Shriram Richpal through his LR Deoki Nandan v. Shri Mithan Lal through his LR Sh Anil Kumar Natani
2005-07-18
JITENDRA RAY GOYAL
body2005
DigiLaw.ai
Judgment J.R. Goyal, J.-This revision petition is directed against the order dated 29.01.2001 passed by Civil Judge (Jr. Division), Ajmer in Civil Suit No. 8/1993 whereby the application of the plaintiff -respondent under Order 22 Rule 9 of the Code of Civil Procedure (in short the Code) for setting aside the abatement of the suit has been accepted. 2. Brief facts of the case are that a suit for redemption of mortgage was pending against late Sh. Mithan Lal-defendant who died on 30.04.1997. Counsel for the defendant informed on 22.01.1998 to the Court as per the provisions of Order 22 Rule 10-A of the Code about the death of the defendant and thereafter an application for setting aside the abatement of the suit under Order 22 Rule 9 of the Code of Civil Procedure alongwith application under Section 5 of the Limitation Act was filed on 111.2000. Learned Civil Judge (Jr. Division) while holding that the plaintiff was prevented by sufficient cause for not substituting the legal representatives of the deceased-defendant Mithan Lal in time allowed the application and set aside the abatement of the suit. 3. Learned Counsel appearing for the petitioner-defendant submitted that Counsel of the defendant informed to the Court on 20.01.1998 about the death of Mithan Lal but for more than two years plaintiff-non-petitioner did not submit any application for setting aside the abatement and no satisfactory reason has been shown about such a long delay in making the application in time. It was also submitted that the plaintiff was represented by senior Counsels Sh. S.S. Deedwania, Kapoor Chand Jain, Ashok Rajoria and Subhash Rajoria Advocates, hence he could have submitted his application through any of these Advocates, thus the death of one Advocate Sh. Ashok Rajoria cannot be said to be a reasonable cause for not filing the application of setting aside the abatement of the suit in time. In support of the contentions, he relied on the Judgment delivered in the case of State of Gujarat vs. Sayed Mohd. Baquir E1 Edross, reported in AIR 1981 Supreme Court 1921, wherein under the facts and circumstances of that case their Lordships held that no sufficient cause for the condonation of delay in filing the appeal is made out from any material on the record. It was also held that strong case on merits is not a good ground for condonation of delay.
It was also held that strong case on merits is not a good ground for condonation of delay. In the case of Banshi @ Bahshidhar Agarwal vs. Laxmi Narain, reported in RLW 1994 (1) page 212, while dealing with the delay in filing the appeal under Section 5 of the Limitation Act it was held that client to be vigilant and cannot get away by saying that the Counsel did not inform about the order of the Court. In the case of Gouri Shankar & Ors. vs. Satya Narain, reported in 1992 (2) WLC (Raj.) Page 273, the defendant was found guilty of latches, thus, applications under Order 9 Rule 13 of the Code was dismissed considering the facts and circumstances of that case. 4. Learned Counsel appearing for the non-petitioner-plaintiff contended that after considering the entire facts and circumstances of the case in this matter, learned trial Court rightly allowed the application for setting aside the abatement. It was also contended that procedure of law is hand made for imparting the justice and technicalities should not be permitted to allow as hindrance in imparting substantial justice. In support of the contentions, reliance has been placed on Mahindra Land and Building Corporation Ltd. vs. Bhutnath Banerjee & Ors., reported in AIR 1964 Supreme Court 1336 and Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., reported in A.I.R. 1987 Supreme Court 1353. 5. I have considered the rival contentions, perused the impugned order and other material placed before me during the course or the augments. It is not disputed that the defendant Mithan Lal died on 30.04.1997 and an information about his death was given by his Counsel on 22.01.1998 after a period of about eights months. It is also evident from the order-sheet dated 14.05.1998 that Counsel for the plaintiff informed to the Court that the names of legal heirs of the defendant-deceased could not be find out, thus, he further sought time for submitting the application and thereafter the plaintiff submitted an application under Order 22 Rule 9 of the Code alongwith application under Section 5 of the Limitation Act for setting aside the abatement of the suit. Considering the entire fact situation and also the facts that Counsel Sh.
Considering the entire fact situation and also the facts that Counsel Sh. Ashok Rajoria appearing and conducting the case of the plaintiff fell ill and in the last died and that the plaintiff was the Government servant and not residing at Ajmer, learned trial Court found reasonable and sufficient cause for not preferring the application within limitation. Honble Supreme Court in the case of Mahindra Land & Building Corp. Ltds case (Supra) held that the trial Court had jurisdiction to determine whether there was sufficient cause for the plaintiff for not making the application for setting aside the abatement in time, and if so satisfied, to admit it, and High Court fell in error in interfering with that finding of the fact. In the case of Collector, Land Acquisition, Anantnag & Anr., case (Supra) the Honble Supreme Court held that the legislature has conferred the power to condone the delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It was further observed that refusing to condone the delay can result in a meritorious manner being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. In the case of Mithai Lal Daisangar Singh & Ors. vs. Annabai Devram Kini & Ors., reported in 2003 (10) Supreme Court Cases 691, while dealing with the provisions of Order 22 Rule 9(2) and Section 5 of the Limitation Act for setting aside the abatement, it was held that the opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of “sufficient cause” within the meaning of Order 22 Rule 9(2), CPC and of Section 5, Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction. In the case of Ram Nath Sao alias Ram Nath Sahu & Ors.
In the case of Ram Nath Sao alias Ram Nath Sahu & Ors. vs. Gobardhan Sao & Ors., reported in 2002 (3) Supreme Court Cases 195, the Honble Supreme Court held that the expression “sufficient cause” within the meaning of Section 5 of the Limitation Act, 1963 or Order 22 Rule 9 CPC or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. It was further observed that Court should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. 6. In the light of the ratio laid down by the Honble Supreme Court and under the facts and circumstances of this case when mala fide on the part of the plaintiff has not been imputed, I do not find any good reason to interfere with the order of the trail Court. 7. Consequently, this revision petition is hereby dismissed.