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2018 DIGILAW 281 (RAJ)

INDERJEET SINGH v. AMRIT LAL

2018-01-22

ARUN BHANSALI

body2018
ORDER : Arun Bhansali, J. This application under Order XXII Rule 9 CPC read with Section 151 CPC has been filed for setting aside abatement of appeal and for recalling of the order dated 19.03.2014 passed by this Court in SBCFA No. 139/1989. 2. The first appeal was filed by the applicant/appellant/plaintiff aggrieved against the judgment and decree dated 15.04.1989 passed by the Additional District Judge No.1 Udaipur, whereby the suit filed by the applicant for specific performance of contract has been rejected. 3. The appeal was admitted on 23.01.1990, whereafter all the respondents named therein were served by 4.08.1997; on 8.05.2001, the matter was sent for preparation of paper book; on 07.07.2009, the office noticed that preparation of paper book was not required. 4. Whereafter the appeal came up for hearing before the Court on 20.09.2011 and the matter kept getting adjourned on account of absence of learned counsel for the appellant. 5. On 06.02.2014 it was noticed by the Court as under :- "Mr. Dadhich, learned counsel appearing for the respondent submits that respondent No.2 Smt. Chanda Devi has expired, however, date of death is available, respondent No.3/1 has expired on 13.04.2001, respondent No. 3/4 has expired on 25.07.2002, respondent No.4/1 has expired on 10.09.2001 and respondent No.4/4 has expired on 06.02.2003 and, therefore, the appeal has abated. Learned counsel for the appellant prays for time to take steps in this regard. List after four weeks.'' 6. Whereafter on 19.03.2014 on noticing the earlier order sheet dated 6.02.2014 and when none was present for the appellant, the following order was passed :- "It was noticed on 06.02.2014 that the respondent Nos.3/1, 3/4, 4/1 and 4/4 had expired almost 11-13 years back and no steps were taken and time was granted to take steps, if any. No steps have been taken for bringing on record that legal representatives of the deceased respondents so far. Therefore, the appeal is dismissed as having abated.'' 7. Whereafter S.B. Civil Misc. Application. No steps have been taken for bringing on record that legal representatives of the deceased respondents so far. Therefore, the appeal is dismissed as having abated.'' 7. Whereafter S.B. Civil Misc. Application. 156/2015 was filed on 27.04.2015 by the appellant under Order XXII Rule 9 CPC read with Section 151 CPC for setting aside abatement along with the application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the application as well as an the application under Order XXII Rule 4 CPC for substitution of legal representatives of respondents No. 3/1, 3/4, 4/1 and 4/4 and when the said Misc. Application came up before a Co-ordinate Bench of this Court, it was inter alia observed as under :- "1. The present Misc. Application has been filed under Order 22 Rule 9 read with Section 151 CPC of the Code of Civil Procedure by the applicant-plaintiff seeking setting aside of the abatement of appeal made by the order dated 19.03.2014 passed by the co-ordinate Bench of this Court {Hon'ble Mr. Justice Arun Bhansali} by which, the first appeal of the plaintiff-applicant-Inderjeet Singh has been dismissed as having abated. 2. Today, the learned counsel, Mr. Manish Shishodia, appearing for the applicant submitted that since the present Misc. application essentially amount to recall/review of the previous order dated 19.03.2014, he may be permitted to withdraw the present Misc. Application with a liberty to file appropriate application seeking recall/review of the questioned order dated 19.03.2014. 3. Having regard to the circumstances of the case, the applicant-Inderjeet Singh is permitted to withdraw the present Misc. Application with a liberty to move appropriate application seeking recall/review of the order in question dated 19.03.2014. 4. Accordingly and in view of the above, the present Misc. Application moved on behalf of the applicant-Inderjeet S/o Ratan Lal Karnawat is dismissed as withdrawn with the liberty as prayed for." 8. Whereafter the present Misc. Application has been filed. Notices of the application were issued to the respondents though most of the respondents was served few of them i.e. 3/2, 3/3, 3/5 and 3/6 were served and a prayer was made for dispensing with the service on the said respondents. Whereafter the present Misc. Application has been filed. Notices of the application were issued to the respondents though most of the respondents was served few of them i.e. 3/2, 3/3, 3/5 and 3/6 were served and a prayer was made for dispensing with the service on the said respondents. By order dated 15.12.2017, the names of respondent No. 3/2, 3/3, 3/5 and 3/6 were ordered to be deleted at the risk and consequence of the applicant and it was ordered that the effect of such deletion would be examined at the time of hearing of the Misc. Application. 