Amar Kaur and others vs Mehar Singh and others

V.K. Bali, J. (Oral)

The predecessorininterest of the present appellants filed a suit for possession by way of specific performance of an agreement, dated 16th May, 1979. He lost his cause before the trial Court and being aggrieved of the same, carried an appeal before the District Judge. During the pendency of the appeal, he died on 2nd February, 1990. His legal representatives who are the present appellants, filed an application for bringing them on record on 16th May, 1989. When the matter came up for arguments, it was contended on behalf of the respondents that since the application was filed after the expiry of 90 days of the death of the appellant, they shall have to file an application so as to plead sufficient cause, for condoning the delay. That application was filed on 31st January, 1991 and by that time, more than 114 days had gone by from the date of the death of the predecessorininterest. They also prayed for the setting aside of the abatement. Both these applications were dismissed by the impugned order, dated 10th April, 1991, and against this order, the present appeal has been filed.

Mr. Gian Singh, learned counsel for respondent No. 6 raised a preliminary objection to the maintainability of the appeal. The precise argument of the learned counsel is that after the decree in the suit and the dismissal of he appeal having abated, only Regular Second Appeal was competent and not the second appeal against the order. The learned counsel further contends that this method, i.e., filing of second appeal against order, has been adopted with a view to save the courtfee and the courtfee payable was quite substantial. This being a suit for specific performance, ad valorem courtfee was payable. There appears to be sufficient merit in the argument of the learned counsel, but considering the same in view of the facts and circumstances of the case, the same will have no effect on the merits of the case. It is correct that after the decree in the suit and dismissal of the appeal as having abated decree followed the judgment and it was regular second appeal which was competent. However, in the interest of justice, this court can treat the second appeal an order to be a regular appeal if the circumstances of the case, equity, good conscience and justice so demand.

After hearing the learned counsel for the parties, I am convinced that the impugned order cannot be sustained, and, therefore, it is fair and equitable to give the parties a chance to contest their case on merits. This appeal is accordingly treated as Regular Second Appeal. So far as the Courtfee is concerned, the learned counsel can be directed to affix the requisite of courtfee but since the matter is being remanded to the District Judge and it is only on a technical objection that the appeal preferred by Chain Singh was dismissed by the said Court, it will serve no useful purpose to direct appellants to pay the courtfee as in the circumstances referred to above, the courtfree is refundable.

Coming now to the merits of the case, the first application was filed on 16th May, 1990. It was certainly beyond the period of 90 days, stipulated for making the application for bringing on record the legal representatives. However, when objection was raised to the maintainability of the application, as referred to above, being beyond 90 days, application was filed on 31st of January, 1991 pleading sufficient cause and praying for setting aside of abatement. The appellate Court dismissed the application by observing that the appellant had taken selfcontradictory stand with regard to consulting the counsel before 21st May, 1990 as it was clear from second application whereas the earlier application was filed by them on 16th May, 1990. There is certainly a difference of a few days, but that was not a major contradiction, disentitling the appellants to pray for setting aside the abatement and hearing their cause on merits. What is basically pleaded in the application is illiteracy of the appellants and their lack of knowledge on the legal issue as to when and in what circumstances, a simple application for bringing on record the legal representatives, is to be filed or when the application pleading sufficing cause is to be filed. The Supreme Court in Ram Sumiran and others v. D.D.C. and others, 1985 RRR 433 (SC) : 1985 PLJ 164, had condoned the delay of 6 years considering the rural background of the parties, their poverty and ignorance. A Single Judge of this Court in Subhash Chander Kumar v. Prabhu Dayal and others, 1994(1) RRR 732 (P&H) : (1994) PLR 485, has held that the provisions with regard to abatement should be liberally considered and normally the parties should be given a chance to get decision on merits.

For the reasons recorded above, this appeal is allowed. The impugned judgment and decree passed by the District Judge is set aside. The application filed by the appellants seeking setting aside of the abatement is allowed and the case is remanded to the District Judge for disposing of the case on merits. The parties through their counsel are directed to appear before the District Judge on 6th July, 1994. Since the matter has already been delayed beyond proportions, the District Judge would ensure early disposal of the case, preferably within six months.