Jammu & Kashmir High Court
Suraj Parkash Badyal And Another vs Chander Molli Badyal And Others on 20 December, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No. 39
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OW104 No. 22/2017
Suraj Parkash Badyal and another .....Appellant(s)/Petitioner(s)
Through: Mr. Vijay Gupta, Advocate.
Vs
Chander Molli Badyal and others ..... Respondent(s)
Through: Mr. Pawan Kumar Maini, Advocate.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
20.12.2022
1. Through the medium of the instant petition filed under Article 227 of the Constitution of India (previously under Section 104 of the Constitution of the Jammu and Kashmir), the petitioners have questioned the order dated 30.11.2016 (for short impugned order) passed by the learned 1st Additional District Court, Jammu (for short Court below) whereby the time barred application for setting aside the abatement of the suit filed by the petitioners herein against the respondents came to be dismissed and suit was held to have abated against the deceased-defendant No. 3.
2. The background facts emanating from the petition would reveal that a suit for enforcement of right of prior purchase came to be filed by the petitioners herein against the respondent Nos. 1, 2, 4 & 5 and the predecessors-in-interest of respondent No. 3, namely, Vijay Kumar.
3. During the pendency of the suit, an application came to be filed by the respondent No. 5 herein stating therein that the suit stands abated insofar as defendant No. 3-Vijay Kumar is concerned on the ground that the said Vijay Kumar had died long before during the pendency of the suit. 2 OW104 No. 22/2017
4. A composite application came to be filed, by the petitioners/plaintiffs on 30.09.2015 for setting aside abatement as also for substitution of deceased- defendant No. 3 by his legal representatives. The said application was followed by another application filed by the petitioners/plaintiffs on 24.07.2016 seeking condonation of delay in filing the application for setting aside abatement as also for substitution of legal representatives of the deceased-defendant No. 3.
5. It is significant to mention here that the said applications came to be filed by the petitioners/plaintiffs before the appellate court i.e. 1st Additional District Court, Jammu wherein the Civil 1st Appeal had been filed by the petitioners herein against the judgment and decree passed by the Sub Judge, Jammu dated 20.03.2001 upon adjudication of the suit filed by the petitioners/plaintiffs. It is the said Court below which considered the applications filed by the plaintiffs/petitioners herein as appellants and dismissed the same in terms of impugned order dated 30.11.2016.
Heard learned counsel for the parties and perused the record.
6. It is not in dispute, as it emerges from the record, that the death of the defendant No. 3 came to be reported by the respondent/defendant No. 5, upon laying a motion on 29.09.2015 while seeking dismissal of the suit for having been abated against the said/defendant No. 3.
7. It is also not in dispute that a composite application came to be filed by the petitioners/plaintiffs on 30.09.2015 seeking setting aside of the abatement of the suit qua defendant No. 3 as also for substitution of his legal representatives. It is also an admitted position that the said application filed by the petitioners/plaintiffs was followed by another application filed on 04.07.2016 by the petitioners/plaintiffs seeking condonation of delay in maintaining the application 3 OW104 No. 22/2017 for setting aside abatement and brining on record the legal representatives of the deceased/defendant No. 3.
8. A perusal of the impugned order in particular, reveals that the same has been passed by the Court below on the premise that the application seeking condonation of delay has been laid by the petitioners/plaintiffs on 04.07.2016 much after the filing of the application seeking setting aside of abatement and substitution of the legal representatives of the deceased defendant No. 3, over looking the fact that the initial application filed by the petitioners/plaintiffs herein had been a composite application filed on the very next day i.e. 30.09.2015 when the death of the defendant No. 3 was reported by the respondent/defendant No. 5 on 29.09.2015 before the Court below and the trial court indisputably has proceeded on a wrong premise and rejected the process and also the application while passing the impugned order.
9. Law is no more res-integra and there has been a long line of decision of the Apex Court on the subject of Order 22 of the Code of Civil Procedure, wherein it has been the consistent view that the provisions of Order 22 CPC are not penal in nature and that it is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspect of the law. A reference in this regard to the judgment of the Apex Court passed in case titled "Banwari Lal (D) By Lrs. and another v Balbir Singh" reported in 2016(1) SCC 607 would be relevant and germane wherein at Paras-10 and 11, following has been observed and laid down:
"10. Provisions of Order 22 CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta, 4 OW104 No. 22/2017 (2003) 3 SCC 272, a Five Judge Bench of this Court have held as under:-
"26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non- suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just 5 OW104 No. 22/2017 or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice..."
(Underlining added)
11. In Sital Prasad Saxena (D) by Lrs. v. Union of India and Ors., (1985) 1 SCC 163, it was observed that the rules of procedure under Order 22 CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order cannot be sustained."
10. Having regard to the facts and circumstances noticed in the preceding paras as also the position and principles of law laid down in the judgment (supra) by the Apex Court, the impugned order does not survive, as a consequence whereof, the instant petition deserves to be allowed.
11. Accordingly, the petition is allowed and the impugned order dated 30.09.2016 is set aside, as a corollary whereof, the application filed by the plaintiffs/petitioners for setting aside the abatement and substitution of legal representatives of deceased-defendant No. 3 is allowed.
12. The trial Court shall proceed further in the matter expeditiously and parties shall appear before the trial court on the date fixed.
13. Disposed of, accordingly.
(JAVED IQBAL WANI) JUDGE Jammu 20.12.2022 Shivalee Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No