9. It is submitted by learned counsel for the applicant that the appeal was lying in 'due course' during which period, the respondent No. 3/1, 3/4, 4/1 and 4/4 expired, where after though the appeal was getting listed before the Court for hearing, the said fact was never disclosed by the learned counsel appearing for the respondents to the then learned counsel appearing for the appellant and the said fact was brought to the notice of the Court for the first time on 06.02.2014. 10. When the appellant visited the Court and met the counsel in relation to some other matter and was informed about the fact of the appeal having been dismissed as abated on 19.03.2014, the appellant collected the information and has filed the application on 24.04.2015. It is submitted that the applicant was aware of the fact of death of respondents No. 3/1, 3/4, 4/1 and 4/4, which fact was also disclosed by counsel appearing for the respondent before this Court in the pending first appeal and as soon as the information in this regard came to be notice of the appellant, steps have been taken. 11. In relation to respondent No. 3/2, 3/3, 3/5 and 3/6, it is submitted that the said respondents even otherwise were held by the trial Court as necessary parties to the suit as the respondent No.3 therein was only predecessor in title and the relief of specific performance was being sought from defendant No. 1, 2 and 4 and, therefore, the deletion of the said respondent from the array of parties in the present application would be of no effect. 12. 12. It was prayed that the delay in filing the application under Order XXII Rule 9 CPC be condoned, abatement be set aside and the legal representatives be ordered to be taken on record. Another application has been filed seeking correction in the name of respondent No.2 from Chanda Devi to Chelna Devi. 13. I have considered the submissions made by learned counsel for the appellant and have perused the material available on record. 14. From perusal of the record of the first appeal, it is apparent that the respondents were served by the year 1998, the matter was resting in 'due course' after initial charges for preparation of paper book were deposited by learned counsel for the appellant in the year 2001. 15. The matter thereafter came up for hearing for the first time on 20.09.2011 and kept on getting adjourned from time to time, whereafter for the first time on 6.02.2014 it was informed that respondent No. 3/1 had expired on 13.01.2001, 3/4 on 25.07.2002, 4/1 on 10.09.2001 and 4/4 on 6.02.2003 and when on 19.03.2014 no one was present for the appellant and steps had been taken for bringing on record the legal representatives, the appeal was dismissed as having abated,. 16. This Court in Ram Chand v. LRs of Motilal : S.B. Civil Second Appeal No. 314/1999 decided on 16.08.2016, after thoroughly examining the issue of delay in bringing on record the legal representatives in a case which is lying in due course, has inter alia laid down as under :- "The circumstances, which have occurred in the present case, i.e. while the matter is resting for hearing in due course, the death of a party takes place but steps for substitution are taken in time, is a common phenomenon, mostly in cases where the parties are much aware about the legal requirements and specially those parties, who have one off litigation before the Court. Such parties are mostly unaware of the requirement of filing application for bringing on record the legal representatives of appellant/respondent within specified period if the death occurs during the pendency of the appeal when the same is lying in due course. The parties usually don't approach the counsel being unaware of the requirement and it is only when the matter comes up for hearing and the counsel contacts the party that the fact of death of the parties is disclosed. The parties usually don't approach the counsel being unaware of the requirement and it is only when the matter comes up for hearing and the counsel contacts the party that the fact of death of the parties is disclosed. The said aspect was considered by Hon'ble Supreme Court though in the context of bringing on record the legal representatives of respondent and the appellant in the case of Perumon Bhagvathy Devaswom (supra), wherein, inter alia, it was held as under :- "8. The principles applicable in considering applications for setting aside abatement may thus be summarized as follows :- (i)........................... (ii)............................ (iii)............................. (iv).............................. (v) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is done. When nothing is required to be done, courts do expect the appellant to be diligent. Where an appeal is admitted by the High Court and is expected to be listed for final hearing for a few years, an appellant is expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. 9. Let us next also refer to some of the special factors which have a bearing on what constitutes sufficient cause, with reference to delay in applications for setting aside the abatement and bringing the legal representatives on record. 10. The first is whether the appeal is pending in a court where regular and periodical dates of hearing are fixed. There is a significant difference between an appeal pending in a subordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as 'adjournment of hearing'. There is a significant difference between an appeal pending in a subordinate court and an appeal pending in a High Court. In lower courts, dates of hearing are periodically fixed and a party or his counsel is expected to appear on those dates and keep track of the case. The process is known as 'adjournment of hearing'. In fact, this Court in Ram Charan (supra) inferred that the limitation period for bringing the legal representative might have been fixed as 90 days keeping in mind the adjournment procedure: "The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party's absence." In contrast, when an appeal is pending in a High Court, dates of hearing are fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more). When the appeal is admitted by the High Court, the counsel inform the parties that they will get in touch as and when the case is listed for hearing. There is nothing the appellant is required to do during the period between admission of the appeal and listing of the appeal for arguments (except filing paper books or depositing the charges for preparation of paper books wherever necessary). The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. The High Courts are overloaded with appeals and the litigant is in no way responsible for non-listing for several years. There is no need for the appellant to keep track whether the respondent is dead or alive by periodical enquiries during the long period between admission and listing for hearing. When an appeal is so kept pending in suspended animation for a large number of years in the High Court without any date being fixed for hearing, there is no likelihood of the appellant becoming aware of the death of the respondent, unless both lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent." (Emphasis Supplied)" 17. In view of the above circumstances, though the delay on face may appear to be undue, the same is required to be condonded. 18. So far as the deletion of names of respondents No. 3/2, 3/3, 3/5 and 3/6 by order dated 15.12.2017 and its effect is concerned, a perusal of the judgment passed by the trial court indicates that trial court has framed issue No.8 as to whether defendant No.3 was a necessary party and came to the conclusion that as the said defendant was only predecessor in interest, who had already transferred the land, he was a necessary party to the suit. In view thereof, the deletion of names of respondents No. 3/2, 3/3, 3/5 and 3/6 in the present application is of no consequence. 19. In view of the above fact situation and the law laid down by this Court in the case of Ram Chand (supra) the application filed by the petitioner seeking condonation of delay in filing the application under Order XXII Rule 9 CPC is allowed and delay in filing the application is condoned. The application under Order 22 Rule 9 CPC for setting aside abatement is allowed. The abatement and consequent dismissal of appeal by order dated 19.03.2014 is set aside. 20. The application filed by the applicant under Order XXII Rule 4 CPC is allowed and the legal representatives of respondent No.3/1, 3/4,4/1 and 4/4 as indicated in the application are taken on record, amended cause title filed by the appellant is also taken on record. 21. 20. The application filed by the applicant under Order XXII Rule 4 CPC is allowed and the legal representatives of respondent No.3/1, 3/4,4/1 and 4/4 as indicated in the application are taken on record, amended cause title filed by the appellant is also taken on record. 21. So far as the application filed for correcting the name of respondent No.2 is concerned, the same in view of the name indicated in the judgment passed by the trial Court, is also permitted to be corrected. The said aspect be reflected in the amended cause title filed by the appellant. 22. All the pending applications stand disposed of.