Raghubir Singh vs Jwala Devi And Ors.
2002 Latest Caselaw 76 Del

JUDGMENT

R.C. Jain, J.

C.M.Nos. 582 & 583/2000

1. These two applications have been filed by the proposed LRs of the deceased appellant Raghubir Singh praying for restoration of the appeal/application under Order 22 Rule 3 CPC dismissed by the Court on 29-09-1999. It is stated that the appellant Raghubir Singh dies on 26-01-1999 at the young age of 38 years and during his life time he himself was pursuing the present appeal and his wife and children i.e. proposed LRs had not knowledge about the pendency of the present proceedings and they were required to take steps for their substitution in place of the deceased appellant. Counsel for he appellant informed the applicants that the matter was listed before the Court on 10-9-1999 and had been adjourned to 3-12-1999. However, the matter suddenly appeared in the list of 20-9-1999 and was dismissed in default. As the application for restoration was not moved within time, an application for condensation of delay has also been made.

2. The application is opposed on behalf of the respondents mainly on the ground that it is hopelessly barred by time and is otherwise not maintainable as the applicants have not come before this Court with clean hands and have suppressed material facts. It is also stated that on 15-7-1999 when the Court ordered issue of notice on the application of the respondent to the counsel who had filed the present appeal, the counsel appeared on 16-8-1999 and was directed by the Court to inform within a week the date of death of the appellant and the matter was adjourned to 10-9-199. On 10-9-1999 the matter was listed before Court for appropriate orders and adjourned to 20-9-1999 in the presence of the counsel. That the absence of the counsel/applicants on 20-9-1999 was without any sufficient reason or explanation and the appeal/substitution application are not liable to be restored.

3. I have heard the learned counsel for the parties and given my thoughtful considerations to their submissions. Having regard to the facts and circumstances of the present case, more particularly to the fact that the appellant died at a young age, the possibility of the applicants/legal representatives herein of not being in the know of the proceedings pending in this Court cannot be ruled out. It is true that the Counsel for the appellant became aware of the death of the appellant and he was expected to take further steps for substitution of legal heirs of the deceased appellant and in that view of the matter he was negligent. However, it is well settled that a party should not be penalised for the negligence or lapse of the counsel. This Court is, therefore, of the considered opinion that it would be expedient in the interest of justice to restore the appeal/substitution application. The applications are allowed subject to payment of Rs.2500/- as costs.

CM No. 576/2000 & 581/2000

4. The applicants, who are wife, son and daughters of the deceased appellant Ragubir Singh, seek their substitution in place of the deceased appellant. The application was not moved within the prescribed period of limitation and was rather moved much later and an application under Section 5 of the Limitation Act has been filed for condensation of delay in filing the application primarily on the ground that the appellant had died at a young age and the applicants were not aware of the present proceedings and they came to know about the same from the counsel at a later stage and immediately the application was moved. The applications are supported by affidavit of Smt. Jaswinder Kaur wife of the deceased appellant.

5. The applications are opposed mainly on the ground that the application is highly belated and no sufficient explanation has come forward on the basis of which the delay in filing the application can be condoned. It is stated that the applicants have not come to the Court with clean hands and have rather suppressed the material facts.

6. The applications have earlier considered and disposed by this Court vide order dated 11-7-2000 which reads as under:-

"CMs 576/2000, 581/583/2000 & SAO 39/98

The Appellant had died during the pendency of this appeal. The Respondent had moved an application saying that no steps have been taken for bringing the LRs of the Appellant on record and as such the appeal abates.

Counsel for the Appellant was represented in the application on 16th August, 1999 and 10th September, 1999. Inspite of the application being filed for abatement of the appeal, no steps were taken by the appellant for bringing on record the LRs of deceased Appellant.

When the matter was taken up on 20th September, 1999 nobody appeared on behalf of the Appellant. The appeal was accordingly dismissed.

Applications have now been filed for bringing the LRs on record and for restoration of the appeal as well as for condensation of delay in filing these applications.

In view of the facts stated above, I am not inclined to entertain these application. The same are dismissed."

7. Aggrieved by the said order the applicants preferred Special Leave Petition (Civil) No. 1220/2001 before the Hon'ble Supreme Court and it was allowed by an order dated 12th February, 2001 which reads as under:-

"Leave granted.

Heard learned counsel for the parties.

The only ground to which we are impressed, as submitted by the learned counsel for the appellant is that the application moved by the appellant for bringing on record the LRs to restore the appeal which has been dismissed as abated that the High Court has in fact not even entertained such an application along with condensation of delay application and thus not applied its mind.

Having heard learned counsel for the parties and perusing the impugned order we find that the High Court record:

"In view of the facts stated above, I am not inclined to entertain these applications the same are dismissed".

We feel that the High Court by doing this has committed error in not entertaining these applications.

The proper course for the High Court is to consider these applications and decide in accordance with Law.

Accordingly, we set aside the impugned order dated 11th July, 2000 and remand the case back to the High Court to consider afresh on merits. The High Court to dispose of the aforesaid application within eight weeks from the date of receipt of the certified copy of this order which should be filed and place it before the Registrar who shall place the matter before Hon'ble the Chief Justice for placing the matter before the appropriate court. With the said observations the appeal stands disposed of."

I have heard the learned counsel for the parties and have given my thoughtful consideration to their submissions. The arguments which were raised in support of and against the application for restoration of appeal/substitution application are also pressed for the purpose of these applications as well. There is no denial of the position that the applications have not been vigilant enough about their rights and have not taken timely steps for their substitution within the prescribed period of limitation but as noticed above there are certain circumstances which explain the delay in filing of the application for substitution within time. There is no dispute with regard to the date of death of the deceased appellant as also about the applicants being the only legal heirs who are entitled to pursue the appeal. The disposal of the appeal no doubt has been delayed on account of the delayed action on part of the applicants for which I am of the considered opinion that the respondent can be adequately compensated. It would meet the ends of justice if the delay is condoned and the application for substitution of LRs is allowed and the appeal is heard on merits. The applications are allowed subject to payment Rs. 2500/- as further costs and the applicants are ordered to be substituted in place of the deceased appellant Raghubir Singh. Amended memo of parties be filed within two weeks.

8. SAO 39/98 be listed on 24th January, 2002.