Rajasthan High Court - Jaipur
Smt Indra Devi vs Ragjav Dass Goyal And Another on 19 October, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 425/2014
Smt Indira Devi (deceased) through LR.
----Appellant
Versus
Deputy Collector, Gangapur City
----Respondent
Connected With S.B. Civil Miscellaneous Appeal No. 399/1997 Hanuman & Anr.
----Appellants Versus The Sub Divisional Officer & Ors.
----Respondents S.B. Civil Restoration Application No. 89/2020 In S.B. Civil Misc. Appeal No.582/1997 Smt Sarojani Devi W/o Shri Suraj Narayan
----Appellant Versus Raghav Das Goyal, Advocate, S/o Shri Shyam Lal & Ors.
----Respondents For Appellant(s) : Mr. S K Gupta, Sr. Advocate assisted by Ms. Surabhi Agarwal & Mr. Rahul Sharma (For appellant in CMA No.399/1997) Mr. Siddharth Bapna (For appellant in CFA No.425/2014) Mr. Harshad Kapoor (For petitioner in Rest. Application No.89/2020) For Respondent(s) : Ms. Anita Agarwal with Mr. Laxmi Kant (For respondent in CFA No.425/2014, in CMA No.399/1997 & For respondent No.4 in Rest. Application No.89/2020) HON'BLE MR. JUSTICE SUDESH BANSAL Order 19/10/2022 In S.B. Civil Restoration Application No. 89/2020:-
1. The instant restoration application under Order 41 Rule 19 CPC has been filed, seeking restoration of Civil Misc. Appeal No.582/1997, by legal representatives of appellant-Sarojni Devi, who filed an appeal challenging the order dated 05.04.1997, (Downloaded on 25/12/2022 at 11:37:05 AM) (2 of 10) [CFA-425/2014] passed in Civil Misc. Case No.14/1978 by the Court of Additional District Judge, Gangapur City, allowing application under Order 21 Rule 97 CPC filed by respondents/decree-holders/trustees.
2. It has been contended that the instant civil misc. appeal was filed within limitation against the order dated 05.04.1997, allowing application of decree holders/trustees under Order 21 Rule 97 CPC, to dispossess appellant with police assistance and since appellant claimed her independent right different from her husband i.e. Suraj Narain, who was the judgment debtor, therefore, appellant had a strong case to be heard on merits in the appeal. It has been stated that the impugned order dated 05.04.1997 has been challenged by other similarly situated persons namely Smt. Indra Devi, by way of filing Civil Misc.
Appeal No.364/1997 (which now has been converted and registered as Civil First Appeal No.425/2014) and by Hanuman and Mohan Lal, by way of Civil Misc. Appeal No.399/1997 and in all appeals, respondents-trustees are common.
3. In instant misc. appeal No.582/1997, Hon'ble Court issued PF and notices to respondents and ordered to tag the appeal with other appeals vide order dated 22.08.1997. Since the advocate of the appellant did not file PF and notices, therefore, appeal was dismissed in default and for non-prosecution vide order dated 05.08.2002.
4. Applicants, after having knowledge about the dismissal of their appeal in default and for non-prosecution have filed the restoration application on 30.01.2020. Since the restoration application is highly belated, separate application (CMCC No.722/2020) under Section 5 of the Limitation Act has also been (Downloaded on 25/12/2022 at 11:37:05 AM) (3 of 10) [CFA-425/2014] filed. An application No.2/2022 under Order 22 Rule 3 and an application No.3/2022 under Order 22 Rule 9, read with Section 151 CPC has been filed stating inter alia that appellant Smt. Sarojini Devi died on 07.11.2008 and out of her legal representatives, applicant No.1/1 Suraj Narain (her husband) has died, applicant No.1/2 Ashutosh Parashar and applicant No.1/6 Dinesh Parashar, her two sons, have also died. Death certificates of appellant and respective deceased applicants have been placed on record. Therefore, surviving legal representatives have filed the restoration application, seeking their substitution in place of deceased appellant, in order to pursue the restoration application.
5. Copy of restoration application and applications for condonation of delay and seeking substitution of legal representatives of deceased appellant, have been made available to counsel for respondent No.4, who is appearing for the same respondent in other two connected appeals i.e. SB CFA No. 425/2014 (Old CMA No.364/1997) and CMA No.399/1997.
