Punjab-Haryana High Court
Sushil Kumar And Others vs Smt. Dhanpati And Others on 20 November, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.2223 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.2223 of 2013
Date of Decision:20.11.2013
Sushil Kumar and others
...Petitioners
Versus
Smt. Dhanpati and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to
see the judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Manish Kumar, Advocate,
for the petitioners.
Mr. Manoj Kumar, Advocate,
for respondent no.1.
****
PARAMJEET SINGH, J.(Oral)
Instant revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 02.02.2013 (Annexure P-4) passed in review application and order dated 04.12.2012 (Annexure P-3) passed by learned Civil Judge (Jr. Divn.), Bahadurgarh Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 2 in Civil Suit No.580 dated 16.05.2008 (Annexure P-1), captioned as "Chameli and another vs. Smt. Dhanpati and others", whereby learned Civil Judge (Jr. Divn.), Bahadurgarh has dismissed the review application and application for impleading the LRs of Smt.Angoori respectively.
It is the case of the petitioners that plaintiffs-Chameli and Angoori filed suit for permanent injunction. During the pendency of suit, plaintiff no.2-Angoori Devi expired on 17.10.2012 at Delhi. Thereafter, the petitioners filed application for impleading themselves as legal heirs of Angoori Devi which has been dismissed vide impugned order dated 04.12.2012 observing that the application has been moved after expiry of period of limitation and no application for condonation of delay has been filed along with. The application filed to review the order dated 04.12.2012 has also been dismissed vide order dated 02.02.2013. Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioners has vehemently contended that Rules and Orders of this High Court have been amended and as per the amended provisions, there is no limitation prescribed for bringing on record legal representatives of the deceased. The petitioners are rustic villagers and illiterate, who must not be victimized owing to the improper legal advise. The learned counsel has further contended that the amendment made in the Rules and Orders of the High Court by Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 3 Punjab and Haryana High Court protects the rights of illiterates and the same has been made keeping in view the fact that the decision takes long time. Even if a party does not approach his/her counsel on hyper- technical grounds, suit should not be dismissed as abated.
On the other hand, learned counsel for respondent no.1 has vehemently opposed the contentions made by learned counsel for the petitioners and contended that plaintiff no.2-Angoori expired on 17.10.2010 and a considerable period has already been lapsed which is beyond the period of limitation. The delay has not been explained. The learned counsel has further contended that the period of limitation for filing application for bringing on record legal representatives of deceased-plaintiff is 90 days from the date of death as provided under Article 120 of the Limitation Act. The learned counsel has made reference to Order 22 Rule 3 (i) and (ii) of the Code of Civil Procedure (in short "the CPC"). The learned counsel has further contended that the amendments made to Order 22 Rule 3 CPC by this Court prior to coming into force the Amendment Act, 2002 to the CPC stand repealed and the same has been specifically repealed under Section 16 of the said Act.
Having heard learned counsel for the parties and perused the record, I am inclined to set aside the impugned orders passed by the trial Court.
Though the amended provisions may not be strictly applicable in the facts of the present case, but keeping in view the intention of the State Legislature and subsequent amendment, in case a party dies, the Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 4 suit should be decided on merits. The circumstances of the present case are sufficient to condone such delay specifically when amendment has been carried out and the illiterate persons are not aware of the same. The amendment which has taken place in year 1992 is explanatory in nature whereby it has been added that even if no application for impleading legal representatives is filed, the suit shall not abate. The peculiar facts of the present case are to the effect that the parties are rustic villagers and are not well-versed in law. The illiterates must not be victimized owing to improper legal advice. The Court cannot expect ignorant, illiterate and poverty-stricken people to know the legal provisions, when they are at conflict. Here is a case where this High Court has specifically made amendment in the Order 22 Rules 3 and 4 of the CPC to the effect that even if no application for bringing legal representatives on record is moved, the suit shall not abate. The contention of the learned counsel for respondent no.1 is that the impugned orders are well- reasoned, because application for bringing on record legal representatives of deceased-plaintiff no.2 was not moved within the stipulated period.
The Hon'ble Supreme Court in Bhagwan Swaroop v. Mool Chand (1983) 2 SCC 132 has held that court's approach should be oriented with a view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 5 penalties.
The Hon'ble Supreme Court in Ram Sumiran v. D.D.C (AIR 1985 SC 606) has observed that in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time.
Bearing in mind the above observations and principles laid down by the Hon'ble Supreme Court to achieve the substantial and complete justice to the parties, the approach of the trial Court in not permitting the LRs to be brought on record appears to be unjustified. All the substantial rights of the parties should be adjudicated upon by the Court on merits and not on technicalities. The impleading of parties is purely procedural failure to do which can never be allowed to come in the way of doing full and complete justice to the parties.
The The Hon'ble Supreme Court in Rama Ravalu Gavade v. Sataba Gavadu Gavade (1997 (1) SCC 261) while dealing with the failure of the learned counsel to give proper advice to an illiterate farmer has held as follows:-
"6. In view of the fact that the appellant is an illiterate farmer, the appropriate steps should have been taken by the counsel for the appellant on proper advice. In view of the fact that the counsel has not properly advised the appellant to take necessary steps, delay had occasioned. The High Court, therefore, was not right in Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 6 refusing to condone the delay. It is brought to our notice that no application has been filed for setting aside the abatement and the appeal also stands abated. In view of the fact that the delay now stands condoned the abatement also stands set aside."
