeal, did not bother to prosecute the matter diligently. 15. Looking to the submissions made in the application, I am satisfied that husband of the appellant Manohar Lai who was attorney of the sole appellant in the regular second appeal, did not bother to prosecute the matter diligently. If he had acted in the interest of the deceased appellant, he would have immediately informed the learned Counsel about her death or at least would have followed the matter with the learned Counsel. I see no reason to disbelieve the stand of the applicant Soma Devi that he (attorney) became disinterested because of having become alcoholic. Averments made to the contrary in the reply of the respondents cannot be accepted and the same are accordingly rejected. 16. So far matter regarding condonation of delay is concerned, it may be observed that provisions of Section 5 of Limitation Act have to be liberally construed so as to advance the cause of substantial justice. In addition to this, the approach of the court has to be justice-oriented. Law does not presume that whenever delay occurs, it is intentional and/ or wilful. Courts are respected for doing justice between the parties and not throwing a case without adjudicating it on merits. When grant of justice is pitted against technicality, latter will give way to the former. Above all, pendantic approach of insisting to explain each days delay will be contrary to the spirit and purpose of administering justice as a party will be condemned unheard. All that a party gets after condonation of delay is hearing of the matter and not decision of the same on merits. A party does not stand to gain by not coming to Court within time. Fro taking this view, a reference can be made to Collector Land Acquisition, Anantnag v, Mst. Katiji, AIR 1987 SC 1353; State of West Bengal v. The Administrator, Howrah Municipality and others, AIR 1972 SC 749; State of Haryana v. Chandra Mani and others, (1996) 3 SCC 132 and N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123. 17. No other point is urged on behalf of the parties. 18. Katiji, AIR 1987 SC 1353; State of West Bengal v. The Administrator, Howrah Municipality and others, AIR 1972 SC 749; State of Haryana v. Chandra Mani and others, (1996) 3 SCC 132 and N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123. 17. No other point is urged on behalf of the parties. 18. As a result of the aforesaid discussion, this application is allowed and Smt. Soma Devi is ordered to be substituted as legal representative of deceased appellant Smt. Mori Devi in R.S.A. No. 204 of 1989 by setting aside abatement in filing the application as well as by condoning the delay subject to payment of Rs. 2,000 as costs, 50% of which learned Counsel for the respondents No.1 to 3 has stated may be given to the High Court Bar Association for purchase of books and rest of 50% to the Advocates Welfare Fund of the Bar Council, Himachal Pradesh, Shimla. Costs to be deposited within two weeks either by means of a bank draft or in cash with the Secretary, Bar Association as well as Secretary, Advocates Welfare Fund of the Bar Council, Himachal Pradesh, Shimla. Registry will carry out necessary corrections in the record. List this appeal after two weeks. Application stands disposed of. Appeal allowed.