Gauhati High Court
Smt. Usha Roy vs Pinku Roy @ Jogal Roy @ Tinku Roy @ ... on 28 September, 2021
Page No.# 1/15
GAHC010013822015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/169/2015
SMT. USHA ROY
W/O- LT. NARAYAN CHANDRA ROY, R/O- SATI JAYMATI PATH, REHABARI
BILPARA, P.O.- REHABARI, GHY- 8, DIST.- KAMRUP M, ASSAM.
VERSUS
PINKU ROY @ JOGAL ROY @ TINKU ROY @ KATU ROY and 5 ORS.
S/O- LT. SUNIL KR. ROY, R/O- SATI JAYMATI PATH, REHABARI BILPARA,
P.O.- REHABARI, GHY- 8, DIST.- KAMRUP M, ASSAM. PRESENTLY
RESIDING AT- C/O- HABUL HAWALDAR, SECY. SABUZ SONGHA, VILL.-
RAM CHANDRAPUR, P.S.- DAIMOND HARBOUR, DIST.- 24 PARGONA,
WEST BENGAL, PIN- 74332.
2:MAMTA CHOUDHURY
W/O- LT. PRANAB CHOUDHURY.
3:PRANJAL CHOUDHURY
S/O- LT. PRANAB CHOUDHURY.
5:PRADIP CHOUDHURY
BROTHER OF LT. PRANAB CHOUDHURY
ALL ARE R/O- SATI JAYMATI PATH
REHABARI BILPAR
P.O.- REHABARI
P.S.- PALTANBAZAR
GHY- 8
DIST.- KAMRUP M
ASSAM.
6:NILA RAY
W/O- AAMAR MAHAJAN
R/O- NINE MILE
Page No.# 2/15
GARUBAZAR
P.S.- JORABAT
GHY- 8
DIST.- KAMRUP M
ASSAM
Advocate for the Petitioner : MR. K SAIKIA
Advocate for the Respondent : MR.P K DEKAR-2 and 5
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Date of hearing : 14.09.2021
Date of Judgment : 28.09.2021
Judgment & Order (Oral)
By this application filed under Article 227 of the Constitution of India, the supervisory
jurisdiction of this Court is sought to be invoked in challenging an order dated 07.02.2015
passed in Petition No.8299/2013 and Petition No. 8298/2013 arising in Title Suit No. 26/2007
by the learned Court of the Munsiff No. 1, Kamrup (M). By the aforesaid order, the application
filed by the present petitioner, as plaintiff under Order XXII Rule 3 and 9(2) of the Code of
Civil Procedure, 1908 (hereinafter the CPC) with another petition filed under Section 5 of the
Limitation Act, 1963 for condonation of delay have been dismissed.
2. To examine the validity and legality of the impugned order dated 07.02.2015, it would
be convenient to place on record the brief facts of the case.
3. The projected case of the petitioner is that the petitioner, as plaintiff had instituted a
Title Suit being T.S. No. 52/2003 in the Court of the learned Civil Judge (Sr. Division) No. 2,
Kamrup (later on transferred to the learned Court of the Munsiff No.1, Kamrup and
renumbered as Title Suit No. 26/2007) against present respondent No.1, late Pranab
Choudhury, the predecessor of the respondent Nos. 2 to 5 and the respondent No.6 as
Page No.# 3/15
defendants. The suit was filed for specific performance of contract. The plaintiff had alleged
that the respondent No.1, who was the owner of the plot of land measuring 10 laches
covered by dag No.1616 (old) / 1505 (new) of patta No. 1391 (old) / 269 (new) had entered
into an agreement dated 19.03.2002 with the petitioner for selling out his share over the said
land. The land had devolved upon the respondent Nos. 1 and 6 upon the death of the original
owner who was their father and at the time of entering into the agreement, the respondent
No.1 had projected that the respondent No.6 had no objection to the subject of the
agreement. However, after execution of the said agreement and after receipt of a substantial
sum from the petitioner, the respondent No. 1 violated the terms of the agreement by
proposing to sell the land to some other persons. Under such circumstances, the petitioner, as
plaintiff had instituted the suit. During the pendency, the predecessors of the respondent Nos.