The aim of the Court should be to render substantial justice and the procedure is only a hand-maid of justice. The appropriate approach should be oriented only towards rendering substantial and complete justice and the technical rules of procedure should not be given precedence over substantial justice. At this juncture, it would be appropriate to refer another judgment of the Hon'ble Supreme rendered in Rudrappa K. v. Shivappa [2004 (5) CTC 365] in paragraph Nos.10 and 11 whereof it has been held as follows:-
"10.......The case of the appellant before the district court was that he was not aware of the pendency of the appeal filed by his father against the order passed by the Tehsildhar. The father of the appellant died in June, 1994 and the appellant came to know about the pendency of appeal somewhere in September, 1994 when he received a communication from the advocate engaged by his father. Immediately, therefore, he contacted the said advocate, informed him regarding the death of his father and made an application. In such circumstances, in our opinion, the learned Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 7 counsel for the appellant is right in submitting that a hyper - technical view ought not to have been taken by the District Judge in rejecting the application inter alia observing that no prayer for setting aside abatement of appeal was made and there was also no prayer for condonation of delay. In any case, when separate applications were made, they ought to have been allowed. In our opinion, such technical objection should not come in doing full and complete justice between the parties. In our considered opinion, the High Court ought to have set aside the order passed by the District Court and it ought to have granted to prayer of the appellant for bringing them on record as heirs and legal representatives of deceased Hanumanthappa and by directing the District Court to dispose of the appeal on its own merits. By not doing so, even the High Court has also not acted according to law.
11. Very recently, almost an identical case came up for consideration before us in Ganeshprasad Baddrinarayan Lahothi (D) by L.R. V. Sanjeevprasad Jamnaprased chourasiya and another, civil appeal No. 5255 of 2004, decided on August 16, 2004, the appellants heirs and legal representatives of deceased Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 8 Ganeshprasad were not aware of an appeal filed by the deceased in the District Court, Jalgoan against the decree passed by the trial court. When the appeal came up for hearing the advocate engaged by the deceased wrote a letter to Ganeshprasad which was received by the appellants and immediately, they made an application for bringing them on record as heirs and legal representatives of the deceased. The application was rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay. The appellants, therefore, filed separate applications which were also rejected and the order was confirmed by the High Court. We had held that the application ought to have been allowed by the courts below. We, therefore, allowed the appeal, set aside the orders of the District Court as well as of the High Court and allowed the applications. In our opinion, the present case is directly covered by the ratio in the said decision and the orders impugned in the present appeal also deserves to be set aside."
The principles laid down by the Hon'ble Supreme Court in the above judgment applies to the facts of the present case. As held by the Hon'ble Supreme Court, it is absolutely necessary to afford an opportunity to the petitioners to rectify the procedural mistake Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 9 committed by them by allowing them to file necessary application for condonation of delay.
In Prithvi Raj (Dead) By LRs. v. Collector, Land Acquisition, H.P and another [2005 (12) SCC 198] the Hon'ble Supreme Court while dealing with a similar situation where a widow pleaded ignorance, in paragraph No.3 has held as follows:-
"3. By the impugned judgment, the High Court declined to implead the legal heirs of the original claimant in the pending proceedings. The petitioner widow submits that she was not aware of the pending proceedings, so she could not take any steps to this effect. The petitioner is permitted to implead/substitute the legal heirs of deceased Prithvi Raj in the appeal filed by the original claimant. We direct restoration of the case to the file of the High Court and we request the High Court to dispose of the same in accordance with law. We are told that the deceased Prithvi Raj has a living son. The present appellant shall take steps to implead the son also in the proceedings."
In the light of catena of judgments referred to above and the more can be referred, the sum and substance is that a party who claims to have substantial right, which requires adjudication by the Court of law, should not be denied of the said opportunity by sticking on to hyper technical objections. The petitioners should be afforded an opportunity Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 10 to file application under Section 5 of the Limitation Act seeking condonation of delay in moving such an application, but as the petition is pending since long and originally, the suit had been instituted in the year 2008 i.e approximately 5 years have elapsed, suit is not progressing and no useful purpose will be served by remanding the case with aforesaid liberty. From the application for impleading legal representatives of deceased-plaintiff no.2, it transpires that the petitioners are rustic and illiterate villagers and were not aware of the niceties of law, nor any proper legal advice was given by the learned counsel representing them in the trial court. Therefore instead of remanding the case for moving an application for condonation of delay, this Court deems it fit and appropriate that delay be condoned as from the averments in the application and the circumstances, it it clear that there are sufficient grounds to condone the delay in moving the application. The Hon'ble Apex Court in 'Bhagmal and others vs. Kunwar Lal and others 2010 (4) Civil Court Cases 120 (S.C.) has categorically held that separate application for condonation of delay is not required when all the ingredients of the application for condonation of delay are mentioned in the application. The ratio of the above said judgment can be applied to the facts of the present case and it can be inferred while dismissing the application for impleading legal representatives, the trial Court has not considered this aspect. Even otherwise, this Court considering the peculiar facts of this case deems it appropriate that delay in moving the application for impleading the legal Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.2223 of 2013 11 representatives stands condoned and there is no necessity to give opportunity to move such application before the trial Court.
In view of above, the revision petition is allowed, the impugned orders are set aside and application moved by the petitioners for being impleaded as LRs of plaintiff no.2 is allowed, the petitioners are ordered to be brought on record of the trial Court as LRs of plaintiff no.2 to pursue the suit only.
(Paramjeet Singh) Judge November 20, 2013 parveen kumar Kumar Parveen 2013.11.27 18:17 I attest to the accuracy and integrity of this document High Court, Chandigarh