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2007 DIGILAW 97 (PAT)

Rupkala Devi v. Raj Nath Singh

2007-01-12

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This Miscellaneous Appeal has been filed against the order dated 20.4.1999 passed by 2nd Additional District Judge, Patna in Title Appeal No. 78 of 1985 whereby he has been pleased to dismiss the petition dated 7.3.1988 filed by the heirs of appellant nos. 3 and 4 as well as the petition dated 4.4.1998 filed on behalf of the appellants nos. 1, 2, 5 and 6 for substituting the names of the heirs of appellant nos. 3 and 4 and held that the appeal filed by the appellant nos. 3 and 4 has abated. 2. The contention of Sri Sidheshwari Prasad Singh, learned Senior Advocate, appearing on behalf of the appellants, is that the courts are of the view that on technical grounds parties should not be debarred from contesting the suit but the learned Additional District Judge has debarred the heirs of appellant nos. 3 and 4 to contest the appeal on the ground that the petition for substitution was not filed in time and the same was time barred. In support of his argument, he has placed reliance upon the decisions reported in AIR 1983 Supreme Court 355 (Bhagwan Swaroop and Others, appellants vs. Mool Chand and Others, respondents) and 1985 B.L.J.(8) 165 (Placitum D) *(Om Chand Soni and Anther, appellants vs. Mohan Lai Marwari and Others, respondents). 3. Against the argument of the learned Advocate of the appellants, the learned Advocate of the respondents has submitted that both the decisions are not applicable in the present case because of the fact that legally there was no petition for substitution on record as the petition dated 7.3.1998 filed on behalf of the heirs of deceased appellants nos. 3 and 4 for substitution of their names was not accompanied by an application for condonation of delay, as provided under Sec. 5 of the Limitation Act. He submitted that since there was no application under Sec. 5 of the Limitation Act on record, as such it should be construed that the petition dated 7.3.1998 filed on behalf of the legal representatives of the deceased appellants nos. 3 and 4 was not on record. He has further argued that by filing a separate petition for condonation of delay by appellant nos. 1, 2, 5 and 6 on 4.4.1998, the inherent defect in the petition filed by the heirs of the deceased appellant nos. 3 and 4 was not on record. He has further argued that by filing a separate petition for condonation of delay by appellant nos. 1, 2, 5 and 6 on 4.4.1998, the inherent defect in the petition filed by the heirs of the deceased appellant nos. 3 and 4 on 7.3.1998 could not be cured, and, therefore, the pre-sumption would be that the petition for substitution filed on 7.3.1998 by the heirs of the deceased appellant nos. 3 and 4 was legally not on record and, so the learned Additional District Judge has rightly held that the appeal against appellants nos. 3 and 4 has abated. 4. I am of the view that the argument of the learned Advocate of the respondents is according to law as admittedly, the petition dated 7.3.1998 was filed when the appeal against the deceased appellant nos. 3 and 4 had already abated and for condonation of delay and for setting aside abatement no petition was filed. Under the circumstances, I am of the view that the court had no jurisdiction to look into the petition dated 7.3.1998 when the same was not filed alongwith an application for condonation of delay meaning thereby that the petition dated 7.3.1998 was non-existent in the eye of law. Under such circumstances, I am of the view that the learned Additional District Judge has rightly held that the appeal against the deceased appellant nos. 3 and 4 has abated. 5. So far as the contention of the learned Advocate of the respondents that by filing an application for condonation of delay by appellant nos. 1, 2, 5 and 6, the defect has been cured, is concerned, I am of the view that the inherent defect in the petition dated 7.3.1998 cannot be cured by filing application under Sec. 5 of the Limitation Act on behalf of the appellant nos. 1,2,5 and 6 as the interest of all the appellants was not joint rather each of the appellants has distinct interest in the suit property. In such view of the matter, I am of the view that the decisions cited above by the learned Advocate of the appellants are of no help. 6. In the result, I do not find any merit in this appeal and as such, the same is hereby dismissed. But there will no order for cost.