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Rajasthan High Court
Honble PRAKASH TATIA, J.
Mohan Devi @ Mohini Devi (Smt.) - Appellant
Versus
LRS of Himmat Lal Menaria - Respondents
S.B. Civil Misc. Appeal No. 330 of 2004
Decided On : September 09, 2004
In the matter of condonation of delay and particularly, when there is a question of abatement of the suit resulting into dismissal of the suit, resulting into rejection of claim without looking into the merit of the case, liberal view should be taken so as to advance the cause of justice. In this case, I find that in the peculiar facts of the case the revision petition filed by the defendant was pending before this Court and further proceedings in the suit was stayed by this court and it continued till the dismissal of the defendants revision petition and during this period defendant died and when the defendant did not raise any objection against not taking steps by the plaintiff in consequence of the death of the defendant, the Trial Court should have exercised discretion in condoning the delay and by that the Trial Court could have avoided the delay of four years in the trial of the suit. (Para 24)
The application filed by the appellant plaintiff under Order 22 Rule 4 CPC is treated as a consolidated application under Order 22 Rule 4 CPC read with under Order 22 Rule 9 CPC and the application filed by the plaintiff under Section 5 of the Limitation Act alongwith the said application is allowed. Delay in filing the application for setting aside of the abatement as well as for not moving the application in time under Order 22 Rule 4 CPC is condoned: The applications are allowed and the abatement is set aside. The legal representatives of the defendant are taken on record. Now the Trial Court may proceed with the suit. (Para 25)
(2). In these two appeals, the two orders, namely order dated 13th Sept., 2001 and 5.08.2003 are under challenge. The plaintiff is seeking setting aside the abatement of his suit by moving applications and the court below refused to set aside the abatement of the suit and also refused to take on record the legal representatives of the deceased sole dependent. It will be necessary to narrate few facts before proceedings further.
(3). The plaintiff filed the suit for specific performance of contract against the sole defendant. In that suit, the defendant submitted an application under Order 7 Rule 11 CPC on 4.12.1995. The said application was dismissed by the Trial Court vide order dated 6.2.97. The defendant preferred revision petition, which was registered as S.B. Civil Revision Petition No. 503/1997. This court while issuing notice on 28.05.1997 stayed the further proceedings in the suit. On 23.06.1998, the sole defendant died. The revision petition was taken up by this court on 10.05.2000 and was decided on merit and the revision petition was dismissed.
(4). On 18.07.2000, the plaintiff filed an application under Order 22 Rule 4 CPC in the Trial Court alongwith an application under Section 5 of the Limitation Act stating therein that the plaintiff had no knowledge of the death of the sole defendant till 9.07.2000 and, therefore, after condoning the delay by exercising power under Section 5 of the Limitation Act, the legal representatives of the deceased Himmat Mal defendant may be taken on record.
(5). The legal representatives of the defendant submitted reply to the application and raised objections including the objection about the knowledge of the plaintiff about the death of the sole defendant on the ground inter alia that in High Court, in the revision petition No. 503/1997 an application was submitted by the legal representatives of the defendant-petitioner Himmat Lal on 27.8.1998 and before that copy of the application was served upon the learned counsel for the plaintiff, who appeared in the High Court for the plaintiff. Therefore, the plaintiff got the knowledge of the death of the defendant before 27.8.1998 or at least on 27.8.1998.
(6). The Trial Court vide order dated 13th Sept., 2001 after observing that even if it is presumed that the plaintiff got the knowledge of the death of the defendant on 9.07.2000, still the suit stands abated because the plaintiff has not submitted the application under Order 22 Rule 9 CPC for setting aside the abatement, therefore, his application under Order 22 Rule 4 CPC is liable to be dismissed, hence, dismissed by the Trial Court.
(7). That plaintiff being aggrieved against the order of the Trial Court dated 3rd Sept., 2001 preferred S.B. Civil Revision Petition No. 178/2002 before this court on 10.12.2001. The notices were ordered to be issued to the defendant, the legal representatives of the sole defendant. However, the said revision petition No. 178/2001 was dismissed by this Court by order dated 26.03.2003 holding that the revision petition is not maintainable as the appeal lies against the order dated 13th Sept., 2001. The appellant in these facts and circumstances, preferred an appeal challenging the order dated 13th Sept., 2001 by filing S.B. Civil Misc. Appeal No. 2825/2003 (Defect). This misc. appeal was submitted before this court on 2.04.2003.
(8). During the pendency of the Misc. Appeal No. 2825/2003 (Defect), it appears that for abandon caution the plaintiff submitted an another application before the Trial Court, which is filed under Order 22 Rule 9 and 10 CPC and under Order 22 Rule 4 CPC alongwith an application for condoning the delay under Section 5 and 14 of the Indian Limitation Act. The said applications too was dismissed by the Trial Court vide order dated 5.08.2003. The Trial Court observed that there is no new fact on the basis of that the plaintiff can claim condonation of delay and the plaintiff cannot tak
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