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2017 DIGILAW 2119 (JHR)

Pachkali Devi v. Salik Tiwari

2017-12-08

AMITAV K.GUPTA

body2017
ORDER : 1. This appeal is directed against the order dated 13.7.2006, passed in Title Appeal No. 20 of 2003 whereby the Appellate Court has rejected the application under Order XXII, Rule 4, CPC holding that the appeal has abated as a whole as the appellant has not filed any application for setting aside the abatement. 2. Learned counsel for the appellant, while assailing the impugned order, has canvassed that respondent Nos. 7, 8, 10 and 18 being purchasers of the part of the suit property could not have a better title than those of the vendors. That the appeal had been preferred against the decree passed in partition suit and the other respondents have surviving right in the suit property. Learned counsel while referring to the decision of the Supreme Court in the case of State of Andhra Pradesh through Principal Secretary and others v. Pratap Karan and others, (2016) 2 SCC 82 , has submitted that in Para 40, of the said judgment it has been observed that in the event to death of any of the plaintiff, the estate is fully and substantially represented by the other sharers, as owners of the suit property, therefore, due to non-substitution of the legal representatives of deceased plaintiff, who died during pendency of the appeal, the entire appeal cannot be held to have been abated. It is argued that the settled proposition applies also to a case where the respondents who died and have not been substituted but other respondents are having their own right and interest and share in the suit property, hence, the appeal as a whole cannot abate. It is argued that this Court, in the case of Ajay Kumar Soni @ Ajay Soni and others v. Abdul Rashid and others, (2017) 4 JBCJ 62, has reiterated this settled proposition propounded by the Supreme Court in the case of Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 and observed that the appeal cannot abate as a whole when the right and interest of other parties to protect and sue survives. It is urged that in view of the settled principle, the impugned order is not substantiate in law or on facts and is fit to be set aside. 3. Mr. It is urged that in view of the settled principle, the impugned order is not substantiate in law or on facts and is fit to be set aside. 3. Mr. Satish Kumar Keshri learned counsel on behalf respondents, has contended that it would be evident that the appellant had not filed any petition for condonation of delay, neither had they filed any petition for setting aside the abatement. Learned counsel has referred to the decision in the case. of Union of India v. Ram Charan (deceased) through his legal heirs representatives, AIR 1964 SC 215 , and submitted that the Apex Court has observed that the period of limitation starts running from the date of death of appellant or respondents and Article 120 of the Limitation Act prescribes 90 days for filing substitution petition which can in certain circumstances be extended by 60 days. It is argued that it would be evident from the impugned order that no satisfactory explanation or sufficient cause was made out by the appellant with respect to the delay in filing the substitution petition after a period of two (2) and twelve (12) years from the date of death of the respective respondents. It is argued that the impugned order is in accordance with law and does not require any interference by this Court. 4. Heard. It is pertinent to reiterate that Order XXII, CPC has been devised with the object for the Court to do real, effective and substantial justice by ensuring the continuation and culmination of the dispute by effective adjudication and not to retard the further progress of the proceeding and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and are not lost forever due to the death of one or the other party in the proceeding. 5. Evidently the appeal had arisen out of the decree passed in a partition suit and right to sue survives on each of the co-sharers-respondents. The respondents who were not substituted within the prescribed period were purchasers who had derived their title and interest by virtue of the title vested in the vendors, i.e., some of the purchaser/respondents who are the co-sharers. The respondents who were not substituted within the prescribed period were purchasers who had derived their title and interest by virtue of the title vested in the vendors, i.e., some of the purchaser/respondents who are the co-sharers. It is well-settled that the Civil Procedure Code is a handmaid of justice and it is devised to prevent miscarriage of justice and not to hamper the cause of justice as has been observed by the Apex Court in the case of Kailash v. Nanhku, (2005) 4 SCC 480 in para 28 which is as follows : "28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of process-sual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by the express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice...." Likewise it has also been held in the case of State of Punjab v. Shamlal Murari, (1976) 1 SCC 719 in para 8 which reads as under : "8. ......It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, the procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, Courts are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time...." In the attending facts and circumstances, the order of the Court below that the appeal has abated as a whole is in the teeth of the settled legal position. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time...." In the attending facts and circumstances, the order of the Court below that the appeal has abated as a whole is in the teeth of the settled legal position. The appeal has abated as against the respondents whose legal heirs were not brought on record within the prescribed period, consequently, the impugned order that the appeal has abated as a whole is, hereby, set aside and modified to the extent accordingly. Title appeal No. 20 of 2003 is restored as against the other respondents. 6. The Court below shall hear and decide the Title Appeal No. 20 of 2003 on its own merit. Since the case is of the year 2003, accordingly, the Court below shall ensure expeditious disposal of the suit/ appeal. Both the parties shall co-operate in expeditious hearing and disposal of the appeal. The Court below shall ensure that no unnecessary adjournments is sought for by the parties and decide the appeal within one year from the date of production/ receipt of a copy of this order. 7. Interlocutory Applications are, hereby, dismissed as not pressed. 8. It is made clear that this Court has not expressed any view or opinion on merit of the case and the Court below should not be influenced by any observation made hereinabove. 9. In the result the appeal stands allowed. Appeal allowed.