Procedure is handmaid of justice; delay in substituting legal representatives of deceased defendant condoned where death notice dubious, no timely objection by defendants, preventing harsh abatement.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has prayed for the following reliefs:-

a) “That the order dated 31.05.2023 passed in Civil Misc. Appeal (RBT No.07G/XIV/2023/2019)/ (Registration No.30/2019) titled as Amar Singh vs. Ramesh Chand and others by the learned Additional District Judge Dehra, District Kangra, H.P. (Annexure P-5) whereby the learned Additional District Judge Dehra, District Kangra, H.P., has upheld the order dated 17.12.2018 passed in Civil Case No.170 of 2012 by the learned Senior Civil Judge, Dehra, District Kangra, H.P., be quashed and set aside.

b) Allow the application filed under Order 22 Rules 4 and 9 read with Section 151 of the CPC and Section 5 of the Limitation Act for bringing on record the legal representatives of deceased respondent No.2 in totality.”

2. The petitioner is aggrieved by the order passed by the learned Trial Court as well as the learned Appellate Court, in terms whereof, the application filed by the petitioner/plaintiff under Order 22 Rule 4 of the Civil Procedure Code to bring on record the legal representatives of deceased defendant No.2 has been dismissed.

3. Learned counsel for the petitioner argued that the impugned orders under challenge are not sustainable in the eyes of law as the learned Courts below have erred in not appreciating that immediately when the factum of the death was brought the notice of the plaintiff, the steps do bring on record the legal representatives were taken forthwith. Learned counsel referred to the original record which is available and submitted that the prayer was made on behalf of the petitioner on 20.11.2017 for the grant of opportunity to file an application to bring on record the legal representatives of deceased defendant No.2, when the factum of the death of said defendant was disclosed to the plaintiff and immediately thereafter, the application was filed on 11.12.2017. In these circumstances, he stated that the rejection of the application as well as dismissal of appeal is not sustainable in the eyes of law. With regard to the order passed by the Court dated 04.05.2016, he stated that the order as is recorded was passed at the back of the plaintiff which is evident from the fact that the order which was passed on 04.05.2016 was to the effect that the report of Local Commissioner received and be put up for filing of objections thereto on 03.08.2016. Subsequently there is another order, in which, it stands recorded that at this stage, learned counsel for defendants No.1 to 3 informs that defendant No.2 is dead,. He argued that even if it is to assumed that this information was given on the said date to the Court, it was at the back of the plaintiff as the presence of the learned counsel for the plaintiff is not recorded in this order. He submitted that in these circumstances as the impugned orders was extremely harsh, they are liable to be quashed and set aside. Learned counsel for the petitioner also argued on the basis of the record that otherwise also the mode and manner in which the subsequent order stands recorded on 04.05.2016 raises eye brows for the reason that all other orders are in continuity, whereas, this particular order is in isolation on one page.

4. On the other hand, learned for the respondents defended the order passed by the learned Trial Court as well as the learned Appellate Court. Learned counsel took the Court through the record as well as the impugned order and submitted that as the factum of the death of defendant No.2 was on record of the Court file as