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2009 DIGILAW 355 (PAT)

Budhu Choudhary @ Budhu Yadav v. Suresh Baitha

2009-03-03

RAVI RANJAN

body2009
JUDGEMENT 1. Heard Mr. Sanjay Kumar Pandey No. 5, learned counsel for the petitioners. 2. The defendants-respondents-petitioners are aggrieved by the order dated 21.1.2009 passed by the Addl. District Judge-I, Gopalganj in Title Appeal No. 118 of 2006, whereby the petition dated 4.12.2008 filed for expunging the name of deceased respondent no. 15, namely, Gyanti Devi @ Shanti Devi and for substituting her heirs and legal representatives has been allowed by the appellate court. 3. Learned counsel for the petitioners submits that said Gyanti Devi @ Shanti Devi died on 20.10.2006 itself and since her legal representatives were not brought on record by the appellant within the time prescribed under law of limitation, the aforesaid appeal has already abated. Subsequently, a substitution petition was filed alongwith limitation petition for condoning the delay in filing of the same. However, submission is that neither any prayer for setting aside the abatement was made by the appellant nor any order setting aside abatement has been passed by the court below rather the aforesaid petition has simply been allowed. Thus, submission is that the impugned order is fit to be set aside. 4. I do not find any force in the submissions of the learned counsel for the petitioner inasmuch as such a hyper-technical objection cannot be allowed to come in the way of doing full and complete justice. 5. It would be apt to refer to a decision of the Supreme Court in this regard rendered in the case of K. Rudrappa Vs. Shivappa, reported in AIR 2004 SC 4346 . The relevant passage of aforesaid judgment is as under:- "10. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The case of the appellant before the District Judge was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildar. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned counsel for the appellant is right in submitting that a hyper-technical view ought not to have been taken by the District Court in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, technical objections should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted the prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law." 6. In view of the aforesaid I do not find any reason warranting interference in the impugned order by exercising discretionary civil revisional jurisdiction. 7. As a result, this Civil Revision is dismissed.