6. Heard counsel for both parties and perused the record.
7. It is not in dispute that the order dated 05.04.1997 is common which was challenged by way of three different appeals, CMA No.364/1997 which has now been converted and registered as Civil First Appeal No.425/2014 titled Smt. Indra Devi Vs. Raghav Das, CMA No.399/1997 titled Hanuman Vs. Gulab Chand as well as present Civil Misc. Appeal No.582/1997 titled Sarojni Devi Vs. Raghav Das. Other two appeals are listed today for hearing. It appears that the line of defence and challenge to the impugned order dated 05.04.1997 is also in sum and substance similar in all three appeals. No doubt there is an exorbitant and (Downloaded on 25/12/2022 at 11:37:05 AM) (4 of 10) [CFA-425/2014] gross delay in filing the restoration application, however, it may not be inferred that there is any mala fides on the part of applicants or deliberate inaction, in moving the restoration application belated.
8. It is not in dispute that since the execution of the decree and dispossession of objectors are stayed in other connected appeals, respondents/trustees/decree holders have not proceeded with the execution to dispossess legal representatives of deceased appellant-Sarojini Devi during this long period, despite of dismissing her appeal in non-prosecution way back on 05.08.2002. As per record, it has been informed that after dismissal of appeal for non-prosecution, appellant Sarojni Devi died and out of legal representatives, her husband-Suraj Narain and two sons-Ashutosh and Dinesh had also died. Appellants Sarojini Devi died on 07.11.2008 and her son Ashutosh died on 10.02.2012. Applicants have stated that they were not aware about the dismissal of one appeal and were under impression that all three appeals would be heard simultaneously and together.
9. Hon'ble Supreme Court in case of N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] and followed in the case of B Madhuri Goud Vs. B. Damodar Reddy [(2012) 12 SCC 693], has observed that condonation of delay is a matter of discretion of the court and length of delay is no matter, acceptability of the explanation is the only criteria. Finally, the Apex court held as under:
"10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the court in (Downloaded on 25/12/2022 at 11:37:05 AM) (5 of 10) [CFA-425/2014] different situations in not because on the expiry of such time a bad cause would transform into a good cause.
11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
In case of Ram Nath Sao Vs. Gobardhan Sao [(2002) 3 SCC 195], the Apex Court held that "sufficient cause" be construed liberally and while condoning the delay, balance of interest and stake involved in the subject matter be taken into consideration.
In Case of Commissioner, Mysore Urban Development Authority Vs. S.S. Sarvesh [(2019) 5 SCC 144], the Apex Court has observed that the Court should make an endeavor to decide the appeal on merits, instead of declining to restore the appeal. Indeed, dismissal of the appeal in default and dismissal of the appeal on merits makes a difference.
10. Having considered the afore-stated factual aspect and keeping in mind the law as expounded by Hon'ble the Supreme (Downloaded on 25/12/2022 at 11:37:05 AM) (6 of 10) [CFA-425/2014] Court, no prejudice would be caused to the contesting respondent, if legal representatives of deceased appellant Sarojini Devi are allowed to be substituted and restoration application may be allowed, to hear the present appeal on merits with other connected appeals.
11. Ordinarily, this Court would not have inclined to condone such exorbitant delay nonetheless, taking into consideration the peculiar facts of present case as stated hereinabove, as much as taking into consideration the fact that two other connected appeals, wherein the impugned order under challenge is same and yet to be decided on merits, this Court deems it just and proper to condone the delay in the larger interest of justice so that the present appeal may also be heard and considered on merits.
12. As a result, applications under Order 22 Rule 3 & 9 CPC are allowed, abatement of appeal is set aside, legal representatives of deceased appellant Sarojini Devi, named in the application, are allowed to be taken on record, in the restoration application as well in the instant misc. appeal. Amended cause title be filed.
13. In view of above, application under Section 5 of Limitation Act to condone the delay in filing the restoration application, is allowed, the delay is condoned and accordingly restoration application No.89/2020 is allowed. Copy of memorandum of appeal produced along with restoration application be placed in the original file of Civil Misc. Appeal No.582/1997.
14. S.B Misc. Appeal No.582/1997 is restored to its original number. Amended cause title be also filed in the file of first appeal.
In S.B. Civil Miscellaneous Appeal No. 399/1997:- (Downloaded on 25/12/2022 at 11:37:05 AM)
(7 of 10) [CFA-425/2014]
15. The instant misc. appeal is listed with CFA No.425/2014 against the same order dated 05.04.1997 for hearing.
16. During course of hearing, it transpires that applications under Order 22 Rule 3 & 9 CPC and Section 5 of the Limitation Act, to take legal representatives of both appellants on record, who have passed away during course of appeal, are pending.
