Rajasthan High Court
Babu Lal Mathur And Others vs Jagdamba Prasad on 17 May, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 159/2011
Babu Lal Mathur And Others
----Appellants
Versus
Jagdamba Prasad & Anr.
----Respondents
For Appellant(s) : Mr. R.K. Mathur, Sr. Advocate assisted
by Mr. Ram Prasad
For Respondent(s) : Mr. Arun Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
17/05/2022
1. This second appeal has been filed by appellants-defendants
against the judgment and decree dated 10.12.2010 and
19.04.2005 whereby and whereunder the civil suit for permanent
injunction filed by the respondent No.1-Plaintiff was decreed.
2. This court called for record of both courts below and issued
notices to respondents vide order dated 10.04.2017. Thereafter,
fresh notices were issued vide order dated 27.07.2017. Thereafter,
appellants have filed an application under Order 22 Rule 4 CPC on
23.04.2019 with an information that it transpired to the appellants
that respondent No.1-Plaintiff Jagdamba Prasad has passed away
on 13.01.2013 during pendency of this appeal and is survived by
legal representatives, named in the application against whom right
to sue and pursue the appeal survives.
(2 of 5) [CSA-159/2011]
3. Since there is a delay in filing the application, separate
application under Section5 of the Limitation Act and another
application under Order 22 Rule 9 CPC, seeking to set aside the
abatement of appeal have also been filed.
4. This Court issued notices vide order dated 17.05.2019 on all
three applications to the legal representatives of deceased
respondent No.1-plaintiff.
5. Notices have been served and advocate for the legal
representatives has put in appearance.
6. Heard learned counsel for both parties and perused the
record.
7. It has been stated in the application that the factum of death
of respondent No.1-Plaintiff was not brought on record nor came
to the knowledge of the appellants. It has been stated that the
knowledge came to only after receiving the report of the process
server on the notices issued to respondent No.1-Plaintiff.
Thereafter, the applications have been filed well within time from
the date of having knowledge of death of respondent No.1-
plaintiff, hence it has been prayed that the delay may be
condoned, abatement of appeal be set aside and the legal
representatives of deceased respondent No.1-plaintiff may be
allowed to be substituted so as to hear and decide this second
appeal on merits.
8. The counsel appearing for the legal representatives of
respondent No.1 has opposed all three applications that no
sufficient cause has been assigned for condonation of delay and
the appeal itself has become abated by operation of law.
9. No reply to all three applications have been filed.
(3 of 5) [CSA-159/2011]
10. Hon'ble the Supreme Court in case of Milthailal Dalsangar
Singh and Ors. Vs. Annabai Devram Kini and Ors. [2003(10)
SCC 691] has observed as under:-
9. "The courts have to adopt a justice-oriented
approach dictated by the uppermost consideration
that ordinarily a litigant ought not be denied an
opportunity of having a lis determined on merits
unless he has, by gross negligence, deliberate inaction
or something akin to miscondut, disentitled himself
from seeking the indulgence of the court. The opinion
of the trial Judge allowing a prayer for setting aside
abatement and his finding on the question of
availability of "sufficient cause" within the meaning of
sub-rule (2) of Rule 9 of Order 22 and of Section 5 of
the Limitation Act, 1963 deserves to be given weight,
and once arrived at would not normally be interfered
with by superior jurisdiction."
11. The Hon'ble Supreme Court in the case of Ram Nath Sao
Vs. Gobardhan Sao [(2002) 3 SCC 195] has observed that
expression "sufficient cause" within the meaning of Section 5 of
the Limitation Act, 1963 or Order 22 Rule 9 CPC or any other
similar provision should receive a liberal construction so as to
advance substantial justice when no negligence or inaction or
want of bona fides is imputable to a party.
12. In another case of Balwant Singh Vs. Jagdish Singh
[(2010) 8 SCC 685] it has been observed by the Hon'ble
Supreme Court that a liberal construction of the expression
"sufficient cause" is intended to advance substantial justice which
(4 of 5) [CSA-159/2011]
itself presupposes no negligence or inaction on the part of
applicant, to whom want of bona fide is imputable. The expression
"sufficient cause" implies the presence of legal and adequate
reasons. The word "sufficient" means adequate enough, as much
as may be necessary to answer the purpose intended. Even if the
term "sufficient cause" has to receive liberal construction, it must
squarely fall within the concept of reasonable time and proper
conduct of the party concerned.
13. Having heard learned counsel for both parties, this Court
finds that though there is a delay in filing the application for
seeking substitution, however no mala fides are attributed against
the appellants. The term "sufficient cause" deserves to be
construed liberally and the court should make endeavour to decide
the matters on merits instead of dismissing the matters on
technical grounds like abatement.
14. Considering the nature of dispute involved in the present
appeal and following the dictum of the Hon'ble Supreme Court,
this Court deems it just and proper to condone the delay and set
aside the abatement in the interest of justice.
15. Legal representatives of deceased respondent No.1-
Jagdamba Prasad are allowed to be substituted in place of
respondent No.1 are taken on record in order to hear the second
appeal and decide the same on merits. To compensate the delay,
cost of Rs.5,000/- be paid by the appellants to the legal
representatives of respondent No.1 through counsel within a
period of one week. The receipt of payment of cost be placed on
record.
16. Amended cause title be filed within a period of two weeks.
(5 of 5) [CSA-159/2011]
17. Accordingly, all three applications filed under Order 22 Rule 4
CPC, Order 22 Rule 9 CPC and Section 5 of the Limitation Act
stand disposed of.
18. With consent of learned counsel for both parties, list this
appeal for arguments on merits on 14.07.2022.
(SUDESH BANSAL),J
TN/23
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