Keshav Dev vs Mst. Naraini and Others

Arun Madan, J.—Heard learned counsel for the parties on the respondent''s application under Order 22 Rule 4 CPC. The sole appellant plaintiff Keshav Dev died on 22.10.98. His legal heirs have not been brought on record till date. The respondent Mst. Naraini expired on 11.11.93. This fact was within the full knowledge of the appellant but no application was filed to bring the legal heirs of Mst. Naraini or even the LRs of the appellant on record.

From the perusal of the record, I find that appeal was dismissed on 1.2.1994 for non-prosecution. The learned Single Judge passed the order dt. 1.12.94 to the following effect :-

"It appears that the appellant is no more interested in prosecuting this appeal. The appeal is, therefore, dismissed in default for non-prosecution and stands disposed of accordingly."

Thereafter, an application was filed for restoration of the appeal vide SB Civil Restoration Application No. 167/94 on which the order was passed by the Court on 27.8.97 when this Court gave three days time to file PF & Notices failing which, the restoration application would stand dismissed without any reference to this Court. Thereafter, on 15.10.97, the Registry in view of the earlier order of this Court dt. 27.8.97 dismissed the restoration application. Thereafter, the appellant again filed another application for restoration of restoration application bearing SB civil Restoration Application No. 140/99 which was allowed by the learned Single Judge of this Court vide order dt. 27.8.99 with a direction that the Restoration Application No. 167/94 shall stand restored to its original number. Again, the PF & Notices were filed belatedly by the appellant on which this Court passed the order on 20.9.2001 after recording the statement of the counsel for the appellant that he had filed the PF & Notices for restoration application on 20.9.01. He was directed to explain this fact to the Registry and on doing so the notices be issued. Notwithstanding the above order and the above statement of the learned counsel, PF & Notices were not filed with the Registry of this Court and the matter has been awaiting hearing since then. Thereafter, Shri A.K. Bhandari, learned counsel appearing for the respondent filed application under Order 22 Rule 4 CPC for seeking necessary directions from this Court regarding abatement of the appeal on behalf of respondent No. 3.

Since no such application had been filed till then, nothing prevented the appellant or his counsel for bringing this fact to the notice of this Court that the application for bringing the LRs of the deceased appellant under Order 22 Rule 4 CPC was filed but the same had infact not been listed before this Court. Perusal of the record reveals that infact there is no such evidence on record as to whether the appellant had at all filed any such application. Evidently, this appears to be a gimmick which has been deployed with a view to gain time and to complicate the situation which otherwise is clear from the perusal of the record itself. The requirement of Sub-rule (2) of Rule 4 of Order 22 CPC, stipulates, as under :--

"(2) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."

From the perusal of the record, it is revealed that no such application has been filed for substitution of legal heirs. It is stated by the learned counsel for the appellant that he filed the application for substitution of legal heirs of Smt. Narayani Devi under Order 22 Rule 4 CPC though with inordinate delay of 3 years. Though, the application for substitution of legal heirs of Narayani has been filed by the appellant under Order 22 Rule 4 CPC but the same has been filed on 7.12.2001 whereas Narayani expired on 11.11.93. There has thus been delay of about eight years as against the statutory requirement of 90 days. The learned counsel for the appellant has contended in this regard that the LRs of Mst. Narayani are already on the record hence, there was no necessity of moving such application in any event but the appellant was duty bound to have moved the proper application explaining the cause of delay for which I do not find any reasonable explanation on the record. The appeal already stood abated but even no application for setting aside the abatement has been filed alongwith the application explaining the delay in filing the application for setting aside the abatement. The stand taken by the appellant is absolutely unjustified and shows complete lack of bonafides in persuing the appeal.

Mr. Bhandari, learned counsel for the respondent has placed reliance upon the judgment of the Apex Court in the matter of (1) Amba Bai and Others Vs. Gopal and Others, and judgment of this Court in the matter of (2) The Shiva Cooperative Housing Society v. Shri Chauthmal: 2001 (3) RLR 537=2002 (1) WLC (Raj.) 530.

In Amba Bai (supra), the apex court held, as under :--

xxx xxx xxx xxx

In Shiva Cooperative Housing Society (supra), this court, held, as under:--

"14. xxx xxx xxx xxx 15. xxx xxx xxx xxx

I have perused the ratio of the aforesaid judgments and in my view, the same are fully attracted to the facts of the instant case.

I am of the considered opinion that prima-facie, it was the duty of the counsel for the appellant to have brought on record the legal representatives of sole appellant Keshav Dev who died on 22.10.98 and, Smt. Naraini respondent also expired on 11.11.1993 whose LRs have also not been brought on record.

Above all, despite per-emptory orders to file PF & Notices with correct addresses having been passed more than thrice and further several opportunities having been granted to do so, it is really shocking that the restoration application No. 167/94 has not been properly and diligently prosecuted on behalf of the applicant/appellant since 1994. As per last office note, fresh PF & notices for service on non-petitioner No. 2 & 3 were not filed till 28.9.01 and this is the same position till date. Hence, the restoration application itself deserves to be dismissed for non-prosecution, so also the first appeal itself having abated on account of death of sole appellant Keshav Dev and for death of Smt. Narayani respondent in the year 1998 & 1993, respectively whose LRs have also not been brought on record.

As a result of the above discussion, the Application No. 167/94 for restoration of SBCFA No. 153/90 is dismissed for non-prosecution and consequently SBCFA No. 153/90 is also dismissed for having abated. The stay order dt. 12.8.94 stands vacated forthwith.

The Stay Application No. 105/90 in SBCFA No. 153/90 is accordingly dismissed.