Himachal Pradesh High Court
Bhago & Ors vs . Gianoo & Ors on 30 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
.
Bhago & ors vs. Gianoo & ors RSA No.268/2009 30.12.2022 Present: Mr. B.C. Verma, Advocate, for the appellants-applicants.
Mr. Ajay Singh Kashyap, Advocate, for the respondents/non-applicants.
CMP (M) No.1698/2022 & CMP (M) No.1699/2022 By way of instant applications filed under Order 22 Rule 3 CPC and Section 5 of the Limitation Act, prayer has been made on behalf of the applicants-appellants for bringing on record the LRs of deceased appellant No.1 (c) Gurnam Singh, who has expired on 23.6.2022, leaving behind his LRs, as detailed in para-2 of the application bearing CMP (M) No.1698/2022, after condoning the delay and setting aside the abatement, if any. No reply to the application has been filed on behalf of the non-applicants/respondents.
Having perused the averments contained in the application, which is duly supported by an affidavit as well as document annexed therewith, this Court finds that deceased appellant No.1 (c) Gurnam Singh, has expired on 23.6.2022, leaving behind his LRs, as detailed in para-2 of the application bearing CMP (M) No.1698/2022. Since family members of deceased appellant No.1 (c) Gurnam Singh i.e his LRs, as detailed in para-2 of the application, were not aware of the pendency of aforesaid case, they could not file application for substitution. Factum with regard to pendency of the petition filed on beahlf of appellant No.1 (c) came to the notice of LRs of deceased appellant No.1 (c). Having perused the explanation rendered in the application, this Court is convinced and satisfied that delay in maintaining the application is neither intentional nor willful, rather same has occurred on account of the circumstances, which were completely beyond ::: Downloaded on - 30/12/2022 20:36:40 :::CIS .
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RSA No.268/2009
the control of the applicants-appellants and as such, delay in filing the application is condoned. Abatement, if any, is set a side. Since right to sue survives in favour of the LRs propsoed to be substituted in place of appellant No.1 (c), there appears to be no impediment in accepting the prayer made in the application.
Consequently, in view of the above, the present applications are allowed and the persons named in para-2 of the application bearing CMP (M) No.1698/2022, are ordered to be substituted in place of deceased appellant No.1
(c), whose name is ordered to be deleted from the array of the parties.
Registry is directed to carry out necessary correction in the memo of parties on the basis of the amended memo of parties annexed with the application.
The applications stand disposed of.
RSA No.268/2009
Since Mr. B.C. Verma, learned counsel representing the appellants, appears on behalf of the newly impleaded appellants, there is no necessity to issue notice. He prays for and is granted four weeks' time to file Power of Attorney on behalf of the newly impleaded appellants.
Since the main appeal has already been admitted and parties are duly represneted by the learned counsel.
List the case for hearing in due course. Records of the learned Courts below be called for, if not received.
(Sandeep Sharma) ::: Downloaded on - 30/12/2022 20:36:40 :::CIS .
Judge
30th December, 2022
(CS)
r to
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