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2019 Supreme(Raj) 1602
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Prakash Gupta, J.
Sanwarmal Saini - Appellant
Versus
Jugal Kishore Jhunjhunuwala - Respondent
Civil Miscellaneous Appeal No. 5070/2017
Decided On : 15-10-2019
Mr. B.L. Gupta and Mr. Ankul Gupta, Advocate, for the Appellant; Mr. M.K. Jain, Advocate, for the Respondents
In the absence of mala fide or negligence, the court should normally condone the delay in filing an application to bring the legal representatives of a deceased party on record.
Headnote:
ABATEMENT OF SUIT - ORDER 22 RULE 4 & 9 CPC - SECTION 5 LIMITATION ACT - DELAY IN SUBSTITUTION OF LEGAL REPRESENTATIVES - CONDONATION OF DELAY - LIBERAL APPROACH:
Fact of the Case:
Plaintiff filed a suit for specific performance of contract, cancellation of sale deed, and perpetual injunction. During the pendency of the suit, the defendants informed the court that defendant No. 1 had expired. The plaintiff did not bring the legal representatives of defendant No. 1 on record, and the suit was abated. The plaintiff filed an application to set aside the abatement and bring the legal representatives on record, which was dismissed by the trial court.
Finding of the Court:
The court held that a liberal approach should be taken in deciding applications for setting aside abatement of suits and condonation of delay in taking steps for substitution of legal representatives. The court found that the plaintiff was not aware of the death of defendant No. 1 and had not committed any intentional delay in filing the application after being informed of the death. The court also found that the legal representatives of defendant No. 1 were residing elsewhere, which made it difficult for the plaintiff to obtain their names and other details.
Issues: Whether the delay in filing the application to bring the legal representatives of defendant No. 1 on record should be condoned.
Ratio Decidendi: The court held that the plaintiff had not committed any mala fide or negligence in filing the application belatedly. The court also considered the fact that the plaintiff was not going to gain anything by moving the application belatedly. In light of these factors, the court held that the trial court had committed gross illegality in dismissing the application.
Final Decision: The court allowed the miscellaneous appeal, set aside the impugned order of the trial court, and allowed the applications filed under Order 22 Rule 4 & 9 CPC and Section 5 of the Limitation Act. The court also condoned the delay in filing the application under Order 22 Rule 4 & 9 CPC and set aside the abatement. The legal representatives of defendant No. 1 were taken on record.
JUDGMENT
Prakash Gupta, J. - This civil miscellaneous appeal under Order 43 Rule 1(c) CPC has been filed by the appellant/plaintiff against the order dated 29.05.2017 passed by the Additional District Judge, Chirawa, District Jhunjhunu (for short 'the trial Court) whereby the said Court dismissed the applications filed under Order 22 Rule 4 & 9 CPC and under Section 5 of the Limitation Act and suit has been abated against the defendant No.l.
2. Brief facts giving rise to the present miscellaneous appeal are that the plaintiff-appellant filed a suit for specific performance of contract, cancellation of sale deed dated 29.10.2005 and perpetual injunction before the trial Court. During the pendency of the suit an application was filed by the defendants No.2 and 3 on 30.10.2015stating therein that the defendant No.1 had expired on 17.09.2013. Since the appellant/plaintiff did not bring on record the legal representatives of the defendant No.l, the suit stands abated. Thereafter, an application under Order 22 Rule 4 CPC along with an application under Section 5 of the Limitation Act were filed by the plaintiff-appellant on 19.08.2016 wherein it was stated that the deceased-defendant No.l was residing at Ranchi and therefore, the plaintiff was not aware about the death of defendant No.l. It was also stated that the legal representatives of the defendants No.l were also residing at Ranchi and hence, the plaintiff could not gather the information regarding the legal representatives of the defendant No.l. The plaintiff gathered the particulars of the legal representatives of the deceased-defendant No.l only on 15.08.2016 and prior to 15.08.2016, plaintiff was not having any information regarding the name and addresses of the legal representatives of defendant No.l. Therefore, no application could be filed to bring on record the legal representatives of the defendant No.l. Thus, the suit could not be abated and if treated as abated, the abatement be set aside and the legal representatives of the defendant No.l be taken on record.
The application was resisted by the defendants No.2 and 3 by filing reply wherein it was stated that the application has been filed after a delay of more than two years. The suit therefore stands abated against the defendant No.l. The information regarding death of defendant No.l was provided on 30.10.2015 despite that no application was filed for bringing legal representatives of defendant No.l on record.
3. After hearing learned counsel for the parties, learned trial Court dismissed the application. Hence, this miscellaneous appeal.
4. On behalf of the plaintiff/appellant, it was argued that the Court below took a pedantic approach of the matter whereas in the matter of abatement of the suits, a liberal approach ought to be taken. The parties to the suit neither belong to the same family nor are they closely related. The appellant came to know about the death of the defendant No.1 only on 30.10.2015, through the application filed on behalf of the defendant. Prior to it the appellant had no knowledge of the fact that the defendant No.l had expired on 17.09.2013. In the application dated 30.10.2015, the defendant had not mentioned the names and other particulars of the legal representatives of the defendant No.l. The legal representatives of defendant No.l are residents of Ranchi and their whereabouts were not known to the appellant before August, 2016 and immediately thereafter, he moved an application on 19.08.2016 for bringing legal representatives of defendant No.l on record. Therefore, there was no intentional delay in submitting the application for bringing the said legal representatives on record. The Court below in the facts and circumstances of this case, ought to have exercised its judicial discretion in setting aside the abatement. Therefore, a prayer was made to accept this writ petition and to set aside the abatement. In support of his contention, learned counsel for the appellant has placed reliance up
