Madhya Pradesh High Court
Deced. Haji Mohd. Yusuf Ansari Thru. ... vs Mohd. Salim on 15 September, 2015
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Writ Petition No. 4383/2015
15/9/2015
Shri U.Gajankush learned counsel for petitioners.
Shri V.R. Purohit, learned counsel for respondent.
Heard finally with consent.
This writ petition under Article 227 of the Constitution of India is at the instance of defendants in the suit challenging the order of trial court dated 17/4/2015 allowing the plaintiff's application under Order 22 Rules 4 & 9 of CPC as also the application under Section 5 of Limitation Act and bringing the legal representatives of deceased defendant on record.
Having heard the learned counsel for parties and on perusal of the record, it is noticed that the original defendant had died on 2/4/2014 and respondent had filed application under Order 22 Rules 3 & 4 of CPC on 21/4/2014 (Annex.P-4) but in the said application no date of death and details of LRs were disclosed. The respondent, thereafter had filed the application dated 25/8/2014 under Order 22 Rules 2,3,4 & 9 of CPC disclosing the date of death as also the details of legal representatives of deceased defendant. The said application was filed with a delay of 36 days, therefore, an application for condonation of delay was also filed under Section 5 of Limitation Act. The applications were duly supported by affidavit and the same have been allowed by the trial court by the impugned order. While allowing the said applications, the trial court has noted that delay was caused in filing the application since time was taken in collecting the details of LRs and the said fact is duly supported by -2- the affidavit of respondent. Trial court has also found that for disposal of the case, it is necessary to bring the LRs on record. Considering the circumstances, the trial court has rightly allowed the application under Order 22 Rules 4 & 9 of CPC. While condoning the delay in filing the application, though the trial court has not specifically mentioned that abatement is set aside but it is implicit in the order that abatement is set aside when the trial court has allowed the application under Order 22 Rule 9 CPC.
The view which has been taken by the trial court is duly supported by the judgment of the Supreme court in the matter of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others reported in AIR 1987 SC 1353, judgments of this court in the matter of Sital Prasad Saxena (dead) by Lrs. Vs. Union of India and others, reported in AIR 1985 SC 1 and Laxmi Chand (Deceased) through LRS and others Vs. Bhawati Bai & another, reported in ILR (2008) MP 1305.
Counsel for petitioners has placed reliance upon judgment of this court in the matter of Bharat Bhushan Paul Verma Vs. Union Bank of India and others, reported in 1991 JLJ 660 but that was a case where no application for setting aside the abatement was filed and delay was condoned without assigning any reason in one line order but in the present case not only the application under Order 22 Rule 9 CPC has been filed but the trial court has also passed the reasoned order. He has also placed reliance upon the judgment of Supreme court in the matter of Balwant Singh (Dead) Vs. Jagdish Singh & others, reported in AIR 2010 SC 3043, but the present -3- case is not a case where the application for bringing the legal representatives of the legal representatives on record was filed with an inordinate delay and no sufficient ground was raised. On the contrary there was only a marginal delay and the bonafide reason was also disclosed.
Thus, I am of the opinion that the impugned order passed by the trial court does not suffer from any patent illegality.
Even otherwise, the scope of interference in exercise of jurisdiction under Article 227 of Constitution of India is limited. The Supreme court in the matter of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has held that High court in exercise of its power of superintendence cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. The High court can exercise this power when there has been a patent perversity in the orders of tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
Keeping in view the aforesaid, I find no ground to interfere in the impugned order of the trial court. The writ petition is accordingly dismissed.
C.c. as per rules.
(PRAKASH SHRIVASTAVA) Judge BDJ -4-