2 to 5 namely, late Pranab Choudhury (since deceased) was impleaded as the defendant No.2
and accordingly, the proforma respondent No. 6 was renumbered as the proforma defendant
No.3. The Suit had proceeded ex-parte against the respondent / defendant No.1 however, the
predecessor of the respondent Nos. 2 to 5 in his written statement had stated that he had
entered into an agreement for sell of the suit land and executed by the respondent Nos. 1
and 6 in his favour in the Office of the Sub-Registrar, Guwahati on 27.08.2002 and accordingly
denied the execution of the agreement in question dated 19.03.2002. The respondent No. 6
in her written statement had stated that the original owner was her father Sunil Kumar Roy
upon whose death, the land devolved upon the respondent Nos. 1 to 6. In the last part of the
December, 2000 a family arrangement was made and the land in question came to the share
of the respondent No. 6 and therefore the respondent No. 1 was divested of any powers or
authority to sell or transfer the suit property.
4. It is stated that during the pendency of the Suit, the petitioner had previously
preferred a Civil Revision Petition being CRP No.127/2006 against an order dated 17.01.2006
in which this Court vide an order dated 21.09.2007 had passed an order of stay of further
proceedings and had called for the records. During the pendency of the said revision petition,
Pranab Choudhury (the defendant No. 2 in the Suit) had expired on 03.10.2008 leaving
behind the respondent Nos. 2 to 5 as legal heirs. It is the case of the petitioner that she had
given the said information to her advocate and was under the bona fide belief that necessary
Page No.# 4/15
application for substitution was being filed, both in the Civil Revision Petition as well as in the
title suit. The petitioner also claimed to have been signed certain documents and handing
over the same to her advocate.
5. It has further been alleged that while the petitioner was under the bona fide belief that
necessary steps for substitution have already been taken, she was served with a notice issued
by the learned Court of the Munsiff No.1, Kamrup in connection with Title Suit No. 26/2007.
Upon appearing, the petitioner came to know that this High Court had passed an order dated
03.12.2012 dismissing the CRP holding the same to have become infructuous and the records
were accordingly sent back. The petitioner further came to know that though she was under
the bona fide belief that necessary steps were taken after the death of the defendant No.2,
no such steps were taken and as a result thereof, the Suit had abated. Accordingly, the
petitioner had immediately filed an application for substitution of the respondent Nos. 2 to 5
in place of the defendant No. 2 by setting aside the abatement and the said petition was
numbered as Petition No.8299/2013. As the petition was barred by limitation with a delay of
1769 days, a separate application was filed under Section 5 of the Limitation Act for
condonation of the delay and the said petition was numbered as Petition No.8298/2013. Both
the applications were resisted by filing written objection.
6. It was the case of the petitioner that she being a widow and was not acquainted with
the provisions of law and was accordingly wholly unaware regarding the steps taken for
substitution of the legal heirs. However, without considering her case, the impugned order
has been passed rejecting the prayer and it is the legality and validity of the order dated
07.02.2015 which is the subject matter of scrutiny.
7. I have heard Shri R.K. Bhuyan, learned counsel for the petitioner whereas the
contesting respondents are represented by Shri R. Sharma, learned counsel. The materials
before this Court have been carefully examined.
8. Shri Bhuyan, the learned counsel for the petitioner submits that the law relating to
abatement and for condonation of delay are procedural in nature in which a liberal approach
is required. However, the learned Court, while passing the impugned order lost sight of the
basic principles. It has further been urged that technicalities should not be allowed to prevail
Page No.# 5/15
over substantial justice. The learned counsel for the petitioner further submits that there was
no default at all on the part of the petitioner in taking timely steps and it was only because
some lapse on the part of her counsel that the situation had arisen to file petition for setting
aside abatement as well as application for condonation of delay. The learned counsel
accordingly submits that the impugned order dated 07.02.2015 be set aside.
