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2020 DIGILAW 663 (HP)

State Of Himachal Pradesh v. Brij Pal Singh

2020-09-30

SURESHWAR THAKUR

body2020
JUDGMENT Sureshwar Thakur, J. - The demise, of, one Brij Pal Singh, arrayed as sole respondent, in RFA No. 36 of 2015, occurred on 31.1.2017, as becomes unraveled by paragraph-3, of, CMP(M) No. 554 of 2020, hence his demise occurred during the pendency, of, the extant appeal, before this Court. On 7.8.2018, an intimation was made to this Court, vis- -vis, the demise, of, the afore, occurring, during the pendency, of, the extant appeal, before this Court, and, on the afore date, an order was made upon the learned Additional Advocate General, to take requisite steps, for begetting his substitution, by his LRs. However, since then, upto 3.10.2019, no steps were taken, for the afore purpose, by the learned Addl. A.G., and, hence on 3.10.2019, an order was made, qua, for want, of, the afore steps, becoming taken, the appeal being dismissed for non-prosecution. Dehors, the afore, CMP(M) No. 554 of 2020, CMP(M) whereof, is, an application, for condoning, the, afore delay, becomes instituted, before this Court, and therewith becomes appended, an application, cast under the provisions, of, Order 22 Rule 4 and 9 CPC, (a) with a prayer therein, for, after setting aside abatement, if any, and thereafter, for, ordering, the, bringing on record, the, LRs, of, the afore deceased, by his enumerated therein LRs, namely one Aditya Singh, and, one Vikram Singh. Consequently, faced with the afore made endeavour, of, the appellant, conspicuously, after an order, becoming recorded, on, 3.10.2019, where through, for want, of, the afore steps, becoming taken, despite, several opportunities, becoming afforded, to, the appellant, the apposite appeal became dismissed, for non-prosecution, (ii) thereupon, the effects, of, the afore made order, is, to be tested with, vis- -vis, (a) the mandate, embodied in Order 17 Rule 3 CPC, provisions whereof are extracted hereinafter: "Court may proceed notwithstanding either party fails to produce evidence- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, (the Court may, notwithstanding such default) (a)If the parties are present, proceed to decide the suit forthwith, or, (b)If the parties are, or any of them is, absent, proceed under rule 2. (b) inasmuch, as, whether the afore mandate, becomes applicable, to, the heareat rescontroversia, and, whether, thereupon the relief embodied in the afore CMP(M)s,hence for setting aside, the abatement, if any, as may occur thereat, becoming validly strived therethrough(s), by the applicants/appellants. Foremost, the afore dismissal, of, the apposite RFA, hence for nonprosecution, for want of afore imperative steps, being taken, despite several opportunities becoming afforded to the appellant, may not, perse invite the mandate, of, Order 17 Rule 3 CPC, (c) inasmuch as, both clause(s) (a) and (b) thereof, rather inviting attraction(s), (d) upon occurrence, of, evident, failing or wanting(s), of, the litigants' concerned, vis-a-vis, the ordained acts or steps, as, become enumerated, in the opening thereof, (e) and whereafter, the Court becomes enjoined to, in the presence of the parties, hence make a decision, upon the lis, or if all the parties, or, one of them, is, absent, to proceed to recourse the mandate, cast in Order 17 Rule 2 of CPC, the provisions whereof, are, extracted hereinafter: ""2. Procedure if parties fail to appear on day fixed Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by order IX or make such other order as it thinks fit." inasmuch as, its recoursing(s), the mandate of Order 9, Rule 3 CPC, provisions where of are extracted hereinafter: "3. Where neither party appears, suit to be dismissed- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed." rather contemplating the dismissal, of, the suit in default, or the errant litigant, being proceeded against exparte, as the case may be. Where neither party appears, suit to be dismissed- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed." rather contemplating the dismissal, of, the suit in default, or the errant litigant, being proceeded against exparte, as the case may be. However, since the completion(s), of, the, array, or litigant(s), is, imperative, for hence the mandate, of, clause-2, borne in Order 17, Rule-3 CPC, becoming aroused, (f) whereas, there being an in-complete array, of, litigants, rather thereat inasmuch as one, of, the litigants, expiring, during the pendency, of, the extant RFA, before this Court, (g) thereupon, the mandate borne in clause-b, of Order 17 Rule 3 CPC, not warranting application, (h) nor also with this Court, not proceeding to, on 3.10.2019, decide the extant RFA, as prior thereto, the, statutory, borne therein, hence condition, inasmuch, as, of, the parties, to the lis, being present thereat, is, un- accomplished, (i) inasmuch as, thereat, there is a palpable in-complete array, of, litigants, in the array, of respondents, given the demise, of one Brij Pal Singh, occurring during the pendency, of, the appeal, before this Court, (j) thereupon, the, mandate borne, in Order 9 Rule 3, also remains unaroused, hence hereat. 2. Be that as it may, a reading, of, the enshrining(s), borne in Order 22 Rule-4 CPC, provision(s), whereof are extracted hereinafter; "4. Procedure in case of death of one of several defendants or of sole defendant- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place (5) Where- (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefore in the limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved)" (a) unveils, vis- -vis, the demise of any party, to, the lis, perse not, casting the ill-sequel, of, the suit abating, if the right to suit survives. However, an appositely prescribed period, of, limitation, hence for begetting the substitution, of, the deceased litigant, by his LRs, becomes rather, the, imperatively enshrined sine-qua-none, for, the afore recoursings, hence becoming accepted by the the Court(s), (b) and, yet, when the apposite application, is, not preferred within the prescribed period, of, limitation, (c) thereupon, the suit proceedings, or the suit, or the appeal, as the case may be, ipso-facto, on expiry thereof, all becoming deemed to abate, (d) unless the litigant seeking apt substitution, outside the period of limitation, makes in his application, tangible and good cause, hence within the ambit, of, clause-5 of Order 22 Rule 4 CPC, rather in-explication, of, the happened delay, (d) whereupon, the, apposite abatement, can be ordered, to, be set aside, (e) besides an order, of, substitution can become made, on, the apposite application, even though, purportedly instituted beyond the prescribed period, of, limitation. Since, the combined effect, of, non-applicability, hereat, of, the mandate borne in Order 17 Rule 3 CPC, and, of, the order made, on 3.10.2019, (f) is, obviously, qua the afore order being deemed to be order, of, abatement, of, the RFA (g) thereupon with the extant application(s) becoming cast, within the mandate of sub-Rule-5, of, Order 22 Rule 4 CPC, and, when each of the afore application(s), bring forth, a, sound explication, for the occurrence, of, the apposite delay, thereupon, after condoning the apposite delay, this Court deems it fit to set aside the order, of, abatement, of, the appeal, hence, for want of, the, afore strivings being earlier made, and, as became rendered, on 3.10.2019. (h) Moreover, this Court also, orders for substitution, of, the deceased by his LRs, being made , in the array of respondents. The application(s) stand disposed of. 3. In aftermath, the genre of, the afore order, attracts thereon, an apt construction, vis- vis, it being an order, of, abatement, of, an appeal, and thereons, the, mandate, of, Rule4, of, order 22, being applicable. 4. Necessary corrections be carried out in the memo of parties by the Registry of this Court. Notice be issued to the newly added respondents, on steps being taken within four weeks, returnable within three weeks, thereafter.