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2006 DIGILAW 585 (JHR)

Mahendra Tanti v. Jagarnath Tanti

2006-05-10

N.N.TIWARI

body2006
ORDER N.N. Tiwari, J. 1. This civil revision is against the order dated 12.1.2004 passed in Misc. Appeal No. 2A of 1999 by which the Court below has dismissed the appeal. The said appeal was against the order of the trial Court whereby the petitioners petition for setting aside the abatement was rejected. 2. The fact of the case in brief is that original plaintiff of Title Suit No. 6 of 1994, Muni Lal Tanti, died during the pendency of the suit on 28.12.1994. The application for substitution was filed by the petitioner on 16.5.1996 after the suit was abated. The said application was not pressed. Subsequently, another application dated 10.6.1997 was filed praying for setting aside the abatement. The said petition was taken up by the trial Court and it was found that there was absolutely no explanation for delay in filing the application for substitution and for setting aside the abatement and in absence of any such petition, the trial Court rejected the petitioners application and refused to set aside the abatement by order dated 20th May, 1999. Against the said order, the petitioner filed an appeal before the District Judge, Sahibganj which was registered as Civil Miscellaneous Appeal No. 2A of 1999. The said appeal was heard and disposed of by the Additional District Judge 1st, Sahibganj by the impugned order. After discussion and consideration of the grounds taken in the appeal, the lower appellate Court found that no sufficient cause was shown for the inordinate delay in filing the application for substitution and for setting aside the abatement and the trial Court had rightly dismissed the suit and refused to set aside the abatement as the same was not supported by sufficient reasons. The lower appellate Court, thus, found no merit and dismissed the appeal. 3. Mr. J.P. Jha, learned senior counsel appearing on behalf of the petitioner submitted that the Courts below have taken mechanical view and have erroneously rejected the petitioners prayer for setting aside the abatement and for condonation of delay. Learned Counsel submitted that there was no wilful laches and delay on the part of the petitioner in taking the said steps rather they were presented from taking the steps within time under the circumstance which was apparent on the record of the case. Learned Counsel submitted that there was no wilful laches and delay on the part of the petitioner in taking the said steps rather they were presented from taking the steps within time under the circumstance which was apparent on the record of the case. It has been submitted that the sole original plaintiff died and the petitioner who was the legal heir was not aware about the case. Subsequently, when he came to know, he filed the application for substitution. It has been submitted that though there was delay in filing the petition for condonation of delay, but looking in the circumstance, aforesaid, the Court below should have condoned the same and set aside the abatement. 4. Mr. M.S. Akhtar, learned Counsel appearing on behalf of the opposite parties, submitted that the petitioner was guilty of wilful and deliberate laches in filing the petition for substitution within time and even at the time of filing the said petition, no prayer was made for condonation of delay and for setting aside the abatement. Learned Counsel submitted that if a suit is abated and a valuable right accrues to the other side, the said right cannot be taken away lightly unless the party at fault furnishes good grounds and reasonable explanation before the Court for exercise of its discretion and for setting aside the abatement and for condonation of delay. Learned Counsel submitted that there is no explanation worth the name for the inordinate delay in filing the application for substitution and even thereafter for filing the application for condonation of delay and for setting aside the abatement after more than a year. Since there was no material before learned Courts below for condonation of delay, the Court below have rightly exercised their jurisdiction, and rightly passed their order/judgment. He further submitted that the suit itself was a frivolous suit as the petitioner had already lost suit in which eviction of opposite parties was prayed and after having lost the said suit, the plaintiff had filed another suit praying injunction against them. The suit itself was, thus, without any legal basis and frivolous. 5. He further submitted that the suit itself was a frivolous suit as the petitioner had already lost suit in which eviction of opposite parties was prayed and after having lost the said suit, the plaintiff had filed another suit praying injunction against them. The suit itself was, thus, without any legal basis and frivolous. 5. After hearing the learned Counsel for the parties and perusing the impugned order/judgment of the Courts below and other materials on record, i find that after the death of the sole plaintiff, Muni Lal Tanti, petition for substitution was made after expiry of limitation, but, without any application for condonation of delay or for setting aside abatement. The petitioner, at that time did not press the application and after about more than a year of filing the said petition, he filed another application for condonation of delay and setting aside the abatement and no sufficient cause was shown for the said delays. Learned trial Court as also the learned lower appellate Court have considered the grounds taken by the petitioner and they have found that no satisfactory cause was explained in the petition on the basis of which the delay could have been condoned and the abatement could have been set aside. 6. The law of limitation, on the one hand prescribes a period for taking particular steps or for seeking remedy, and on the other hand, confers a valuable right after expiry of the period of limitation to the other party. When the suit was abated, a right had accrued to the defendant-opposite parties and for taking away the said right, the petitioner should have assigned sufficient reason to show that the delay in filing petition for substitution was not deliberate and under the circumstance beyond his control. Having failed to do so and having failed to make out any ground for condonation and for setting aside the abatement, the petitioner did not deserve any benefit of the discretion of the Courts below. Learned Courts below have thoroughly considered every aspect and have found that there was no sufficient explanation for the delay and the petitioner failed to make out any sufficient ground for condonation of delay and for setting aside the abatement and both the Courts below have refused the same. I find no illegality or material irregularity in exercise of jurisdiction by the Courts below warranting interference with the impugned order/judgment. I find no illegality or material irregularity in exercise of jurisdiction by the Courts below warranting interference with the impugned order/judgment. This civil revision application is, accordingly, dismissed.