Order On Board

24/04/2019 (1) Original plaintiff – Shankar Lal Gupta filed a civil suit for specific performance of contract against original defendant – Smt. Snehlata Yadav. Shankar Lal Gupta died during the pendency of suit and his legal heirs were brought on record and, thereafter, sole defendant – Smt. Snehlata Yadav also died on 09.07.2016 and the information about her death was intimated before the trial Court on 24.07.2016. Application to this effect under Order 22 Rule 4 of the Code of Civil Procedure, 1908 (henceforth “CPC”) along with application under Section 5 of the Limitation Act was filed and that application was granted by the trial Court on 05.07.2017. Thereafter, an application for recall of the order dated 5.7.2017 was filed by one of the legal representatives of defendant namely – Jayesh Yadav, that was dismissed by the trial Court on 5.7.2018. The order dated 5.7.2018 was challenged by Jayesh Yadav, one of the legal representatives of original defendant – Snehlata Yadav before this Court in Writ Petition (227) No. 652 of 2018. This Court by order dated 1st August, 2018 set aside the order dated 5.7.2018 and directed the trial Court to decide the application under Section 151 of the CPC afresh. By the impugned order dated 17.12.2018, learned trial Court rejected the application under Section 151 of the CPC and consequently application under Order 22 Rule 4 of the CPC was also rejected, against which this civil revision under Section 115 of the CPC has been preferred.

(2) Shri P.R. Patankar, learned counsel appearing for the applicants would submit that the trial Court is absolutely unjustified in holding on the one hand that the application under Section 151 of the CPC has no merit and simultaneously on the other hand, the application under Order 22 Rule 4 of the CPC read with Section 5 of the Limitation Act has also been rejected and both the orders are contradictory to each other, therefore, it is liable to be set aside.

(3) Shri B.L. Parakh, learned counsel for the non-applicant, would submit that against the impugned order, appeal under Order 43 Rule 1(k) of the Code of Civil Procedure would be maintainable. He further submits that the trial Court is absolutely justified in rejecting the application under Order 22 Rule 4 of the CPC and consequently right in dismissing the suit, as such, revision petition is liable to be dismissed.

(4) I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and went through the record with utmost circumspection.

(5) Admittedly, the application under Order 22 Rule 4 of the CPC for substitution of defendant – Smt. Snehlata Yadav was granted by the trial Court without notice to legal heirs of defendant on 5.7.2017, which led to filing of application by one of the legal representatives of defendant, Jayesh Yadav for recall of the order dated 5.7.2017, which was rejected by the trial Court by order dated 5.7.2018, that was questioned before this Court. This Court by order dated 1.8.2018 passed in Writ Petition (227) No. 652 of 2018 set aside the order dated 5.7.2018 and directed the trial Court to decide the application under Section 151 of the CPC afresh. But this time, the trial Court has rejected the application under Section 151 of the CPC and also rejected application under Order 22 Rule 4 of the CPC read with Section 5 of the Limitation Act, which was granted earlier by order dated 5.7.2017.

(6) The trial Court failed to appreciate the order passed by this Court in Writ Petition (227) No. 652 of 2018 wherein this Court has only directed to consider the application for recall of the order dated 5.7.2018. The order dated 5.7.2017 could have been set aside only if order dated 5.7.2018 is recalled and application for substitution is restored to its original number for hearing and disposal in accordance with law.

(7) Be that as it may, this Court is satisfied that sufficient cause has been shown for delay in filing the applicati