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2024 DIGILAW 817 (ALL)

Gayatri Pandey v. Madan Lal

2024-03-14

JASPREET SINGH

body2024
JUDGMENT Jaspreet Singh, J. Heard Shri. Santosh Kumar Tripathi, learned counsel for the petitioners, who have instituted the instant petition assailing the order dated 20.09.2022 passed by the Civil Judge (Junior Division), Gonda in Regular Suit No.120/1982, whereby an application moved by the private-respondents for substitution along with an application for condonation of delay which has been allowed. The petitioners being aggrieved preferred a civil revision against the said order which has been dismissed by the order dated 27.10.2023 passed by the Additional District Judge, Court No.2, Gonda in Civil Revision No.90/2022. 2. The submission of the learned counsel for the petitioners is that the original-plaintiff Munna Lal (who died during pendency of the suit) and is now represented by his legal heirs, who are the private-respondents herein instituted a suit for cancellation of the sale-deed and injunction against Triloki Nath the original-defendant No.1 and Raj Kumar Pandey the original-defendant No.2. 3. The controversy which was raised in the plaint was that the original-plaintiff claimed rights over the property in question on the basis of adverse possession and he assailed the sale-deed which was executed by Triloki Nath the original-defendant No.1 in favour of Raj Kumar Pandey the original-defendant No.2 and the suit was registered as R.S. No.120/1982. 4. For the purpose of the present controversy, it would be seen that upon the death of Raj Kumar Pandey, an application was moved by the private-respondents seeking condonation of delay as well as substitution on 08.11.2021. The said application was moved along with an application seeking condonation of delay and the same have been brought on record as Annexure No.17 and 18 respectively with the petition. 5. In response to the said applications of substitution and condonation of delay, the present petitioners filed their objections on 06.01.2022 wherein primarily in Paragraph-4 to 10 of the objections, it was stated that the grounds taken by the private-respondents for seeking condonation of delay and substitution were patently false. The contention is that the deceased Raj Kumar Pandey was an influential person of the locality and also had a political ambition and thus he was very well known in the locality where not only the private-respondents but even the petitioners resides. The contention is that the deceased Raj Kumar Pandey was an influential person of the locality and also had a political ambition and thus he was very well known in the locality where not only the private-respondents but even the petitioners resides. It was also urged that the private-respondents were the neighbourers and they were very well aware of the fact that the original-defendant No.2 Raj Kumar Pandey had died and it was wrongly and falsely alleged that they received the information regarding the death from rumors flouting whereas the record would indicate that the information regarding the death was given to the Court by the clerk of the erstwhile counsel appearing for the defendant No.2 and as such it cannot be said that the private-respondents were not aware. 6. It was also urged that the defendant No.2 had died on 14.07.2018 and as such application for substitution and condonation of delay was hugely time barred and delayed by 1041 days. 7. It is also stated that even if the date of information which was furnished by the clerk of the counsel for the defendant No.2 is seen i.e. from 27.07.2021 even then the application moved by the private-respondents was on 08.11.2021, hence, even from that date, it was hugely delayed. 8. It is pointed out that while moving the application for substitution and condonation of delay, there was no prayer for setting aside the abatement and as such unless and until sufficient cause is made out, the delay could not be condoned nor the substitution application could have been allowed. It is also stated that it was incumbent upon the private-respondents to have first made out a case of sufficient cause and in light of the facts stated it could not be disputed by the private-respondents that they were not aware of the death of the defendant No.2, hence, a person who is not vigilant for his right cannot be given the benefit. Accordingly, both the trial Court as well as the revisional Court have committed an error in allowing the application. 9. Accordingly, both the trial Court as well as the revisional Court have committed an error in allowing the application. 9. In support of submissions, learned counsel for the petitioners has relied upon the following decisions:- (i) Balwant Singh (Dead) v. Jagdish Singh and others, (2010) 8 SCC 685 ; (ii) Lanka Ventateswarlu (Dead) by LRs v. State of Andhra Pradesh and others, (2011) 4 SCC 363 ; (iii) Krishi Utpadan Mandi Samiti, Amroha v. Ganga Ram and others, 1992 SCC Online All 225; and (iv) Writ Petition No.687 of 1994 (Consolidation) - Ram Samuj v. Deputy Director of Consolidation, decided on 28.10.2009. 10. The Court has heard learned counsel for the petitioners and also perused the material on record. Both the trial Court as well as the revisional Court have considered the aforesaid issue with a justice oriented approach while allowing the application for condonation of delay and substitution. 11. Insofar as the contentions raised by the learned counsel for the petitioners while assailing two orders are concerned, suffice it to say that upon the death of the defendant No.2 on 14.07.2018, it was also the duty of the counsel for the defendant No.2 to have informed the Court regarding the death in terms of Order XXII Rule 10-A CPC. If this is seen, it would reveal that the information from the side of the counsel was furnished on 27.07.2021 and it is thereafter that the private-respondents filed the application on 08.11.2021. 12. It is also relevant to notice that at the relevant time when the application was moved, the country was facing COVID-19 Pandemic and in light of the orders passed by the Apex Court in the case of Suo Motu Writ Petition (Civil) No.3 of 2020 in re : Cognizance for Extension of Limitation, it was held by the Apex Court that the period between 20.03.2020 to 28.02.2022 is to be excluded. 13. Taking cue from the aforesaid, the delay which has been caused under such circumstances could be condoned. 14. So far as the question whether the defendant No.2 was a neighbour and his death was known to all is not material inasmuch as the proceedings, at the relevant time, were suspended on account of the Court being vacant and thereafter it was transferred to a working Court from where notices were to be issued in terms of Rule 89-A of the General Rules (Civil). 15. 15. Taking the overall facts and circumstances and noticing that the suit is of the year 1982 and is at the stage of evidence of the defendants, the Court generally lean in favour of deciding the lis between the parties on merit rather than shutting out hearing on the grounds on technicalities. The balance between shutting out the hearing on technicalities as pitted against substantive justice, the Court usually leans in favour of substantive justice. This aspect has been amplified by this Court as well as the Apex Court in a catena of decisions including Collector, Land Acquisition, Anantnag and another v. MST Katiji and others, in 1987 (2) SCC 107 ; N. Balakrishnan v. M.Krishnamurthy (1998) 7 SCC 123 ; Ram Nath Sao Alias Ram Nath Sahu and others v. Gobardhan Sao and others, (2002) 3 SCC 195 ; Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649 ; Sheo Raj Singh v. Union of India, (2023) 10 SCC 531 and the propositions as laid down by the Apex Court in the aforesaid decisions are too well entrenched to require elaboration. 16. In light of the aforesaid and noticing that the petitioners actually have not suffered any prejudice inasmuch as upon substitution they still have right to contest the proceedings on merits and lead appropriate evidence to take the proceedings to its logical conclusion. 17. Moreover, the submission of the learned counsel for the petitioners that there was no application for setting aside abatement or prayer in this regard also does not find favour for the reason that from a perusal of the application which has been placed on record as Annexure No.17 which clearly indicates that it has been moved under Order XXII Rule 4 read with Rule 9 CPC, an application under Section 5 has been filed separately and thus it would be seen that the private-respondents while moving the application also prayed for setting aside abatement. 18. The Court has perused the orders passed by the trial Court as well as revisional Court which has discussed the issue and considering the facts and circumstances, this Court finds that positive discretion has been exercised by the revisional Court which cannot be said to be perverse. 18. The Court has perused the orders passed by the trial Court as well as revisional Court which has discussed the issue and considering the facts and circumstances, this Court finds that positive discretion has been exercised by the revisional Court which cannot be said to be perverse. In such matters where discretion has been exercised in favour of hearing, this Court in exercise of powers under Article 227 of the Constitution of India is loath to interfere unless apparent perversity could be pointed out. 19. The decisions cited by the learned counsel for the petitioners though not disputed but in light of the subsequent decisions of the Apex Court, as mentioned above, and noticing that the condonation of delay in setting aside abatement and allowing the application for substitution is purely discretionary which does not smack on any malafides, hence, this Court is not inclined to entertain the aforesaid petition which is accordingly dismissed at the admission stage itself. Costs are made easy.