17. Heard counsel for both parties on pending applications under Order 22 Rule 3 & 9 CPC and Section 5 of the Limitation Act.
18. This appeal was filed by two appellants Hanuman and Mohan Lal, way back on 30.04.1997, challenging the order dated 05.04.1997, allowing application of respondent-decree holder under Order 21 Rule 97 CPC and to provide police assistance to take possession of the suit property from appellants. The impugned order dated 05.04.1997 has also been challenged by the Smt. Indra Devi by way of filing CMA No.364/1997, which has been converted later on and registered as CFA No.425/2014 titled Smt. Indra Devi Vs. Raghav Das.
19. During course of appeal, appellant No.1 Hanuman is said to be died on 10.08.2011 and appellant No.2 Mohan Lal is said to be died on 20.10.2006, hence their respective legal representatives have filed applications on 14.02.2018, seeking their substitution in place of both deceased appellants and have prayed to condone the delay and set aside the abatement. It has been stated that applicants were not aware about filing of present appeal by their predecessors and they came to know only when they received notice from the counsel who had appeared in the present appeal on behalf of their predecessors. It has been further stated that delay in filing application is not deliberate and applications have (Downloaded on 25/12/2022 at 11:37:05 AM) (8 of 10) [CFA-425/2014] been moved soon after having knowledge, therefore, the delay may be condoned in the interest of justice by setting aside abatement and legal representatives of both deceased appellants, as detailed out in the application may be allowed to be substituted in place of deceased appellants and be taken on record to pursue the appeal on merits.
20. Counsel appearing on behalf of contesting respondent, has filed reply to applications and has contested the same.
21. Having heard counsel for both parties and from perusal of record, it is not in dispute that connected appeal I.e. CFA No.425/2014 (Old CMA No.364/1997) titled Indra Devi Vs. Raghav Das, wherein the same impugned order dated 05.04.1997 is under challenge, is yet to be considered on merits and no mala fides have been attributed to applicants in moving the application seeking substitution belated as much as applicants have expressed their want of knowledge about the present appeal, therefore, on such peculiar circumstances, this Court in the interest of justice, deems it just and proper that the delay deserves to be condoned and abatement of appeal be set aside as well as legal representatives of deceased appellants may be allowed to be substituted and taken on record.
22. The Hon'ble Supreme Court in case of Ram Nath Sao (Supra) has observed that expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963 or Order 22 Rule 9 CPC or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a (Downloaded on 25/12/2022 at 11:37:05 AM) (9 of 10) [CFA-425/2014] party and balance of interest and stake involved in the subject matter be taken into consideration.
In another case of Perumon Bhagvathy Devaswom Vs. Bhargavi Amma [(2008) 8 SCC 321], the Apex Court held as under:
"19. Thus it can safely be concluded that if the following three conditions exist, the courts will usually condone the delay, and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party - LRs of the deceased - on account of the abatement):
(i) The respondent had died during the period when the appeal had been pending without any hearing dates being fixed;
(ii) Neither the counsel for the deceased respondent nor the Legal Representatives of the deceased respondent had reported the death of the respondent to the court and the court has not given notice of such death to the appellant.
(iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim."
23. Having considered the aforesaid factual aspect and keeping in mind the law as expounded by Hon'ble the Supreme Court in aforesaid judgments, no prejudice would be caused to the respondent, if legal representatives of deceased appellants are allowed to be substituted, to hear the present appeal on merits with other connected appeals.
24. As a result applications under Order 22 Rule 3 & 9 CPC along with Section 5 of the Limitation Act stand allowed. The delay is condoned. Abatement of appeal is set aside. Legal representatives of deceased appellants named in the application are allowed to be (Downloaded on 25/12/2022 at 11:37:05 AM) (10 of 10) [CFA-425/2014] substituted. Amended cause title enclosed with application is taken on record.
25. Arguments, in respect of all three present appeals i.e. S.B. Civil First Appeal No.425/2014, S.B. Civil Misc. Appeal No.399/1997 & S.B. Misc. Appeal No.582/1997 have heard on merits and concluded.
26. Judgment is reserved.
(SUDESH BANSAL),J SACHIN/93-95 (Downloaded on 25/12/2022 at 11:37:05 AM) Powered by TCPDF (www.tcpdf.org)