Abatement of appeals does not terminate rights if technicalities prevent justice; parties can seek redress under procedural rules.

ORAL ORDER

Defendant No.23 in a suit in O.S.No.327/2001 on the file of Civil Judge and JMFC, Belthangady, D.K. ('Trial Court' for short) is before this Court being aggrieved by the order dated 06.03.2018 passed an her application filed under Order I Rule 10 of Code of Civil Procedure seeking to transpose herself as appellant in R.A. No.6/2014 pending consideration on the file of Prl. Sr.Civil Judge and JMFC, Belthangady, D.K. ('First Appellate Court' for short) arising out of the judgment and decree passed in the said O.S.No.327/2001.

2. Brief facts leading to filing of the present petition are that one Harish Rai, the plaintiff filed the above suit in O.S.No.327/2001 against defendant Nos.1 to 43 for relief of partition and separate possession of suit schedule properties contending inter-alia that the suit schedule properties had been allotted to one Smt. Rukmini under a partition dated 09.04.1954. That the said Rukmini had passed away leaving behind 5 children namely, Chandra Shetty, Appi, Lalitha, Prema and Vasantha Shetty. The plaintiffs and defendant Nos.1 to 30 are the descendants of said Rukmini.

3. It is further contended that defendant Nos.31 to 43 are the strangers to the family of the plaintiff and defendant Nos.1 to 30 having no share, right title in the property, were claimed share in the suit property. As such, the plaintiff has filed above suit for partition.

4. The Trial Court on merits while answering issue Nos.4, 5 and 7, it held that the plaintiff had failed to prove that the suit schedule property have been allotted to said Rukmini in partition dated 09.04.1954. It further held that the plaintiff had failed to prove that he and defendant Nos.1 to 30 belong to the family of said Rukmini. Based on these two findings, the Trial Court dismissed the suit.

5. As against the said judgment and decree dated 18.04.2012, the plaintiffs preferred appeal in R.A.No.6/2014. Plaintiff thereafter passed away on 29.11.2015. Things stood thus, the mother of the plaintiff who was defendant No.1 in the said suit, made application on 4.6.2016 seeking to transpose herself as appellant. It is submitted that even before the said application could be considered by the Trial Court, she passed away. Thereafter, the petitioner herein who was defendant No.23 in the said suit filed interlocutory application under Order I Rule 10(2) read with Order XXIII Rule 1(A) and 151 of Code of Civil Procedure , (IA No.V) seeking order to transpose herself as appellant in the said regular appeal. The said application came to be rejected by the First Appellate Court by the impugned order which is impugned in this writ petition.

6. Learned counsel for the petitioner reiterating the averments and grounds urged, relying upon the judgment of the Hon'ble Apex Court in the case of Bhagwan Swaroop and Ors. Vs. Mool Chand and Ors. reported in (1983)2 SCC 132, and also relying upon the order dated 16.12.2010 passed in WP No.37913/2010 by the Co-ordinate Bench of this Court, submits that the technicalities of filing application should yield to the requirement of disposal of the matter on merits. In that, merely because there is delay in filing the application by the petitioner/defendant No.23 to come on record, shall not be the reason for denying requirement of dispensation of justice. Referring to the impugned order, he further submits that the very premise on which the First Appellate Court has proceeded is erroneous in that the petitioner never contended herself to be the daughter of defendant No.1. He submits no doubt that plaintiff and defendant Nos.1 to 30 belongs to the family of Rukmini,