IMPORTANT POINT
Mistake occurring due to lapse of an officer of the court should be rectified by the Court and the parties relegated to the position on the date when the mistake occurred.

JUDGMENT

Altamas Kabir, J. —

1.Leave granted in both the Special Leave Petitions wherein the parties are the same and both arise out of orders passed by the Delhi High Court in RSA No.126 of 1989.

2.The appellants herein are the legal representatives of the original defendant, Nanak Chand in a suit brought against him by Jagdish Lal Marwaha, the predecessor-in-interest of the respondents, to makeover vacant and peaceful possession of quarter No. 37-38, Block No.C-I, Malkaganj, Delhi, and, thereafter, not to interfere with the plaintiff’s possession therein. On the suit being dismissed, the plaintiff, Jagdish Lal Marwaha, filed a First Appeal in the Court of Additional District Judge. While the First Appeal was pending, Nanak Chand died on 3rd January, 1985, and apparently an application for substitution of his legal heirs was made in the pending appeal. The said application, however, remained pending and undisposed of, though the appeal was finally decided. Consequently, although, an application had been made for substitution, the heirs of deceased, Nanak Chand, were not brought on record in the first appeal and as a result when the decree was drawn up it was drawn up against Nanak Chand, who, as mentioned hereinabove had died during the pendency of the appeal.

3.Although, no formal order of substitution had been made, the legal representatives of Nanak Chand filed a second appeal before the High Court, which was ultimately dismissed on 12th December, 1991, with the judgment and decree of the First Appellate Court being affirmed. However, since the legal heirs of deceased Nanak Chand had not been brought on the records of the first appeal, a decree in terms of the judgment passed by the High Court in the Regular Second Appeal could not be drawn up and as a result, the decree passed by the First Appellate Court and affirmed by the High Court in second appeal could not be executed. An application, being CM 2873 of 1998, was thereupon filed by the legal heirs of the plaintiff decree-holder in the second appeal praying for rectification of the judgment and decree drawn up by the First Appellate Court or in the alternative to draw-up a fresh decree in the second appeal in terms of the order dated 12th December, 1991, dismissing the appeal.

4.The aforesaid application was strongly opposed on behalf of the respondents on the ground of maintainability. It was alleged that the applicants had no locus standi to file an application, as they were not the legal representatives of the plaintiff, Jagdish Lal Marwaha.

5.The aforesaid submission did not find favour with the High Court since by an order dated 23rd January, 2004, they had been substituted in place of the original plaintiff, Jagdish Lal Marwaha as his legal representatives. Furthermore, when the appeal was dismissed on 12th December, 1991, they were parties to the appeal. The application was, therefore, allowed with a direction upon the Registry of the High Court to draw up the decree in the second appeal mentioning the names of the parties of the appeal at the time the same was finally disposed of. The said order is the subject matter of challenge in SLP(C) No.3856 of 2007, which is being heard along with SLP(C) No. 7099-7100 of 2008.

6.At this juncture, it may be stated that two applications, being CM Nos. 584 and 585 of 2003, were filed by the legal representatives of Jagdish Lal Marwaha, the plaintiff in the suit, for bringing them on record as the legal representatives of the deceased plaintiff and for condonation of delay in making the application. It was sought to be explained that since an application had already been made under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure, on which no order had been passed, the applicants had been advised that they were not required to file a separate application for the same purpose.

Accepting the explanation, the Delhi High Court allowed both the applications and directed the Memo of Parties to be amended accordingly. S