Jogdarshan and Others vs Leela Devi and Others

S.S. Sodhi, J.—The impugned judgment of the lower appellate court, holding that the appeal had abated, cannot indeed be sustained.

On June 2, 1976, during the pendency of the appeal, the appellant Joti Ram died. An application, by his sons Charanji Lal, Phul Singh to be impleaded as his legal representatives, was filed on September 1, 1976, though it bears the date August 29, 1976, On the date, on which this application was filed, it stood barred by time as the last date of limitation for filing it was August 31, 1976. In the reply filed to this application, a plea was consequently raised by the respondents that the appeal be abated.

It was during the pendency of their application for being impleaded as the legal representatives of the appellant Joti Ram, deceased, that his son Charanji Lal and Phul Singh, on January 19, 1978, filed another application, this time under Order 22 Rule 9 of the CPC read with Section 5 of the Limitation Act, seeking the setting aside of the abatement and the condonation of one day''s delay in the filing of their earlier application for being brought on record as legal representatives of the deceased-appellant. In dealing with this application, the lower appellate court I observed that the delay in filing the earlier application, one day beyond the limitation, seemed to have occurred due to the bona fide mistaken belief of counsel, but the delay in filing of the application for setting aside the abatement till January 19, 1978, had not been satisfactorily explained and amounted to gross negligence. The appeal was thus held to have abated and was accordingly dismissed as such.

The view taken by the lower appellate court cannot, but be held to be wholly I erroneous and untenable. In the circumstances, as occurred in the present case, the application filed by Charanji Lal and Phul Singh on September 1, 1976, for being impleaded as legal representatives of their deceased father Joti Ram appellant clearly deserved to have been treated as one for setting aside the abatement. To go merely by the label of such an application is to take too technical a view of the law which clearly goes counter to the very concept of the large interests of justice. Further, when once it is found that the delay of one day in the filing of this application was for a bona fide cause this delay clearly deserved to have been condoned.

The abatement of the appeal, is consequently hereby set aside and the appeal is remitted to the lower appellate court for fresh decision on merits, in accordance with law. This appeal is thus accepted. Costs of this appeal shall be costs in the suit.

Parties are directed to appear before the lower appellate court on June 6, 1988 and a direction is also hereby issued to the appellate court to ensure that the appeal is heard and disposed of as expeditiously as possible.