9. In support of his submission, Shri Bhuyan, the learned counsel for the petitioner had
relied upon a case of Banwari Lal & Ors. Vs. Balbir Singh, reported in (2016) 1 SCC
607. It is submitted that the Hon'ble Supreme Court in the said case had held that the
provisions of Order XXII of the CPC are not penal in nature. It is the 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. The Hon'ble Supreme Court had also taken into
consideration that an earlier judgment of the Constitutional Bench in the case of Sardar
Amarjit Singh Kalra Vs. Pramod Gupta, reported in (2003) 3 SCC 272 wherein it has
been stated that law of procedure are meant to regulate effectively, assist and aid the object
of doing substantial and real justice and not to foreclose an adjudication on merits of
substantial rights of the citizen. It has further been held that procedural law has always been
the handmaid of justice and not meant to hamper its cause.
10. Per contra, Shri R. Sharma, learned counsel for the contesting respondents submits
that no case, whatsoever, has been able to be made out by the petitioner in this revision
petition. The learned counsel has urged that the conduct of the petitioner is wholly
inconsistent and putting the blame on the counsel to obtain a benefit is wholly unjustified in
the present case. While the petitioner admits that she was under the bona fide impression
that due steps for substitution were taken in the earlier round of litigation before this Court
which was numbered as CRP No. 127/2006, there is no explanation, whatsoever with regard
to the ignorance of the final orders passed by this Court in the said CRP No. 127/2006 on
03.12.2012. No details have been given as to when the notice from the learned Court of the
Munsiff No.1 was issued or received and since the application for setting aside abatement as
well as condonation of delay were apparently filed in the year 2013, no explanation has been
given regarding the period from the date of receipt of the notice till the date of filing the
petitions. It is further submitted that by the inaction of the party to take due steps in time for
Page No.# 6/15
substitution, a right has accrued upon the respondents and that vested right cannot be taken
away lightly. It is finally submitted that the impugned order dated 07.02.2015 does not call
for any interference by this Court as the same is an order passed by a competent Court
having jurisdiction and by taking into consideration all the relevant factors.
11. A further contention is raised by Shri Sharma, the learned counsel on the
maintainability of the present petition. He submits that the impugned order dated 07.02.2015
has been passed mainly on an application under Order XXII Rule 9 and by drawing the
attention of this Court to Order XLIII Rule 1(k) of the CPC, it is contended that such orders
are appealable in nature and therefore a revision will not lie.
12. The rival contentions of the learned counsel for the parties have been duly considered
and the materials before this Court have been carefully examined.
13. While the petitioner has contended that while applying the provisions of Order XXII of
the CPC and also Section 5 of the Limitation Act, a liberal approach should be adopted and
technicalities should not be allowed to defeat substantial justice, the respondents have
submitted that the rights which have accrued upon them due to the inaction of the petitioner
to take due steps on time, should not be taken away more so, when the conduct of the
petitioner is doubtful and the delay is an inordinate one.
14. Before going to the impugned order dated 07.02.2015, this Court would like to rely
upon the law laid down by the Hon'ble Supreme Court on the subject. The case of Banwari
Lal (Supra) has already been relied upon by the petitioner. For better appreciation, the
relevant paragraphs of the said case are extracted hereinbelow-
"10. Provisions of Order XXII 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, (2003) 3 SCC 272, a Five Judge Bench of this Court 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
Page No.# 7/15
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 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 XXII CPC are designed to
advance justice and should be so interpreted as not to make them penal statutes for
Page No.# 8/15
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."
15. In the case of State Of Nagaland Vs. Lipok Ao & Ors. , reported in (2005) 3 SCC
752 the Hon'ble Supreme Court has held that technicalities should not override substantial
justice, the relevant paragraphs are extracted hereinbelow-
"7. The trial court noted that the ballistic report established that the bullets were fired
from the guns of the accused-respondents. A finding was also recorded that the
respondents exceeded their power of opening fire, and this constituted misfeasance,
but absence of the post-mortem report was held to have vitally affected the
prosecution case. It was also held that the accused persons had fired with AK-47 and
M-22 rifles in self-defence. Therefore, benefit of doubt was given to them. A pragmatic
approach has to be adopted and when substantial justice and technical approach are
pitted against each other the former has to be preferred.
