Punjab-Haryana High Court
Jaswant Kaur vs Din Dayal on 16 November, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
FAO No.1153 of 1993 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
FAO No.1153 of 1993
Date of decision: 16.11.2012
Jaswant Kaur ... Appellant
Vs.
Din Dayal ... Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. G.S.Punia. Advocate
for the appellant.
*****
A.N. Jindal, J The first Appellate Court, vide order dated 04.05.1993, declining the application filed by Jaswant Kaur-appellant for condonation of delay in filing the application for impleading her as legal representative of Gurdas Singh and for setting aside the abatement of the appeal.
Factual matrix of the case is that Din Dayal, plaintiff- respondent had filed a suit for mandatory injunction against defendant-Gurdas Singh, which was decreed on 26.10.1988. thereafter, Gurdas Singh preferred an appeal. During the pendency of the appeal, the appellant had died on 23.01.1990 leaving behind his wife Jaswant Kaur-appellant, who, on the basis of a Will dated 06.12.1982, moved an application for impleading her as legal representative of Gurdas Singh on 01.02.1991.
The said application was opposed on the ground that the same was time barred and the appeal had already stood abated. Thereafter, the appellant moved another application for condonation FAO No.1153 of 1993 -2- of delay and for setting aside the abatement of appeal, which was dismissed by the First Appellate Court on 04.05.1993.
Heard.
The relevant part of Order 22 Rule 3(2) of CPC is reproduced as under:
"Rule 3(2): Where within the time limited by law no application is made under Sub Rule (1) the suit shall not abate as against the deceased plaintiff and the judgment may be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place, and the contract between the deceased and the pleader in that event shall continue to subsist."
Though, the application was not within time, yet she made the explanation for filing the delayed application to the effect that the appellant is an old lady of 70 years and is not aware of intricacies of law. She had communicated the factum of death of Gurdas Singh to her counsel Sh. Joginder Singh, but he did not file any application within time, as he was of the bona fide impression that in the light of the judgment titled as Har Devi vs. Joginder Singh, 1988(2) 94 PLR 183, limitation for filing the application for bringing on record the legal representatives of deceased was three years.
Though the aforesaid judgment was later on over-ruled, yet the counsel for the appellant was under bona fide impression that the limitation for filing the application was three years. Even otherwise, later on Rules 2 & 3 of the Order 22 of CPC had been amended while making a provision that the suit or appeal shall not FAO No.1153 of 1993 -3- be abate on the death of the sole plaintiff/appellant. The underlying idea was not to give more weight to abatement, but to adjudicate the lis on merits. Thus, taking into consideration all the facts and circumstances of the case, this court is of the view that the application for condonation of delay was wrongly declined by the First Appellate Court.
Resultantly, this appeal is accepted; the impugned order is set aside and the appellate court is further directed to proceed in accordance with law.
November 16, 2012 (A.N. Jindal) sonia/ajp Judge