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2016 DIGILAW 423 (RAJ)

Dinesh Chandra Sharma v. Amrat Ram

2016-03-16

P.K.LOHRA

body2016
JUDGMENT P.K. Lohra, J. Appellant-plaintiff has filed this appeal under Order 43, Rule 1 (e) CPC to assail the impugned order dated 24.11.2015 passed by the District Judge, Pratapgarh (for short, 'learned trial Court'), whereby his application under Order 22, Rule 4 as well as application under Section 5 of the Limitation Act was dismissed and the learned trial Court declined to set aside abatement of suit. 2. The facts, in brief, are that the appellant instituted a civil suit for specific performance of contract against the respondent Amrat Ram and one Rajesh for agricultural land of Aaraji No.822 measuring 0.16 hectare and Aaraji No.825 measuring 0.04 hectare. After submission of joint written statement by the respondent and Rajesh, Rajesh expired on 20.04.2015. The information about death of Rajesh was divulged by the counsel for the respondent before the learned trial Court on 07.07.2015. However, despite acknowledging the information, requisite application for bringing LRs of Rajesh on record was filed belatedly by the appellant on 05.11.2015 under Order 22, Rule 4 CPC. Besides that, an application under Section 5 of the Limitation Act for condonation of delay is also laid. Both the applications were contested by the respondent and a detailed replies to both the applications were filed. 3. Learned trial Court, after hearing the parties, has observed in the impugned order that reasons for condonation of delay are not convincing, as parties to the litigation are closely related as they are distant cousins. Learned trial Court has further noticed that despite acknowledging information about the death of Rajesh, appellant has not shown promptness in laying application for bringing his LRs on record. It is in that background, the prayer made in the application under Order 22, Rule 4 CPC as well as under Section 5 of the Limitation Act were declined and the entire suit was treated as abated. 4. Learned counsel for the appellant submits that there was hardly delay of 28 days' from the date of acknowledging information about death of Rajesh and therefore, learned trial Court ought to have exercised its discretion to condone the delay and set aside the abatement of appeal and to take legal heirs of Rajesh on record. Mr. Arora would contend that the Court, while exercising its power under Order 22, Rule 4 CPC, is required to adopt pragmatic rather than pedantic approach for doing substantial justice in the matter. Mr. Arora would contend that the Court, while exercising its power under Order 22, Rule 4 CPC, is required to adopt pragmatic rather than pedantic approach for doing substantial justice in the matter. In support of his arguments, Mr. Arora has placed reliance on the judgment of Supreme Court in case of Banwari Lal (D) By LRs. & another v. Balbir Singh reported in AIR 2015 SC 3573. 5. Per contra, learned counsel for the respondent submits that learned trial Court has exercised its discretion judiciously and therefore, the impugned order is not liable to be interfered with. Mr. Purohit submits that it is a clear case of gross negligence on the part of appellant in not laying application within time and therefore, the discretion exercised by the learned trial Court cannot be categorised as perverse warranting interference in this appeal. 6. I have heard learned counsel for the parties and perused the impugned order. 7. Considering the fact that the suit filed by the appellant was for specific performance of contract and the signatory to the contract are both respondents-Amrat Ram and Rajesh, then after his death, how the suit has abated wholesomely is not at all clear from the impugned order. Learned trial Court has not at all cared to address on this issue. That apart, while considering application under Order 22 Rules 3 and 4 CPC, the approach of the Court is required to be pragmatic for doing substantial justice in the matter and not pedantic or purely idealistic to non suit a litigant on some niceties or hyper technicalities. The delay, which has occasioned in the instant case, for bringing LRs of deceased Rajesh on record is hardly for 28 days' and requisite application is also filed by the appellant. Therefore, learned trial Court ought to have exercised its discretion judiciously to farther the interest of justice. 8. It is trite that while construing sufficient cause under Section 5 of the Limitation Act, the approach of the Court is required to be liberal and if reasons are available for condonation of delay, discretion is to be exercised in favour of an incumbent seeking condonation of delay. The Apex Court in case of Banwari Lal (supra) has also emphasised for having a liberal approach in the matter of setting aside abatement or taking legal representatives of a deceased litigant on record. The Apex Court in case of Banwari Lal (supra) has also emphasised for having a liberal approach in the matter of setting aside abatement or taking legal representatives of a deceased litigant on record. By observing that provisions are not penal in nature and being rule of procedure the substantial rights of the parties cannot be defeated by the Court with pedantic approach. The Court held :- "Provisions of Order 22, CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 : ( AIR 2003 SC 2588 ), a Five Judge Bench of this Court held as under:- "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22, CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even de hors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardise an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice…" (Emphasis added)" 9. Well it is true that the learned trial Court has not examined the matter in right perspective and conversely it is also an admitted fact that there was some delay on the part of appellant in laying application under Order 22, Rule 4 CPC and therefore, the respondent is liable to be compensated by imposing a reasonable cost on the appellant. 10. Taking into account the nature of the suit and the valuation thereof, it would be just and appropriate to saddle appellant with the cost of Rs.2,000/-for setting aside abatement of suit. 11. Accordingly, the instant appeal is allowed. The impugned order dated 24.11.2015 passed by learned trial Court is quashed and set aside and the application for condonation of delay as well as application under Order 22, Rule 4 CPC are allowed. This would entail quashment of the order for abatement of the suit also. The legal representatives of Rajesh, as mentioned in the application, are allowed to be substituted in his place as defendant subject to payment of cost of Rs.2,000/-. This would entail quashment of the order for abatement of the suit also. The legal representatives of Rajesh, as mentioned in the application, are allowed to be substituted in his place as defendant subject to payment of cost of Rs.2,000/-. The appellant may deposit the requisite amount of cost before the learned trial Court within a period of fortnight.