IMPORTANT POINT
As to whether non-substitution of LRs of the defendants/respondents would abate the appeal in toto or only qua the deceased defendants/respondents, depend upon the facts and circumstances of an individual case.

JUDGMENT

Dr. B.S. Chauhan, J. —

1. Leave granted.

2. This appeal has been preferred against the Judgment and Order dated 30.11.2007 in FAO No. 345 of 2003 of the High Court of Himachal Pradesh at Simla by which it has upheld the Judgment and order of the 1st Appellate Court i.e. the Additional District Judge, Solan Camp, Nalagarh in Case No. 19-NL/13 of 2000, whereby the Appellate Court refused to condone the delay in filing the application for substitution of Legal Representatives (hereinafter called the LRs.) of the deceased respondent No.4, Smt. (Parwatu) and held that the appeal filed by the present appellants stood abated in toto.

3. The facts and circumstances giving rise to the present case are that the respondents, namely, Tulsi, Bansi and Hariya, all sons of Daulatia, instituted Civil Suit No. 207/1 of 1994 against the present appellants and some of their predecessors-in-interest alongwith Smt. Parwatu, widow of Nanta, a proforma defendant, for seeking declaration to the effect that plaintiffs/respondents were co-owners and co-sharers in joint possession to the extent of 17 Bighas, 8 Biswas and Smt. Parwatu, proforma defendant No. 6 was co-owner and co-sharer in joint possession to the extent of 5 Bighas, 15 biswas comprised in Khewat/Khatuni Nos. 15-16, Kitats - 32, total measuring 49 Bighas, 1 Biswa situated in Village Malag, H.B. 277, Pargana Nawan Nagar, Tehsil Nalagarh, District Solan (H.P.) with the consequential relief of permanent prohibitory injunction restraining the appellants/ defendant Nos. 1 to 5 from causing ouster and decree for joint possession.

4. The suit was contested by the present appellants. However, defendant No. 6, Smt. Parwatu did not enter appearance and did not contest the suit. The present appellants had also claimed title over the suit land by way of adverse possession. It is an admitted fact that both the parties are descendants of the same ancestor Jalphu and certain mutation proceedings had been under challenge in the suit itself. On the basis of the pleadings, issues were framed and evidence was adduced. After the conclusion of the trial of the suit, the Trial Court decreed the suit in favour of the plaintiffs/respondents and defendant No. 6, as prayed for vide Judgment and decree dated 21.12.1999.

5. Being aggrieved, the present appellants preferred Civil Appeal No. 19-NL/13 of 2000, wherein the said defendant No. 6 Smt. Parwatu was impleaded as respondent No. 4. The appeal was contested by the respondents/plaintiffs, however, Smt Parwatu remained unrepresented before the 1st Appellate Court also. During the pendency of the appeal, Smt. Parwatu, respondent No. 4, died on 19.11.2000. The present appellants preferred an application for substitution of the LRs of Smt. Parwatu, respondent No. 4, before the Ist Appellate Court on 16.10.2001, under order XXII Rule 4 of the Code of Civil Procedure, 1908 (hereinafter called as, “CPC”). The said application was duly supported by an affidavit, however, no application for condonation of delay was filed along with the said application. It was after an inordinate delay that an application for condonation of delay was filed on 15.11.2002 without furnishing any explanation as to why the application could not be filed along with the application for substitution of LRs.

6. The said application was contested by the respondents/plaintiffs taking a specific plea that the appellants/ applicants were fully aware of the death of Smt. Parwatu as they were residing in same village. The present appellants/applicants had taken part in the last rites of the deceased Smt. Parwatu. Thus, the respondents sought for rejection of the said application.

7. The Appellate Court considered various aspects and issues involved and reached the conclusion that there was no sufficient cause for the appellants/applicants to file an application with such an inordinate delay and, therefore, the application for condonation of delay was rejected. The Appellate Court further came