............
............
15. It is axiomatic that decisions are taken by officers/agencies at a slow pace and
encumbered process of pushing the files from table to table and keeping it on the
table for considerable time causing delay -- intentional or otherwise -- is a routine.
Considerable delay of procedural red tape in the process of their making decision is a
common feature. Therefore, certain amount of latitude is not impermissible. If the
appeals brought by the State are lost for such default no person is individually affected
but what in the ultimate analysis suffers, is public interest. The expression "sufficient
cause" should, therefore, be considered with pragmatism in a justice-oriented
approach rather than the technical detection of sufficient cause for explaining every
day's delay. The factors which are peculiar to and characteristic of the functioning of
the governmental conditions would be cognizant to and requires adoption of pragmatic
Page No.# 9/15
approach in justice-oriented process. The court should decide the matters on merits
unless the case is hopelessly without merit. No separate standards to determine the
cause laid by the State vis-à-vis private litigant could be laid to prove strict standards
of sufficient cause. The Government at appropriate level should constitute legal cells to
examine the cases whether any legal principles are involved for decision by the courts
or whether cases require adjustment and should authorise the officers to take a
decision or give appropriate permission for settlement. In the event of decision to file
appeal, needed prompt action should be pursued by the officer responsible to file the
appeal and he should be made personally responsible for lapses, if any. Equally, the
State cannot be put on the same footing as an individual. The individual would always
be quick in taking the decision whether he would pursue the remedy by way of an
appeal or application since he is a person legally injured while the State is an
impersonal machinery working through its officers or servants."
16. In the case of State Of Haryana Vs. Chandra Mani & Ors. , reported in (1996) 3
SCC 132, it has been laid down that in matters of condonation of delay, a pragmatic and
justice-oriented approach is required. The relevant paragraph is extracted hereinbelow-
"11. It is notorious and common knowledge that delay in more than 60 per
cent of the cases filed in this Court -- be it by private party or the State --
are barred by limitation and this Court generally adopts liberal approach in
condonation of delay finding somewhat sufficient cause to decide the appeal
on merits. It is equally common knowledge that litigants including the State
are accorded the same treatment and the law is administered in an even-
handed manner. When the State is an applicant, praying for condonation of
delay, it is common knowledge that on account of impersonal machinery
and the inherited bureaucratic methodology imbued with the note-making,
file-pushing, and passing-on-the-buck ethos, delay on the part of the State
is less difficult to understand though more difficult to approve, but the
State represents collective cause of the community. It is axiomatic that
decisions are taken by officers/agencies proverbially at slow pace and
encumbered process of pushing the files from table to table and keeping it
Page No.# 10/15
on table for considerable time causing delay -- intentional or otherwise -- is
a routine. Considerable delay of procedural red-tape in the process of their
making decision is a common feature. Therefore, certain amount of latitude
is not impermissible. If the appeals brought by the State are lost for such
default no person is individually affected but what in the ultimate analysis
suffers, is public interest. The expression "sufficient cause" should,
therefore, be considered with pragmatism in justice-oriented approach
rather than the technical detection of sufficient cause for explaining every
day's delay. The factors which are peculiar to and characteristic of the
functioning of the governmental conditions would be cognizant to and
requires adoption of pragmatic approach in justice-oriented process. The
court should decide the matters on merits unless the case is hopelessly
without merit. No separate standards to determine the cause laid by the
State vis-à-vis private litigant could be laid to prove strict standards of
sufficient cause. The Government at appropriate level should constitute
legal cells to examine the cases whether any legal principles are involved
for decision by the courts or whether cases require adjustment and should
authorise the officers to take a decision or give appropriate permission for
settlement. In the event of decision to file appeal needed prompt action
should be pursued by the officer responsible to file the appeal and he
should be made personally responsible for lapses, if any. Equally, the State
cannot be put on the same footing as an individual. The individual would
always be quick in taking the decision whether he would pursue the remedy
by way of an appeal or application since he is a person legally injured while
State is an impersonal machinery working through its officers or servants.
