Hansraj Prushottam Dass And Ors. vs Suman Jain
1991 Latest Caselaw 180 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is directed against the order dated 25th May, 1989 passed by Shri Ghansham Dass Gupta, Sub Judge 1st Class. Delhi whereby the applications of the defendants-petitioners under Order 9 Rule 9 of the Code of Civil Procedure, 1908 and also under Order 22 Rule 4 of the Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act have been dismissed.

(2) The facts giving rise to this revision petition are that a suit under Order 37 of the Code of Civil Procedure, 1908 was filed by the plaintiff-respondent against petitioner No. I through its sole proprietor, late Shri Hans RaJ. At this stage it may be noted that the petitioners are the legal heirs of Shri Hans .Raj, deceased. An application for leave to defend filed by Shri Hans Raj before the trial Court was dismissed in default on 6.1.1988 and consequently a decree was passed against Shri Hans Raj, the defendant. The defendant, Hans Raj, during his life time filed an application under Order 37 Rule 4 of the Code of Civil Procedure, 1908 on 13.1.1988 for restoration of the application and consequently for setting aside the decree, which was dismissed in default on 6.1.1988. (sic) However, during the pendency of this application, Shri Hans Raj died and on 20th May, 1988 counsel for the deceased Shri Hans Raj informed the trial Court about his death and the case was adjourned to 3rd June, 1988, on which date none appeared on behalf of the deceased and the court dismissed the restoration application for default. According to the petitioners, they were not aware of the proceedings of the suit and of the decree having been passed against their father, Shri Hans Raj, and they came to know only on 16th November, 1988 when the Court bailiff came for attaching the properties of the petitioners. On inspection of the file on 28th November 1988, they came to know about the proceedings and in fact counsel for the deceased did not inform them about these proceedings and the moment they came to know about these proceedings of the suit and the application. moved by their father under Order 37 Rule 4 of the Code of Civil Procedure, 1908, two separate applications were filed by them-one under Order 9 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act for restoration of the application filed by their father which was dismissed in default and another under.Order 22 Rules 4 & 9 read with Section 151 of the Code of Civil Procedure, 1908 for bringing them on record as the legal heirs of Shri Hans Raj, deceased-defendant. These applications were dismissed by the impugned order and hence this revision petition.

(3) The learned trial Court has dismissed the applications on the ground that a decree has been passed on 6.1.1988, during the life time of the defendant-Hans Raj, and the application filed under Order 37 Rule 4 of setting aside the decree which was later dismissed in default was also filed during his life . time and it was for the petitioners to have come forward with the application for bringing themselves as legal representatives of the deceased Hans Raj within limitation and further that the reasons given in the application are not satisfactory.

(4) After hearing counsel for the parties and considering the matter I am of the opinion that the approach of the trial Court has been wholly erroneous and by having rejected the application, he has exercised jurisdiction not only illegally but with material irregularity and with the result the order deserves to be set aside. The reasons given by the petitioners for not having filed the application for impleading themselves as legal representatives of the deceased and for restoration of the application filed on behalf of the deceased under Order 37 Rule 4 of the Code of Civil Procedure, 1908, within limitation is that they were not aware of such proceedings and they came to know of the proceedings only when the bailiff came for attaching the properties of the petitioners on 16.11.1988. Furthermore, they were not informed by counsel of late Shri Hans Raj about the applications made by the deceased, Shri Hans Raj, their father that the suit under Order 37 had been decreed against them and there was an application filed by the deceased Hans Raj under Order 37 Rule 4 of the Code of Civil Procedure, 1908 for setting aside the decree passed against him which was dismissed in default. It was the duty of the counsel to have informed the legal representatives of the deceased about such proceedings. In the absence of having knowledge about the pendency of the proceedings, I fail to understand how the petitioner could approach the court within time and continue the said proceedings. Futhermore, the learned trial court has again failed to appreciate and has exercised jurisdiction with material irregularity by dismissing the application on the ground that the application has been filed after the expiry of the period of limitation and the reasons given in the application are not satisfactory. An affidavit has been filed by the petitioner giving details for not having approached the trial Court earlier within the period of limitation in the application for condensation of delay. It was the duty of the trial Court to have given reasons and basis on which he has not accepted the version of the petitioner. Merely saying that the reasons given in the application are not satisfactory is not enough, the trial court should have given sufficient indication about the process of reasoning on account of which he has come to the conclusion that the grounds taken for condensation of delay are not satisfactory, more particularly when the valuable rights of the parties are involved in the absence of which the impugned order cannot be sustained under the law.

(5) In Rafiq and another v. Munshilal and another it has" been observed by the Supreme Court that party should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. Further the law has been well settled in the matter of condensation of delay and it would be appropriate to refer to Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others, . In that case the Supreme Court has held that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties and further when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in. injustice being done because of non-deliberate delay.

(6) In the light of law laid down by the Supreme Court, in my opinion, the approach of the trial Court has not been justice oriented and the impugned order is devoid of reasoning, without any indication of the basis of conclusions arrived at by the trial court.

(7) In the result, the revision petition succeeds, the order of the trial court is set aside and the matter is sent back to the trial court for re-consideration in accordance with law.