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2015 DIGILAW 949 (ALL)

Salik Ram (Dead) Through L K S v. Bhagwati Deen

2015-04-22

ADITYA NATH MITTAL

body2015
JUDGMENT Aditya Nath Mittal, J. C.M. Application No. 79992 of 2013 - Application for Condonation of Delay in filing the Recall Application 2. Heard Sri Ram Bali Tiwari, learned counsel for the applicants and the learned counsel for the respondents on the application for condonation of delay in filing the recall application for recall of the order dated 16.03.2012. 3. Learned counsel for the applicants has submitted that the previous counsel Sri R. P. Lal could not appear before the court on 16.03.2012 when the case was listed and the appeal was dismissed for want of prosecution. Later, Sri R.P. Lal, the then counsel, had died in the month of August, 2013. It has also been submitted that when the respondents started to take possession over the land in dispute, then it came to the knowledge of the applicant from some "reliable person" that the appeal has been dismissed for want of prosecution. 4. Learned counsel for the respondents has submitted that the appeal is pending since 1978 and by order dated 01.12.1994, Hon'ble the Apex Court has remanded the matter and has requested to this Court to expedite the matter in view of long pendency of the case but even then, the appellant has not taken any interest in the disposal of the appeal. It has also been submitted that after the remand from Hon'ble the Apex Court, the appeal was dismissed for want of prosecution on 21.01.2002; 19.01.2005; 17.03.2008; 21.01.2009; and lastly on 16.03.2012, which shows the conduct of the appellant that he is not interested in pursuing his appeal. It has also been submitted that on the death of respondent no. 1 - Bhagwati Din on 07.05.2007, the learned counsel for the appellant had given the statement in the court that he will move the application for substitution but the application for substitution was not moved and on 13.08.2007, learned counsel for the appellant again states that one of the appellants had died and prays for listing of the case after three weeks but as per the office report dated 03.09.2007, no steps have been taken by the appellants' counsel in compliance of the order dated 13.08.2007. Lastly, he has submitted that looking to the conduct of the appellants, the application is liable to be rejected. 5. It appears that this appeal is pending since 1978 before this Court. Lastly, he has submitted that looking to the conduct of the appellants, the application is liable to be rejected. 5. It appears that this appeal is pending since 1978 before this Court. The suit relates to the year 1972, which was decided by the court of Munsif, Pratapgarh by judgement and order dated 13.11.1976, which was challenged in First Appeal No.89 of 1977 and the First Appeal was allowed by judgment and order dated 21.08.1978, against which, this Second Appeal is pending. 6. It is not disputed that so many other counsels were also engaged in this case but hearing could not take place. As far as the death of the then counsel Sri R. P. Lal is concerned, he died in the month of August, 2013 as per the affidavit filed in support of the application itself, and the appeal was dismissed for want of prosecution way back on 16.03.2012, which shows that the then counsel Sri R. P. Lal had died after almost one and a half years form the date of the dismissal of the appeal. Therefore, the grounds of death of Sri R. P. Lal, the earlier counsel, do not appear to be convincing. 7. The next submission of the applicants' counsel regarding the knowledge of the dismissal of the appeal is that when the respondents started to take possession over the land in dispute, then it has came into the knowledge of the applicant by some "reliable person" that the aforesaid second appeal has been dismissed for want prosecution, but in the affidavit, the name or identity of the "reliable person" has not been disclosed. Thus, the said knowledge through the alleged "reliable person" is just to create a ground for recall the order dated 16.03.2012, otherwise there was no valid reason to disclose the name and identity of the said "reliable person." 8. I also find substance in the submissions of the learned counsel for the respondents that the then counsel for the appellants had informed the court regarding the death of the respondent no.1-Bhagwati Din on 07.05.2007 and thereafter the death of appellant on 13.08.2007 but as per office report dated 03.09.2007, the appellants' counsel had not filed any steps, which goes to show the negligence on the part of the appellants. 9. 9. A perusal of the order-sheets also goes to show that on 07.05.2007, learned counsel for the appellants had informed the court about the death of respondent no.1 - Bhagwati Din but no steps for his substitution has been taken. 10. It is proposition of law that any party claiming the benefit of Section 5 of Indian Limitation Act has to explain the delay on day today basis to show sufficient cause. In this case, the cause of death of the then counsel Sri R.P. Lal is not a sufficient cause because he had died after one and half years of the dismissal of the appeal. 11. As far as the information through some "reliable person" is concerned, identity of the said reliable person or the affidavit of the said reliable person has also not been filed. It has also not been stated in the affidavit that when the alleged "reliable person" had given the information about the dismissal of the appeal. In this way, the ground of the alleged "reliable person" is also not reliable. 12. The matter was remanded by Hon'ble the Apex Court by order dated 01.12.1994 and after that, the appellant had not taking any interest in the disposal of the appeal at an early date, which is pending since 1978. The repeated dismissals of the appeal for want of prosecution on the part of the appellants and not moving any substitution application even after informing the court further goes to show that the appellants are not interested in deciding the matter on merits. 13. It has also been submitted that one of the appellant is himself an advocate of this court, therefore, the appeal should be decided on merits, otherwise, he shall be dispossessed and shall have no place for residence. 14. When one of the appellant is already an advocate of this Court, then in these circumstances, the appellants should have remained more vigilant but it appears that misusing the position of being an advocate of this Court, the pendency of this appeal has been made a tool to curtail the right of respondents, which is not permissible in law. An advocate of this court who is himself a party to the appeal cannot be regarded above the law. Law is equal for both the parties. Misuse of the position cannot be permitted. An advocate of this court who is himself a party to the appeal cannot be regarded above the law. Law is equal for both the parties. Misuse of the position cannot be permitted. Nothing has been shown as to why the substitution application were also not moved after giving statement in the Court. 15. For the facts and circumstances mentioned above, I do not find any sufficient ground to condone the delay in filing the application for recall of the order dated 16.03.2012. Therefore, the application for condonation of delay is rejected.? Consequently, the application for recall is also rejected.