Considered from this perspective, it must be held that the delay of 109
days in this case has been explained and that it is a fit case for condonation
of the delay."
17. In the case of Bhagwan Swarup Vs. Mool Chand & Ors., reported in (1983) 2
Page No.# 11/15
SCC 132, it has been laid down that when a suit abates, a very valuable right accrues to the
other party and such right should not be interfered with lightly. Paragraph 15 of the said
judgment reads as follows-
"15. The provision fixing a particular time for making an application for bringing legal
representatives on record with the consequence of the suit or appeal abating if no
application is made within time, have been enacted for expeditious disposal of cases in
the interest of proper administration of justice. It is further to be borne in mind that
when it suit or an appeal abates, a very valuable right accrues to the other party and
such a right is not to be ignored or interfered with lightly in the name of doing
substantial justice to the party, as depriving a party of a lawful right created in the
interest of administration of justice in the absence of good grounds results in injustice
to the party concerned. For doing justice to the parties, the Courts have consistently
held that whenever sufficient cause is shown by a party at default in making an
application for substitution, abatement will have to be set aside as the good cause
shown for explaining the delay in making the application is sufficient justification, to
deprive the other party of the right that may accrue to the other party as a result of
the abatement of the suit or appeal. The Courts have also consistently ruled that
laches or negligence furnish no proper grounds for setting aside the abatement. In
such cases, a party guilty of negligence or laches must bear the consequences of his
laches and negligence and must suffer. In appropriate cases, taking into consideration
all the facts and circumstances of a case, the Court may set aside the abatement,
even if there be slight negligence or minor laches in not making an application within
the time provided an overall picture of the entire case, requires such course for
furthering the cause of justice. When negligence and laches are established on the
part of the party who seeks to set aside the abatement, the application of such a party
should be entertained only in the rarest of cases for furthering the ends of justice only
and on proper terms."
18. On a reading of the case laws governing the field, the following principles (not
exhaustive) can be taken as guidelines for deciding a petition for setting aside abatement as
well as for condonation of delay -
Page No.# 12/15
i. The power vested upon a Court to exercise such jurisdiction is essentially a
discretionary one. The natural corollary is that there has to be an application of a
judicious mind by taking into consideration all the relevant factors.
ii. The relevant factors which are required to be taken into consideration would include
the conduct of the party as discretion can be exercised only by balancing the equities.
iii. The length / duration of delay and the explanation put forward are both relevant
considerations for exercise of such discretion.
iv. The Court would generally proceed with a liberal, pragmatic and justice-oriented
approach with such petition as substantial justice should not be allowed to be defeated
by mere technicalities.
v. At the same time, the Court would also not lose sight of the fact that a valuable
right has accrued on the other party and such right should not be interfered with
lightly. Therefore, though there may not be a requirement to seek a day-to-day
explanation, the explanation for the delay should be a reasonable one which is
acceptable to a man of ordinary prudence.
19. Under the aforesaid backdrop, let us now examine the impugned order dated
07.02.2015. However, a note of caution needs to be taken into consideration at this stage in
view of the fact that it is the supervisory powers of this Court under Article 227 of the
Constitution of India which has been sought to be invoked in this petition. It is a settled law
that such powers are to be exercised in a circumscribed manner and only on extra ordinary
circumstances as normally the Code itself provides for a revision under Section 115. Such
powers are to be exercised under certain circumstances only, few instances of which can be
culled down as follows:
i. When the order passed is without jurisdiction
ii. When there is refusal to pass an order by the Court which was vested with such
jurisdiction
iii. When the order appears to be fraught with material irregularity illegality.
Page No.# 13/15
iv. When the order has been passed by ignoring / overlooking the relevant factors into
consideration and
v. When the order has been passed by taking into consideration irrelevant and
extraneous factors.
vi. Interference may not be called for when the view taken is a plausible view and only
because an alternative view is possible to be taken on the basis of the materials.
vii. When the Code itself provides for a remedy, recourse to Article 227 is a near total
bar.
