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2000 Supreme(Gau) 23
GAUHATI HIGH COURT
M. L. SINGHAL, J.
Pulakesh Dutta -Appellant
Versus
Rasaraj Dey and others -Respondent
Civil Revn. No. 34 of 1998
Decided On : 17-01-2000
D. K. Biswas, R. B. Sinha (for No. 1)
The provisions of the Code are meant to advance the cause of justice and should not be used to allow a party to suffer due to technicalities.
Headnote:
Order 22 - Substitution of Heirs - The court allowed the revision and set aside the order rejecting the application for substitution of the heirs of the deceased respondent, emphasizing that the provisions of the Code are meant to advance the cause of justice and should not be used to allow a party to suffer due to technicalities.
Fact of the Case:
The respondent died during the pendency of the appeal, and the appellant filed a petition for substitution of the heirs of the deceased respondent. The application was rejected by the District Judge, stating that it was not filed within the limitation period and no application for setting aside the abatement had been filed by the appellant.
Finding of the Court:
The court found that the provisions of the Code are meant to advance the cause of justice and that the application for substitution should be treated as the application for setting aside the abatement. The court allowed the revision, set aside the previous order, and directed the appellate court to decide the substitution matter between the parties.
Issues: Application for substitution of the heirs of the deceased respondent and setting aside the abatement.
Ratio Decidendi: The provisions of the Code are to advance the cause of justice, and in the interest of justice, the application for substitution should be treated as the application for setting aside the abatement.
Final Decision: The revision was allowed, the previous order was set aside, and the appellate court was directed to decide the substitution matter between the parties.
This Civil Revision preferred under Section 115, Civil Procedure Code arising out of the Courts order dated 3-3-1998 passed by the District Judge, North Tripura, Kailashahar in case No. TA 2 of 1997 Shri Pulakesh Datta v. Smt. Baranga Bala Datta, rejecting the appellants application filed under Order 22, Rule 11 read with Rule 4-A, C.P.C. and read with Section 151, C.P.C.
2. Heard Mr. D. K. Biswas, learned counsel for the petitioner and Mr. R. B. Sinha, learned counsel for the respondent.
3. The respondent Smt. Baranga Bala Dutta in Civil Appeal before the learned District Judge, died during the pendency of the appeal on 7th April, 97. The appellant Shri Pulakesh Dutta filed petition under Order 22, Rule 11 read with Rule 4A, C.P.C. read with Section 151, C.P.C. for substitution of the heirs of the deceased respondent. The learned District Judge has rejected the application observing that as the substitution application has not been filed within limitation period, the appeal has abated and no application for setting aside the abatement has been filed by the appellant.
4. Learned Appellate Court has rejected the substitution application with the observation that after the abatement of the appeal the appellant should have filed application for setting aside the abatement, the appellant also filed application for substitution within the limitation period. The provisions of the Code are to advance the cause of justice, a party to the litigation should not be allowed to suffer on account of technicalities of the case. In the interest of justice it appears necessary that the present application of the appellant filed under Order 22, Rule 11. Rule 4A read with Section 151, C.P.C. should also be treated as the application for setting aside the abatement under Order 22, Rule 9(2) of the Code of Civil Procedure.
5. In the result, the revision succeeds and is hereby allowed. The order dated 3-3-1998 under revision is hereby set aside. The appellate Court shall decide the substitution matter between the parties in accordance with the directions given above and according to the law.
Petition allowed.
