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2003 Supreme(MP) 1084
High Court Of Madhya Pradesh
S. P. KHARE
STATE OF MADHYA PRADESH - Appellant
Versus
JAY SINGH - Respondents
Second Appeal 156 Of 1985
Decided On : 10/16/2003
Hemlata Gupta, S.Mukati, T.N.SINGH
The main legal point established is the liberal construction of 'sufficient cause' and the advancement of substantial justice in condoning delay, as emphasized in the Supreme Court decision of Ram Nath Sao v. Gobardhan Sao, AIR 2002 SC 1201.
Headnote:
Abatement - Civil Procedure Code - Order 22, Rule 9, Section 5 of the Limitation Act, 1963 - The court discussed the application of Order 22, Rule 9 of CPC and Section 5 of the Limitation Act, 1963 in setting aside the abatement of the suit. The court emphasized the liberal construction of 'sufficient cause' and the advancement of substantial justice in condoning delay, as established in the Supreme Court decision of Ram Nath Sao v. Gobardhan Sao, AIR 2002 SC 1201.
Fact of the Case:
The suit was filed by the State of Madhya Pradesh to declare an ex parte decree obtained by the defendant as without jurisdiction and not binding. The defendant had died, and the plaintiff's application to bring the legal representative on record was rejected due to delay.
Finding of the Court:
The court found that the delay in bringing the legal representative on record should have been condoned, and the abatement of the suit should have been set aside.
Issues: The main issue was whether the delay in bringing the legal representative on record should have been condoned, and the abatement of the suit set aside.
Ratio Decidendi: The court emphasized the liberal construction of 'sufficient cause' and the advancement of substantial justice in condoning delay, as established in the Supreme Court decision of Ram Nath Sao v. Gobardhan Sao, AIR 2002 SC 1201.
Final Decision: The appeal was allowed, the impugned orders of the lower courts were set aside, and the abatement of the suit was set aside. The parties were directed to appear before the trial court for further proceedings.
( 1 ) THIS is plaintiff s second appeal under Section 100 of CPC. The following substantial question of law was formulated at the time of admission by order dated 18-6-1985 :"whether on the facts and in the circumstances of the case, the Courts below were justified in holding that the suit had abated?"
( 2 ) THE suit was instituted by State of madhya Pradesh as plaintiff for declaration that the exparte decree obtained by defendant No. 1 Jai Singh in Civil Suit No. 839 of 1975 on 3-3-1978 against the plaintiff is without jurisdiction and it is not binding on the plaintiff. By this decree a cash allowance of Rs. 100/- per month was granted to defendant No. 1 Jai Singh. The suit was filed on 7-10-1980. On 30-6-1982, counsel for the defendant No. 1 submitted an application stating therein that defendant No. 1 Jai singh has died four months ago. As mentioned in order, dated 30-10-1984 of the trial Court, defendant No. 1 Jai Singh had died on 17-2-1982. An application describing it to be under Order 22, Rule 4 of CPC and section 5 of the Limitation Act, 1963 was submitted before the trial Court on 25-9-1982 proposing the name of Surendra Singh son of deceased defendant No. 1 Jai Singh as his legal representative by the plaintiff in which these facts were stated.
( 3 ) THE trial Judge, after making an inquiry, by his order dated 30-10-1984 held that there was sufficient cause in not making the application up to 23-8-1982, but he found that there was not sufficient ground for condonation of delay from 23-8-1982 to 25-9-1982 and therefore, rejected the application for bringing on record the legal representative of deceased defendant No. 1. The plaintiff filed an appeal against this order and that was dismissed in motion hearing.
( 4 ) LEARNED counsel for both the sides have been heard and the record of the trial court has been perused. Defendant No. 1 jai Singh died on 17-2-1982. the factum of his death was intimated by his counsel on 30-6-1982. The counsel for the plaintiff wrote a letter on 30-7-1982 to the Sub Divisional Officer for ascertaining the names of the legal representatives of the deceased defendant. The reply was given by the Sub divisional Officer on 23-8-1982 by his letter (Exhibit P-5 ). As already mentioned, the trial Court has found sufficient cause for condonation of delay up to 23-8-1982 but, declined to condone the delay from 23-8- 1982 to 25-9-1982. It appears that after the receipt of the letter (Exhibit P-5) from Sub-Divisional Officer by the counsel for the plaintiff he must have taken some time to draft the application which was submitted before the Court. Therefore, the delay from 23-8-1982 to 25-9-1982 should also have been condoned. It was not necessary to take a very strict view in this respect. As a matter of fact the application under Order 22, rule 4 should have been described as an application under Order 22, Rule 9 of CPC for setting aside the abatement. The Court could treat this application as if made under Order 22, Rule 9 CPC. The learned counsel for the appellant has cited two decisions i. e. Pulakesh Dutta v. Rasaraj Dey, AIR 2000 gauhati 90 and (Smt. Shakuntala Devi v. Banwari Lal, AIR 1977 Allahabad 551. It is well settled that the provisions of the Civil procedure Code are to advance the cause of justice and a party to the litigation should not be allowed to suffer on account of technicalities of the case. Therefore, in the interest of justice, the application under order 22, Rule 4, CPC could be treated as an application under Order 22, Rule 9 of CPC for setting aside the abatement. There was also the application under Section 5 of the limitation Act, 1963.
( 5 ) RECENTLY, the Supreme Court has laid down in Ram Nath Sao v. Gobardhan Sao, air 2002 SC 1201 what should be the approach of the Courts in dealing with the application under Order 22, Rule 9 of CPC and Section 5 of the Limitation Act, 1963. The Supreme Court after referring to the earlier decisions on this point has