20. At this stage, it would be valuable to refer to the decision of the Hon'ble supreme
Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors.
Vs. Tuticorin Educational Society & Ors., reported in (2019) 9 SCC 538 wherein it has
been laid down that availability of the remedies under the CPC is a near total bar for invoking
the jurisdiction under Article 227 of the Constitution of India. For ready reference the relevant
paragraphs are extracted hereinbelow-
"11. Secondly, the High Court ought to have seen that when a remedy of appeal under
section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure,
1908, was directly available, the respondents 1 and 2 ought to have taken recourse to
the same. It is true that the availability of a remedy of appeal may not always be a bar
for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah
Naidu vs. S. Chellappan & Ors, (2000) 7 SCC 695, this Court held that "though no
hurdle can be put against the exercise of the Constitutional powers of the High Court,
it is a well recognized principle which gained judicial recognition that the High Court
should direct the party to avail himself of such remedies before he resorts to a
Constitutional remedy".
12. But courts should always bear in mind a distinction between (i) cases where such
alternative remedy is available before Civil Courts in terms of the provisions of Code of
Civil procedure and (ii) cases where such alternative remedy is available under special
enactments and/or statutory rules and the fora provided therein happen to be quasi-
Page No.# 14/15
judicial authorities and tribunals. In respect of cases falling under the first category,
which may involve suits and other proceedings before civil courts, the availability of an
appellate remedy in terms of the provisions of CPC, may have to be construed as a
near total bar. Otherwise, there is a danger that someone may challenge in a revision
under Article 227, even a decree passed in a suit, on the same grounds on which the
respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3
member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram
Chander Rai, (2003) 6 SCC 675, pointed out in Radhey Shyam vs. Chhabi Nath, (2015)
5 SCC 423 that "orders of civil court stand on different footing from the orders of
authorities or Tribunals or courts other than judicial/civil courts.
13. Therefore wherever the proceedings are under the code of Civil Procedure and the
forum is the Civil Court, the availability of a remedy under the CPC, will deter the High
Court, not merely as a measure of self imposed restriction, but as a matter of
discipline and prudence, from exercising its power of superintendence under the
Constitution. Hence, the High Court ought not to have entertained the revision under
Article 227 especially in a case where a specific remedy of appeal is provided under
the Code of Civil Procedure itself."
21. A reading of the impugned order dated 07.02.2015 would reveal that the learned Court
proceeded as per the guidelines of adopting a liberal approach by referring to judgment of
the Hon'ble Supreme Court as well as this Court. Thereafter, the learned Court has noticed
that the statements of the petitioner were contradictory. The Court has also taken note of the
fact that in an appeal between the parties namely RFA No. 49/2010 in the High Court, the
legal heirs of the defendant No.2 were already substituted and therefore it would be wholly
unreasonable to accept the reasons for not taking steps on time to substitute. The inordinate
delay of 1769 days which have been taken note of cannot be said to be an irrelevant
consideration. The learned Court has also noted that in CRP No. 127/2006 no steps were
taken which led to dismissal for non-prosecution and there was failure to take steps for
substitution. The Court also took note of the fact regarding the statement made about the
death of the defendant No.2 from the report of the Nazir is self contradictory inasmuch as it
Page No.# 15/15
is the case of the petitioner that she had taken steps in instructing her counsel to apply for
substitution in the High Court.
22. The conclusion arrived at by the learned Court does not, in any manner, appear to be
unreasonable or arbitrary and rather the same appears have been passed by taking into
consideration all the relevant factors. This Court is of the view that the discretion exercised by
the learned Court below does not appear to be either in excess or unreasonable. This Court is
also of the opinion that in view of the provisions of the Code providing for an appeal against
such orders and the interpretation given by the Hon'ble Supreme Court in the case of
Virudnagar (supra), the present petition filed under Article 227 of the Constitution of India is
not maintainable.
23. Accordingly, the instant petition is dismissed. Consequently, the interim order passed
on 29.05.2015 which was continuing stands vacated.
24. No order, as to cost.
JUDGE
Comparing Assistant
