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2017 DIGILAW 1632 (RAJ)

Nakshtra Singh v. Thakar Singh

2017-07-24

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT ORDER Virendra Kumar Mathur, J. - The appellants by way of application IA No. 539/2017, filed under Order 22 rules 4 & 9 CPC read with section 151 CPC, have submitted that respondent No. 1 Thakar Singh died on 28.09.2016 and the information was made by the respondents on 02.12.2016 by filing an application under Order 22, Rule 10A CPC. After getting the information, the appellants gathered information regarding legal representatives of the deceased respondent No. 1 Thakar Singh and the list of legal representatives of respondent No. 1 has been given in the application. 2. It was contended that all the legal representatives are major. It was also submitted that the fact about death of respondent No. 1 was communicated to appellants by their advocate but he was not available in his village Ramgarh, District Jaisalmer and on account of this, he was unable to receive the letters sent by the Advocate at his residential address. For this reason, delay has occurred in filing the application under Order 22, Rule 4 CPC. The present appeal is against judgment & decree dated 01.02.1997, which involves rights in the immovable property and by way of this decree, the suit under Specific Reliefs Act has been decided. Therefore, the application filed by the appellants deserves to be allowed, the abatement is to be set aside and the legal representatives of the deceased respondent No. 1 may be taken on record. 3. Along with this application, application IA No. 274/2017 has also been filed under section 5 of the Limitation Act and on the basis of averments made in that application, it is prayed that after condoning the delay, the application preferred under Order 22, Rule 4 CPC may be allowed. 4. On the averments made in the application and in the delay condonation application, the counsel for the appellants submitted that within the meaning of section 5 of the Limitation Act or under Order 22, Rule 9 CPC or in other similar provision, the court should receive liberal consideration so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to the party. In support of his contention, he cited the judgment of Hon''ble Supreme Court reported in AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu & others vs. Gobardhan Sao & others) . In support of his contention, he cited the judgment of Hon''ble Supreme Court reported in AIR 2002 SC 1201 (Ram Nath Sao alias Ram Nath Sahu & others vs. Gobardhan Sao & others) . He also referred to the judgment reported in 2015 Suppl. CCC 39 (SC): Banwari Lal (D) by Lrs & anr vs. Balbir Singh and contended that the delay in bringing on record the Lrs should be condoned. The procedure is meant only to facilitate the administration of justice and not to defeat the same. While further citing judgment reported in AIR 2009 Jharkhand 149: Satyanarayn Gope & ors vs. Santosh Kumar Yadav & ors , he contended that delay should be condoned in the interest of justice, considering the illiteracy and poverty among villagers. 5. Learned counsel for the respondents has not filed any reply to the applications but orally opposed the prayer of the appellants. Heard learned counsel for the parties. 6. The date of death of respondent was informed while filing an application under Order 22, Rule 10A CPC on 02.12.2016, along with Death Certificate. It was contended that during last nine months, the appellant was not residing in his village as he was working as labour in the fields situated in Miyon-ki-dhani, Sattarka-phanta, Ramgarh, District Jaisalmer. On account of this, he could not receive the communications sent at his residence. This was the reason that he could not take steps for bringing on record the legal representatives of respondent No.1 in time. No doubt, by way of this appeal the judgment & decree passed in a suit for specific performance is under challenge. Rights in the immovable property are involved in this case. In view of the observations made by Hon''ble Supreme Court in AIR 2002 SC 1201 and 2015 (Suppl) CCC 39 (SC) (supra), this is a fit case where delay in filing application for bringing the legal representatives of deceased party deserves to be condoned and the abatement is to be set aside. 7. Consequently, the application IA No. 274/2017 is allowed and the delay in filing the application for bringing legal representatives of deceased respondent No.1 is condoned. 7. Consequently, the application IA No. 274/2017 is allowed and the delay in filing the application for bringing legal representatives of deceased respondent No.1 is condoned. On the averments made in the application filed under Order 22 rules 4 & 9 CPC and the submissions made by the appellants, the application IA No. 539/2017 is accepted and the legal representatives of deceased respondent No.1, mentioned in the application, are ordered to be taken on record. 8. The counsel for the appellant shall file amended cause within a week.