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2022 DIGILAW 1544 (RAJ)

Parasram v. Dharma Singh

2022-05-12

SUDESH BANSAL

body2022
JUDGMENT 1. It is informed that during course of this appeal, appellant No.2 Lala Ram has passed away on 16.09.2019. His natural heirs have moved an application (I.A.No.1/2022) under Order 22 Rule 3 CPC alongwith an application (I.A.No.2/2022) under Section 5 of the Limitation Act and application under Order 22 Rule 9 CPC, for seeking their substitution in place of appellant No.2 and for condoning the delay as also for setting aside the abatement of appeal. 2. It has been stated that applicants were not aware about the proceedings of the present appeal. The present appeal has been preferred in the interest of Ramdwara Dhakar Samaj Trust and the factum of death of appellant No.2 could not come to the knowledge of trustees, hence the application could not be filed within time. Applicants have also prayed to condone the period of Pandemic Covid-19. 3. Learned counsel for respondents though has not filed any reply to the applications, however, opposed the applications orally that no sufficient cause has been assigned in the application, hence the appeal be declared as abated. 4. Hon'ble Supreme Court in catena of judgments Ram Nath Sao Vs. Gobardhan Sao [ (2002) 3 SCC 195 ] and Balwant Singh Vs. Jagdish Singh [ (2010) 8 SCC 685 ] has categorically observed that the sufficient cause, in relation to the application under Order 22 Rule 9 CPC should be construed liberally and the condonation of delay should be a rule, decline should be an exception. 5. Hon'ble the Supreme Court in case of Milthailal Dalsangar Singh and Ors. Vs. Annabai Devram Kini and Ors. [ 2003(10) SCC 691 ] has held that the courts have to adopt a justice- oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to miscondut, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weigth, and once arrived at would not normally be interfered with by superiro jurisdiction. 6. 6. It appears from the record that this appeal has been pursued by appellants in the interest of trust, alleging that the suit property belongs to Ramdwara Dhakar Samaj Trust. Applicants are the natural heirs of the appellant No.2 and though there is some delay in filing the application for seeking their substitution after death of appellant No.2, there is nothing on record to show that applicants have adopted dilatory or mala fides tactics in moving applications belatedly. As per judgments passed by the Hon'ble Supreme Court, the term 'sufficient cause' should be construed liberally and the court should endeavour to decide the appeal on merits. Hence, considering the entire circumstances and in the interest of justice, this Court deems it just and proper that instead of declaring the appeal as abated, the substitution of applicants should be allowed in place of deceased appellant No.2, in order to hear and decide the present second appeal on merits. 7. Accordingly, all three applications are allowed. The amended cause title, produced by the appellants, is taken on record. 8. With the consent of counsel for both parties, arguments on the appeal itself have been heard finally. 9. On perusal of the record, it appears that the respondents- plaintiffs instituted a civil suit for permanent injunction alleging inter alia that initially, the suit property was let out to them in the year 1990, however, later on defendant No.1 Mahant Jagdish Ram has sold the suit property to plaintiffs through two separate agreements to sale dated 07.10.1994 (Ex.2), therefore, since thereafter appellants are in possession of the suit property as owner. It was prayed that defendants be restrained not to interfere in their possession and not to dispossess the plaintiffs. 10. Appellants-defendants opposed the claim of plaintiffs having possession as owner, although they admitted that plaintiffs were inducted as tenants in the suit property in the year 1990. It was contended by defendants that the suit property belongs to Ramdwara Dhakar Samaj Trust. Defendant No.1 Mahant Jagdish Ram was manager and organizer of the trust, who could not have sold the trust property to plaintiffs through agreement to sale. Defendants placed reliance upon two other agreements dated 13.01.1997 (Ex.A-15 & Ex.A-16), whereby and whereunder the property was entrusted to the Trust. 11. Defendant No.1 Mahant Jagdish Ram was manager and organizer of the trust, who could not have sold the trust property to plaintiffs through agreement to sale. Defendants placed reliance upon two other agreements dated 13.01.1997 (Ex.A-15 & Ex.A-16), whereby and whereunder the property was entrusted to the Trust. 11. The suit for permanent injunction was initially dismissed by the Additional Civil Judge, Hindaun City, District Karauli vide judgment dated 19.02.2015, however, on filing the first appeal, the suit has been decreed by the Additional District Judge No.1, Hindaun City, District Karauli vide judgment dated 10.08.2015 in the following manner:- 12. Learned counsel appearing for and on behalf of appellants submits that while protecting the possession of plaintiffs, the first appellate court has passed findings on merits relating to the ownership rights of plaintiffs and the trust after evaluating the admissibility, effect and legality of the agreements in question (Ex.2 vis-a-vis Ex.A-15 and Ex.A-16). Counsel for appellants submits that such findings may adversely affect the rights of the trust to pursue the separate legal proceedings for eviction of the respondents-plaintiffs. Learned counsel for appellants submits that respondents are tenants in the suit property and separate and appropriate legal proceedings have been initiated against them for eviction. 13. Senior counsel appearing on behalf of respondents-plaintiffs submits that the arguments and grievances, raised by the counsel for appellants, are not tenable in view of the observations already passed by the first appellate court while decreeing the plaintiffs' suit vide judgment dated 10.08.2015. He submits that it should be kept open for both parties to get determined their property rights in relation to the suit property on the basis of their respective documents in the pending or subsequent legal proceedings. 14. Having heard counsel for both parties and on perusal of the impugned judgment and record, this Court finds that the first appellate court in its judgment dated 10.08.2015 in para No.34 has recorded findings to this effect:- 15. Thus, according to the impugned judgment dated 10.08.2015 itself, the possession, of the respondents-plaintiffs over the suit property, has been protected only for not dispossessing them forcefully and without adopting the due course of law and it has been observed that defendants are free to proceed the proceedings under law for eviction/dispossession. Thus, according to the impugned judgment dated 10.08.2015 itself, the possession, of the respondents-plaintiffs over the suit property, has been protected only for not dispossessing them forcefully and without adopting the due course of law and it has been observed that defendants are free to proceed the proceedings under law for eviction/dispossession. Accordingly, this Court observes that it is open for all concerned parties to claim their property rights on merits in relation to the suit property on the basis of their respective documents, in any subsequent or pending proceedings and findings/observations recorded in the impugned judgment dated 10.08.2015 would not prejudice to the rights of either of the parties. 16. In view of the discussions made hereinabove, no interference is called for in the final judgment and decree dated 10.08.2015 and with aforesaid clarifications/observations, this second appeal stands disposed of. 17. Stay application as well as any other pending application(s), if any, also stand(s) disposed of. 18. Record of both courts be sent back. 19. There is no order as to costs.