Delay in substitution applications can be condoned if sufficient grounds are shown, and procedural oversights should not preclude access to justice.

JUDGMENT :

PREM NARAYAN SINGH, J.

1. The appellant has preferred this appeal being aggrieved by the-order dated 14-03-2022 passed in Original Civil Suit No.02A/2015, by the Learned Seventh Additional District Judge, Indore whereby the application preferred for substitution of legal heirs of plaintiff due to his demise has been rejected and the suit is dismissed as abated.

2. The case of the petitioner in nutshell is that plaintiff-Hiralal (being son of Shri Kanahaiyalal Yadav, the original owner suit land) filed a civil suit against the defendants for the relief of declaration and injunction, a written statement was also filed by the defendants wherein they have disputed the factum of execution of will by plaintiff. During the pendency of the trial sole plaintiff-Hiralal died on 02.10.2019 and his legal representatives were not aware of the pendency of the present suit could not contact the counsel. Thereafter counsel himself contacted the LRs of plaintiff and informed them about the case, then an application under Order 22 Rule 3 of CPC was filed, however, the application was filed after 165 days from the death of plaintiff, therefore the application was dismissed on merits vide the impugned order, hence the present appeal.

3. Learned counsel submitted that counsel for the plaintiff was regularly appearing before the trial Court and was proceeding with the matter. The counsel was not aware of the death of plaintiff and the legal heirs of the plaintiff who happens to be illiterate labourers unaware of the pendency of the suit, therefore, they did not contact their counsel. Counsel further submitted that the defendants are the real relatives to the plaintiff and they were bound to inform the death of plaintiff before the trial Court, but they have not informed about the death of plaintiff neither to the counsel for the plaintiff nor before the trial Court. When the counsel for the plaintiff came to know about the death of plaintiff, he himself went to the village of the plaintiff and informed about the pendency of the suit, thereafter an application under Order 22 Rule 3 of CPC was filed by the LRs of plaintiff with a delay of 165 days, however, the same was not accompanied with an application for condonation of delay in preferring the application.

4. Counsel further submitted that the respondent did not interfere with the possession of the disputed suit during the pendency of the trial before the Court below, however, suddenly they came with anti social elements and forcefully taken the possession of the suit land. A complaint was filed by the appellant before the concerned police station, hence counsel prayed that the respondents be injuncted not to interfere in the possession of the appellant over the suit property and the parties be directed to maintain the status quo as it exists today. Counsel relied upon the judgment of Hon'ble Supreme Court in the case of State of M.P. and Another vs. Pradeep Kumar and Another , (2000) 7 SCC 372 in support of his contention wherein Hon'ble Supreme Court while allowing the appeal held as that there is no rule prescribing the rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without accompanying the application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken u