HARCHARAN SINGH & ANR v. JAI SINGH & ORS

1. By way of this petition, a challenge has been made to the order dated May, 2011 by which the learned Civil Judge has allowed the application of the respondents/plaintiffs under Order 22 Rule 3 and 9 CPC for bringing on record the L.Rs of deceased plaintiffno.4.

2. A suit for recovery of possession, damages/mesne profits and for mandatory injunction was filed by plaintiffs 1 to 3 i.e., respondents 1 and 3 herein along with deceased Shri Pratap Singh i.e. plaintiff no.4 before the learned trial court against the petitioners i.e., defendants before the learned trial court in the year 2003.

3. During the pendency of the suit, plaintiff no.4 died on 20^^ August,

2009. On 15"^ November, 2010, aforesaid application was moved b> respondents 1 to 3/plaintiffs stating therein that they are illiterate and were ignorant of procedure of law, as such, could not move an application within CM(M) 921/2011 2013:DHC:7568 the period of limitation. It was stated that respondent no.1/plaintiffno.l contacted the counsel on 15.11.2010 and informed about the demise of aforesaid plaintiff no.4 and thereupon the counsel advised them for moving an application for bringing on recordthe L.Rs of deceasedplaintiff no.4 &ad accordingly, the apphcation was filed. In the said application, a prayer was also made that delay in moving the application be condoned and L.Rs of deceased plaintiffno.4 be brought on record.

4. The said application was opposed by the petitioners/defendants by contending that there was a delay of one year in movingthe said application and no justified reasons have been given for condoning the delay, as such, / xj application is hableto be rejected.

5. After hearing learned counsel for the parties, the learned Civil Judge has allowed the application for bringing on record the L.Rs of deceased plaintiff no.4 subject to payment of costs of ? 500/-. Aggrieved with the same, present petition is filed.

6. Learned counsel for the petitioners/defendants has contended that there was a delay of one year in moving the apphcation for bringing on record the L.Rs of deceased respondent no.4/plaintiff no.4 and no sufficient cause was given, as such, the learned trial court ought not have allowed the % application.

7. On the other hand, learned counsel for the respondents/plaintiffs has submitted that respondents/plaintiffs are illiterate persons and they were not aware that application for bringing on record the L.Rs of deceased plaintiff no.4 was to be moved within 90 days. It is stated that on 15'*' November, 2010 when respondent no.l/plaintiff no.l had contacted the counsel and apprised him about the death of plaintiff no.4, counsel informed that they CM(M) 921/2011 Page[2] of[5] -sj were required to move an application for bringing on record the L.Rs ot deceased plaintiff no.4. Accordingly, immediate steps were taken aud application was moved. Learned counsel for the respondents/plaintiffs has submitted thatthere was justified reasons in allowing theapplication and the impugned order is legal and valid and does not call for interference ofthis court.

8. The finding ofthe learned trial court in allowing the application is as under "Heard. Perused. Perusal of the records show that on 27.08.2010, Ld.Counsel for the defendant has submitted that plaintiff no.4 has expired long back. Upon his submission, the plaintiffwas directed to take steps. On the next date ofhearing, the present application was filed by the plaintiff. Though the present application has been moved much beyond the period of limitation of90 days asprovided under Order 22 CPC read with article 120 ofthe Schedule of the Limitation Act, however, it is.a well settled principle of law that procedural law is merely the handmade of justice. The substantive rights of the parties should not suffer on account oftechnalities. In view of the above discussion, the present application is allowed subject to cost of Rs. 500/-, payable bythe LRs of the plaintiff no.4 to the defendant on the next date of hearing. Amended memo ofparties be filed onthe next date ofhearing."

9. In Ram Nath Sao @ Ram Nath Sahu and ors Vs. Gobardhan Sao and ors; JT2002(2)SC349, wherein a partition suit was decreed by the trial court. The samewas challenged by way of appeal beforethe learned Single Judge of the Jharkhand High Court. During the tendency of appeal, four appellants had died and appeal was dismissed as having become incompetent as no steps were taken for substitution of their L.Rs within the time prescribed. An LPA was filed which was also dismissed by the CM(M) 921/2011 Page 3 of[5] Xj'. Division Bench of the Jharkhand High Court. On the challenge of the said decision, the Supreme Court after considering its earlier decisions on the subject matter, held that the expression "sufficient cause" under Section 5of the Limitation Act/Order 22 Rule 9 CPC should receive a liberal construction so as to advance substantial justice. In the said case, ground was that appellants therein were rustic and illiterate villagers and as soon as their lawyer advised, they moved an application with utmost expedition. The relevant para ofthe judgment is reproduced as under

11. Thus it becomes plain that,the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want ofbona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendencv of finding fault with the cause shown and reject the petition bv a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting partv. On the other hand, while considering the matter the courts should not lose sight of the fact thatby not taking steps within the time prescribed a valuable right has accrued to the other party which should not belightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and CM(M) 921/2011 Page 4 of[5] defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect ofthe order it is going to pass upon the parties either way."

10. The facts ofthe present case are almost same.

11. The learnedtrial courthas rightly condoned the delay and allowed the application for bringing onrecord theL.Rs ofdeceased plaintiffno.4. No illegality is seen in the impugned order which xalls for interference of this court. Petition is dismissed. No costs. A APRIL 01, 2013 ssb CM(M) 921/2011 VEENA BIRBAL, J