Procedural rules should not obstruct the substantive rights of parties, allowing for restoration of appeals in the interest of justice.

JUDGMENT

Rameshwar Vyas, J. - The present application for restoration has been filed under Order XLI, Rule 19 read with Section 151 C.P.C. by the defendants-appellants with the prayer for recalling of the Order dated 07.09.2017 passed by this Court in S.B. Civil Second Appeal No. 66/2008 (LR's of Loku Ram Vs. Bihari Lal), whereby the second appeal, against sole respondent - Bihari Lal, was dismissed as abated.

2. The facts of the case in short are that plaintiff Bihari Lal, legal representatives of whom are respondents herein, filed a civil suit for specific performance of the agreement to sell the property, which was dismissed by the trial court vide Judgment dated 17.02.2005, however, plaintiff - Bihari Lal was held entitled to receive double of the consideration amount paid by him to defendant - Lokuram, whose legal representatives are appellants herein. Plaintiff - Bihari Lal preferred first appeal against rejection of his suit, which was allowed by the First Appellate Court vide Judgment dated 08.01.2008. Aggrieved by the judgment of the First Appellate Court, legal representatives of defendant - Lokuram filed second appeal before this Court on on 08.02.2008. On 28.02.2008, the second appeal was admitted and execution of the decree impugned passed by the First Appellate Court was stayed by this Court. The interim stay order granted by this Court was made absolute during the pendency of the appeal on 04.05.2011. Afterwards, respondent - Bihari Lal (plaintiff herein) expired on 27.05.2014. However, the information regarding death of respondent - Bihari Lal was furnished by learned counsel representing the respondent first time before this Court on 04.08.2017, on which date, at the request of learned counsel for the appellants, time was granted for taking necessary steps for substituting legal representatives of sole respondent - Bihari Lal. On 07.09.2017, the appeal was dismissed as abated on the ground that the appellants did not take any steps for bringing legal representatives of the sole respondent on record. Being aggrieved with the Order dated 07.09.2017, legal representatives of defendant - Lokuram have filed this application for restoration praying for recalling the order dated 07.09.2017. Along with application restoration application, an application under Section 5 of the Limitation Act seeking condonation of delay in filing the restoration application supported by affidavit of appellant - Ganesh Kumar, has been filed.

3. Since the present restoration application has been wrongly filed under the provisions of Order XLI, Rule 19 C.P.C., an application under Order VI, Rule 17 read with Section 151 C.P.C. has been filed by the appellants seeking amendment in the cause title of the restoration application to the extent that the same may be read as "restoration application under Order XXII, Rule 4(5)(b) & 9(2) read with Section 151 C.P.C." instead of "restoration application under Order XLI Rule 19 read with Section 151 C.P.C.", which is allowed and the application for restoration is being decided under amended provisions.

4. In reply to the restoration application, it has been, inter alia, averred that counsel for the appellants did not take any steps for bringing legal representatives of the sole respondent on record as per order, hence, the appeal was dismissed as abated. The appellants were aware of the death of plaintiff-respondent - Bihari Lal. The appellants have intentionally and deliberately caused delay in taking legal representatives of respondent - Bihari Lal on record. Hence, the delay cannot be condoned.

5. Heard learned counsel for the parties on the applications and perused the material on record.

6. Learned counsel for the appellants while relying upon the judgments of the Hon'ble Apex Court in the cases of Banwari Lal (D) by LR's and Anr. Vs. Balbir Singh (AIR 2015 Supreme Court 3573) and Prahlad Shankarrao Tajale and Ors. Vs. State of Maharashtra through its Secretary (Revenue) and Anr. (AIR 2018 Supreme C