1997 2 MPWN 41 ; 1997 0 Supreme(MP) 925

IN THE HIGH COURT OF MADHYA PRADESH
A.R. Tiwari, J.
Gendalal – Applicant
Versus
Harisingh – Non-applicant
Civil Revn. No. 288 of 1994 (I)
Decided On : 20-03-1997

(1) Civil Procedure Code, 1908 – 4>O. 22 Rr: 4 and 10A – application for substitution filed after information under R. 10A – may be treated within time.

       (2) Civil Procedure Code, 1908 – O. 22 R. 9, 9 (2) and 4 – Limitation Act, 1963 – S.5 – application for substitution not filed within time – should accompany with application for setting aside abatement and condonation of delay.

       (3) Justice – meritorious matters – should not be thrown out – cause of justice should not be defeated.

        Short Note

       1. This revision petition is directed against order dated 18.2.94 passed by 10th Addl. District Judge Indore in Civil Suit No. 128 – B/88 (old No. 28 – B) thereby allowing the application presented under Order 22 Rule 4 CPC.

       2. Briefly stated the facts of the case are that N.A. filed the aforesaid suit The original defendant Laxminarayan died on 24.8.90. Counsel appearing for Laxminarayan informed the Court about death on 14.9.90. On 7.11.90, N.A. submitted the application under Order 22 Rule 4 CPC for ascertaining particulars of legal representatives. The Court granted time. On 30.11.90 the application was filed. This application was contested. The Court allowed the application and permitted substitution by order dated 19.2.1994. This order is challenged.

       3. I have heard Shri Verma, learned counsel' for the applicants and Shri Anverkhan learned counsel for the N.A. Shri. Verma submitted that the suit had abated and thereafter the application submitted on 30.11.90 was liable to be rejected in absence of application under Order 22 Rule 9 CPC and S. 5 of the Limitation Act, on proper grounds. Learned counsel has placed on reliance on Union of India v. Ramcharan (AIR 1964 SC 215) and Durgalal v. Asharfilal (AIR 1973 Raj. 332).

       4. Counsel for the N.A. however dubbed the aforesaid contention as non – meritorious. He submitted that it was the duty of the pleader of the defendant to communicate to the Court about death of a party in terms of Order 22 R. 10 – A CPC. This duty was discharged only on 14.9.90. The application presented on 30.11.90, was therefore, within time from the date of such communication. Moreover the application was filed on 7.11.90, i.e. within limitation for time to ascertain particulars of legal representative. Time was granted by the Court. In view of these facts, features, the order Goes not suffer from any error.

       5. In Collector Land Acquisition v. Mst. Katiji and others (AIR 1987 SC 1353) it is held that a meritorious matter should not be thrown out at the very threshold and cause of justice should not be defeated. The only consequence on allowing prayer for substitution is that the matter will be decided on merits after hearing the parties.

       6. As the application for substitution is within time from the date of communication under Order 22 Rule 10 – A CPC as noted above, I am satisfied that the Court below did not commit any error in allowing the application.

       7. True it is that the N.A. should have also filed application under Order 22 Rule 9 CPC and S. 5 of the Limitation Act, but the procedural wrangle cannot be permitted to defeat the course of justice. However, as the application under Order 22 Rule 4 CPC is allowed, it may be construed that abatement, if any, was set aside as there is sufficient material about sufficient cause in terms of Order 22 Rule 9 (2) CPC. In the face of belated information by the Pleader of the deceased – defendant, delay if any was also required to be condoned. Eventually the order has done justice, and is not liable to be dislodged. Law and justice are not distant neighbours. The order delivers justice and is not amenable to interference in revisional jurisdiction.

       8. In the result, I dismiss this revision petition with no order as to cost. Interim stay passed on 2.5.1994 and continued on 8.12.94 stands vacated. The trial Court is directed to expedite conclusion of the case which is said to be of 1987. A copy of this order shall be forwarded to the trial Court.

Act Referred :
CIVIL PROCEDURE CODE : O.22 R.4, O.22 R.10(a), O.22 R.9, O.22 R.9(2)
LIMITATION ACT : S.5

Advocates Appeared :
For the Applicant : Verma
For the No