Important Point—Court should not give such an interpretation to provisions which would render provision ineffective or otiose.

Prashant Kumar Agarwal, J.

1. This order will dispose of application under Order 22 Rule 4 read with Rule 9 read with Section 151 CPC filed by the applicant-appellant with a prayer to set aside the order of abatement dated 6.3.2012 passed by this Court in S.B. Civil First Appeal No. 421/2009 and also application under Section 5 of the Limitation Act with prayer to condone the delay caused in filing the aforesaid application.

2. Brief relevant facts for the disposal of these applications are that Civil Suit No. 209/2007 filed by the plaintiff-appellant for specific performance of agreement to sell was dismissed by Additional District Judge (Fast Track) Tijara (District Alwar) vide judgment and decree dated 7.7.2009 which was challenged by the appellant by way of Civil First Appeal No. 421/2009 and the said appeal was admitted by this Court vide order dated 22.7.2009 and notice was ordered to be issued to respondent-defendant. The notice sent for service upon the respondent was received back with a report by the process server that the respondent has died a month ago and a note of aforesaid fact was recorded by the office vide order-sheet dated 11.11.2009 and learned counsel for the appellant was asked to take necessary steps in this regard. As necessary steps were not taken by the appellant to bring the legal representatives of the deceased sole respondent, vide order dated 6.3.2012 the appeal was ordered to have been automatically abated as the prescribed period of 90 days has already been expired. It is to be noted that none was present on behalf of the appellant on 6.3.2012. Aforesaid application under Order 22 Rule 4 read with Rule 9 CPC alongwith affidavit of appellant was filed by the appellant on 17.8.2012 with a prayer to recall the order dated 6.3.2012 and re-admit the appeal to its original number. It is to be noted that alongwith this application, application under Section 5 of the Limitation Act was not filed and it was filed on 3.8.2015 alongwith affidavit. Notices were issued to the legal representatives of the deceased-respondent who appeared through their counsel but reply to the aforesaid applications was not filed.

3. In the facts and circumstances of the case, it is to be considered whether these applications can be allowed and the order dated 6.3.2012 is to be set aside and recalled.

4. It was submitted by learned counsel for the appellant that fact of death of respondent was not in the knowledge of appellant and when on 8.8.2012 he telephonically contacted his counsel about proceedings to be taken in the appeal, next day it was informed to him by his counsel's clerk that the appeal has been abated vide order dated 6.3.2012 as necessary steps were not taken to bring legal representatives of the respondent who is reported to have expired during pendency of the appeal. It was further submitted that on such intimation being given by the clerk of his counsel, appellant made inquiry about legal heirs of the respondent and application under Order 22 Rule 4 read with Rule 9 CPC was filed alongwith the copy of voter list and death certificate of respondent without any unreasonable delay on 7.8.2012. It was also submitted that as the aforesaid application was filed after expiry of the prescribed period, application under Section 5 of the Limitation Act alongwith affidavit with a prayer to condone the delay caused was filed on 3.8.2015 as the same could not bonafidely be filed alongwith the aforesaid application. It was submitted by the learned counsel for the appellant that the delay caused in filing the application to bring legal representatives of the deceased-respondent was not intentionally and it was bonafide by the reason that appellant did not come to know about death of respondent in time and after getting information from his counsel it took him some time to obtain his death certificate and as soon as it was obtained the aforesaid application was filed without any unreasonable delay. It was further submit