N.P. Jain And Company vs Sh. Moti Lal Gupta
2007 Latest Caselaw 934 Del

JUDGMENT

G.S. Sistani, J.

IA Nos. 8341/2004, 8342/2004 and 3035/2006

1. The plaintiff has filed the present suit for recovery of Rs. 58,00,000/- against the defendants under the provisions of Order xxxvII of the Code of Civil Procedure (summary suit). The plaintiff at the time of institution of suit was the sole proprietorship of one Sh. Prabhu Dayal Jain. The application for leave to defend was argued and while granting leave on 13.08.2004 this Court had directed the defendants to deposit the suit amount in Court. Sh. Prabhu Dayal Jain who was the sole proprietor of the plaintiff died on 19.05.2004. The present applications were filed on 09.12.2004. An application for bringing on record the legal heirs was to be filed within 90 days of the date of death i.e. within 19.5.2004 to 18.08.2004. The present applications were filed after a period of almost three and half months from 18.08.2004. The reason for delay has been explained that as the applicant was under the bona fide belief that the present suit had been filed by a company i.e. M/s. N.P. Jain & Co. and, therefore, there was no necessity at all for bringing the legal heirs on record. Since the applicant was under this belief he neither informed his advocate nor took any steps for filing the present application. It is only when the defendant approached this Court praying for staying the order dated 13.08.2004 that the applicant contacted his lawyer and was advised to file the present application. Notice was issued in this application. Reply has been filed.

2. Mr. S.L. Gupta, learned Counsel for the defendant submits that the present application is not bona fide and neither any grounds nor sufficient reasons have been spelt out for condoning the delay in filing this application.

3. Learned Counsel for the defendant further submits that there was total inaction, gross negligence and lack of bona fides on the part of the applicant for not bringing legal heirs on record. According to him the explanation offered is neither cogent nor sufficient and, thus, the application may be rejected. He also submits that in the condensation of delay for each delay has not been explained. To make his point good, learned Counsel for the defendant has relied upon a judgment of this Court as Union of India v. Kundan as well as a judgment of a Single Jude of this Court as Aarohi Builders Pvt. Ltd. and Ors. v. Rajeshwar and Ors. In both these cases it was held that lack of diligence on the part of the applicant in bringing the legal heirs on record, and further, in the absence of a cogent explanation furnished by them dis-entitled them to the benefit under Section 5 of the Limitation Act, 1963. Learned Counsel for defendant further submits that there are inter se disputes between both the brothers and the applicant Sh. Prem Chand Jain alone cannot be made a party as one such application has been filed by Sh. Ashok Kumar Jain and, in fact, not the two brothers but all the legal heirs should be made a party.

4. Mr. Sandeep Sharma, learned Counsel for the plaintiff at the very outset submits that he has no objection if the legal heirs are made party to the suit. He also relies on the judgment of the Supreme Court of India in case of Collector, Land Acquisition, Anantnag and Anr. v. Ms. Katiji and Ors. , wherein their Lordships of the Supreme Court have held that a justice oriented approach has to be adopted while dealing with an application under Section 5 of the Limitation Act and that "everyday's delay must be explained" does not mean that technical approach should be made.

5. Learned Counsel for the plaintiff has also relied upon the judgment of the Supreme Court Ram Nath Sao Alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors. and more particularly has relied upon Para 12 of the judgment, wherein the Hon'ble Supreme Court has ruled that by taking pedant and hypertechnical view of the matters pertaining to condensation of delay, the explanation furnished should not be rejected when stakes are high and / or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit.

6. Learned Counsel for the plaintiff has further relied upon Sardar Amarjit Singh Kalra v. Pramod Gupta and more particularly on Para 26 of the judgment, wherein the Hon'ble Supreme Court has lucidly held that 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. The Court further held that technical objections which tend to be stumbling blocks in the way of substantial and effective justice should be strictly discouraged, except where the mandate of law inevitably necessitates it.

7. In the facts of the present case their seems to be no reason why the legal heirs of the plaintiff would not like to to pursue the matter. There would also be no reason for the plaintiff to file the application after delay more so as the present suit is for the recovery of more than 59,00,000/- and no advantage would be offered to the legal heirs for not filing the present application.

8. For the reasons stated in the application and based on the law laid down by the Supreme Court in Collector, Land Acquisition, Anantnag (Supra), Ram Nath Sao (Supra) and Sardar Amarjit Singh Kalra (Supra), this Court must adopt liberal approach while dealing with this application as a substantive right has accrued in favor of the legal heirs of the plaintiff and the same cannot be taken away for any technical reasons. The applications are allowed subject to payment of costs of Rs. 5,000/-.

9. Applications stand disposed of.

10. Amended memo of parties be filed within one week from today.

CS (OS) No. 7078/2005.

11. It is stated that the order dated 13.8.2004 has been stayed by the Division Bench.

12. List on 09.10.2007.

Crl. M. No. 7078/2005.

13. This is an application under Section 340 of the Code of Civil Procedure filed by the defendants. Learned Counsel for the defendant seeks liberty to withdraw this application and to file the same at the stage of evidence. Learned Counsel for the plaintiff submits that he will not take the objection of delay in filing the application at that stage.

14. In view of above, application is dismissed as withdrawn.