Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2671 (RAJ)

Sanwarmal Saini v. Jugal Kishore Jhunjhunuwala

2019-10-15

PRAKASH GUPTA

body2019
JUDGMENT Prakash Gupta, J. - This civil miscellaneous appeal under Order 43 Rule 1(c) CPC has been filed by the appellant/plaintiff against the order dated 29.05.2017 passed by the Additional District Judge, Chirawa, District Jhunjhunu (for short 'the trial Court) whereby the said Court dismissed the applications filed under Order 22 Rule 4 & 9 CPC and under Section 5 of the Limitation Act and suit has been abated against the defendant No.l. 2. Brief facts giving rise to the present miscellaneous appeal are that the plaintiff-appellant filed a suit for specific performance of contract, cancellation of sale deed dated 29.10.2005 and perpetual injunction before the trial Court. During the pendency of the suit an application was filed by the defendants No.2 and 3 on 30.10.2015stating therein that the defendant No.1 had expired on 17.09.2013. Since the appellant/plaintiff did not bring on record the legal representatives of the defendant No.l, the suit stands abated. Thereafter, an application under Order 22 Rule 4 CPC along with an application under Section 5 of the Limitation Act were filed by the plaintiff-appellant on 19.08.2016 wherein it was stated that the deceased-defendant No.l was residing at Ranchi and therefore, the plaintiff was not aware about the death of defendant No.l. It was also stated that the legal representatives of the defendants No.l were also residing at Ranchi and hence, the plaintiff could not gather the information regarding the legal representatives of the defendant No.l. The plaintiff gathered the particulars of the legal representatives of the deceased-defendant No.l only on 15.08.2016 and prior to 15.08.2016, plaintiff was not having any information regarding the name and addresses of the legal representatives of defendant No.l. Therefore, no application could be filed to bring on record the legal representatives of the defendant No.l. Thus, the suit could not be abated and if treated as abated, the abatement be set aside and the legal representatives of the defendant No.l be taken on record. The application was resisted by the defendants No.2 and 3 by filing reply wherein it was stated that the application has been filed after a delay of more than two years. The suit therefore stands abated against the defendant No.l. The information regarding death of defendant No.l was provided on 30.10.2015 despite that no application was filed for bringing legal representatives of defendant No.l on record. 3. The suit therefore stands abated against the defendant No.l. The information regarding death of defendant No.l was provided on 30.10.2015 despite that no application was filed for bringing legal representatives of defendant No.l on record. 3. After hearing learned counsel for the parties, learned trial Court dismissed the application. Hence, this miscellaneous appeal. 4. On behalf of the plaintiff/appellant, it was argued that the Court below took a pedantic approach of the matter whereas in the matter of abatement of the suits, a liberal approach ought to be taken. The parties to the suit neither belong to the same family nor are they closely related. The appellant came to know about the death of the defendant No.1 only on 30.10.2015, through the application filed on behalf of the defendant. Prior to it the appellant had no knowledge of the fact that the defendant No.l had expired on 17.09.2013. In the application dated 30.10.2015, the defendant had not mentioned the names and other particulars of the legal representatives of the defendant No.l. The legal representatives of defendant No.l are residents of Ranchi and their whereabouts were not known to the appellant before August, 2016 and immediately thereafter, he moved an application on 19.08.2016 for bringing legal representatives of defendant No.l on record. Therefore, there was no intentional delay in submitting the application for bringing the said legal representatives on record. The Court below in the facts and circumstances of this case, ought to have exercised its judicial discretion in setting aside the abatement. Therefore, a prayer was made to accept this writ petition and to set aside the abatement. In support of his contention, learned counsel for the appellant has placed reliance upon the following judgments: N. Balakrishnan Vs. M. Krishnamurthy reported in, (1998) 7 SCC 123 , Bhagwan Swaroop and Others Vs. Mool Chand and others reported in, AIR 1983 SC 355 , Ram Nath Sao @ Ram Nath Sahu and Ors. Vs. Gobardhan Sao and Ors. reported in, (2002) 3 SCC 195 , Sardar Amarjit Singh Kalra (dead) by LRs and Ors. Vs. Pramod Gupta (Smt.) (dead) by LRs and Ors. reported in, (2003) 3 SCC 272 , Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Ors. reported in, (1987) 2 SCC 107 , N. Balakrishnan Vs. M. Krishnamurthy reported in, (1998) 7 SCC 123 , Mithailal Dalsangar Singh and Ors. Vs. Annabai Devram Kini and Ors. Vs. Pramod Gupta (Smt.) (dead) by LRs and Ors. reported in, (2003) 3 SCC 272 , Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Ors. reported in, (1987) 2 SCC 107 , N. Balakrishnan Vs. M. Krishnamurthy reported in, (1998) 7 SCC 123 , Mithailal Dalsangar Singh and Ors. Vs. Annabai Devram Kini and Ors. reported in, (2003) 10 SCC 691 . 5. On the other hand, learned counsel for the respondents has supported the impugned order dated 29.05.2017 and has placed reliance on the following judgments: Balwant Singh Vs. Jagdish Singh and Ors. reported in, (2010) 8 SCC 685 , Bhubaneswari Bewa and others Vs. State of Orissa and another reported in, AIR 1979 Orissa 171, Abdul Rasid Khan Vs. S.K. Bahimtulla and Others reported in, AIR 1979 Orissa 175, Lanka Venkateswarlu (dead) by LRs Vs. State of Andhra Pradesh and Others reported in, (2011) 4 SCC 363 . 6. I have considered the rival submissions made by the learned counsel for the parties and perused the material available on record. 7. It is trite that in deciding the application for setting aside the abatement of suit and condonation of delay in taking steps for substitution of the legal representatives, a liberal approach should be taken so that substantial justice may be done between the parties. In the matter of Ram Nath Sao (supra) a delay of 5 years in substituting the legal representatives was condoned. In the case of Sardar Amarjit Singh Kalra (supra), the Hon'ble Supreme Court held that in case of death of some of the appellant during pendency of the appeal, Court should allow the application for bringing their legal representatives on record, even if filed belatedly. In the case of N. Balakrishnan (supra), it was held by the Hon'ble Supreme Court that in the absence of any mala fide, the Court should normally condone the delay. 8. Keeping the above principle in mind, this Court is of the opinion that the plaintiff-appellant was neither aware of the fact that defendant No.1 had expired on 17.09.2013 nor had he committed any intentional delay in filing the application after 30.10.2015. Since, the legal representatives of deceased-defendant No.l were residing elsewhere, it was obvious for the plaintiff to have taken sometime in knowing the names and other details of legal representatives of defendant No.1. Since, the legal representatives of deceased-defendant No.l were residing elsewhere, it was obvious for the plaintiff to have taken sometime in knowing the names and other details of legal representatives of defendant No.1. The plaintiff-appellant was not going to gain anything by moving the application belatedly. No negligence or mala fide can be attributed to the plaintiff in this regard. In such circumstances, the Court below committed gross illegality in dismissing the application. 9. In light of the above discussion, the miscellaneous appeal is allowed. Consequently, the impugned order dated 29.05.2017 passed by the Additional District Judge Chirawa, District Jhunjhunu is set aside and the applications filed under Order 22 Rule 4 & 9 CPC and under Section 5 of the Limitation Act are allowed, delay in filing of application under Order 22 Rule 4 & 9 CPC is condoned. Abatement is set aside. Legal representatives of the defendant No.l are taken on record.