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2007 DIGILAW 651 (RAJ)

Halwai Samiti v. Jai Singh

2007-03-30

KHEM CHAND SHARMA

body2007
JUDGMENT 1. - The plaintiffs' suit for rent and eviction against defendant tenant Chatru Ram was pending in the learned trial Court. During pendency of suit, Chatru Ram died and his counsel informed the Court about the death of Chatru Ram by filing an application dated 29.1.1985. Thereafter, the plaintiffs moved an application under Order 22 Rule 4 Civil Procedure Code on 15.4.1985, which was allowed by the trial Court vide order dated 29.6.1987 and Chota Devi and Jai Singh were brought on record as legal representatives of deceased Chatru Ram. On 10.7.1987 both the legal representatives of defendant tenant submitted an application under Order 9 Rule 7 Civil Procedure Code, which was allowed and the ex-parte order was set aside and the case was ordered to be listed for hearing on the application under Order 22 Rule 9 filed by the plaintiffs. On 28.7.1987 the plaintiffs moved an application under Order 22 Rule 9 Civil Procedure Code along with application under Section 5 of the Limitation Act. On hearing counsel for the parties, the learned trial Court vide its order dated 24.2.1995 dismissed the application filed under Order 22 Rule 4 Civil Procedure Code dated 15.4.1985. The trial Court vide its order referred to above also dismissed the application dated 28.7.1987 filed under Order 22 Rule 9 Civil Procedure Code The appeal preferred by the plaintiffs was also dismissed by the appellate Court vide its order dated 30.9.1999. Hence, the present revision petition by the plaintiff petitioners. 2. I have heard learned counsel for the parties and gone through the orders impugned in this petition. 3. It is an admitted position that Chatru Ram died on 5.1.1985 and the plaintiffs submitted an application under Order 22 Rule 4 Civil Procedure Code on 15.4.1985 which was beyond the period of limitation i.e. 90 days from the date of death. However, according to the plaintiffs, they came to know about the death of Chatru Ram on 29.1.1985 and from the date of knowledge they filed the application on 15.4.1985 and as such the application filed by them was well within the period of limitation. The dictum of the Apex Court in such like matters is that cases should not be disposed of on such technicalities. The dictum of the Apex Court in such like matters is that cases should not be disposed of on such technicalities. In the case at hand the death of tenant Chatru Ram came to the knowledge of the plaintiffs on filing an application under Order 22 Rule 10-A Civil Procedure Code, and an application under Order 22 Rule 4 Civil Procedure Code was filed within 90 days from the date of knowledge. In the circumstances therefore, the delay of 10 days in filing the application under Order 22 Rule 4 Civil Procedure Code deserves to be condoned and abatement deserves to be set aside. 4. Learned counsel for the non-petitioner has contended that the petitioners submitted an application under Order 22 Rule 9 Civil Procedure Code on 28.7.1987, whereas Chatru Ram died on 5.1.1985 and therefore, in view of the provisions of Article 121 of the Limitation Act, the application is beyond the period of limitation i.e. 90 days from the date of abatement. The non-petitioners disclosed the date of death of Chatru Ram for the first time in their reply dated 10.7.1987 to the application. The petitioners thereafter submitted an application under Order 22 Rule 9 Civil Procedure Code along with an application under Section 5 of the Limitation Act on 28.7.1987. 5. Primarily, the petitioners submitted an application under Order 22 Rule 4 Civil Procedure Code treating that application to be within time as the date of death was not disclosed in the application under Order 22 Rule 10-A Civil Procedure Code. 6. Be that as it may, in the facts and circumstances enumerated above, the ends of justice require that the application for bringing the legal representatives of defendant Chatru should have been granted and in such matters, the Courts should adopt liberal approach. In Collector, Land Acquisition, Anantnag v. Katji, AIR 1987 SC 1353 , their Lordships of the Apex Court while dealing with similar issue propounded that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. Their Lordships further propounded that it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical ground but because it is capable of removing injustice and is expected to do so. 7. Their Lordships further propounded that it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical ground but because it is capable of removing injustice and is expected to do so. 7. In an identical matter, the Division Bench of this Court M,/s. Rastriya Yuva Udhyog v. Bhawani Singh, 2002 WLC (Raj.) UC 382 treated the application of the appellant for bringing the legal representatives of the deceased on record also for setting aside abatement of the appeal, keeping in view the dictum of the Supreme Court that in such matters liberal view should be taken and cases should not be disposed of on such technicalities. 8. As stated above, the plaintiff petitioners came to the date of death of tenant Chatru Ram only on 10.7.1987 and thereafter they moved an application under Order 22 Rule 9 Civil Procedure Code along with an application under Section 5 of the Limitation. Act. Since an application for bringing the legal representatives of tenant was already on record, the suit of the plaintiffs, in my view would not have abated. The orders rejecting the application by the Courts below on the ground of it being barred by limitation cannot be sustained. 9. For the reasons aforesaid, this revision petition is allowed. The impugned order viz., the order dated 24.2.1995 passed by the learned trial Court and the order dated 30.9.1999 passed by the learned Additional District Judge No. 7, Jaipur City, Jaipur are set aside. The delay in filing the application under Order 22 Rule 4 Civil Procedure Code and the application under Order 22 Rule 9 Civil Procedure Code is condoned and the abatement is set aside. The legal representatives of the deceased tenant are ordered to be brought on record and the trial Court is directed to decide the suit was expeditiously as possible. 10. In the facts and circumstances of the case, the parties are left to bear their own costsRevision petition allowed. *******