Mehar Singh and Others vs Jaswant Singh and Others

Rajiv Sharma, J.

CMP No. 12127/2013

This application has been filed for recalling of orders dated 17.8.2012 and 24.5.2013. ''Key facts'' necessary for the adjudication of this application are that the appellants/applicants have filed regular second appeal before this Court against the judgment and decree passed by learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 47-P/98. Notice was issued to the respondents on 21.6.2001. The appeal was admitted on 24.8.2001. As per order dated 19.8.2011, respondents No. 3 to 5 and 7 were reported to be dead and appropriate steps were ordered to be taken within a period of two weeks to bring on record legal representatives of respondents No. 3 to 5 and 7. As per order dated 13.9.2011, steps for bringing on record the legal representatives of respondents No. 3 to 5 and 7 were not taken. According to order dated 11.11.2011, respondent No. 7, Veena Devi, was stated to have died. The proposed legal representatives of respondents No. 3 to 5 and 7 were permitted to be brought on record by CMP(M) No. 1543/2011 on 9.1.2012. However, as per order dated 4.7.2012, no steps were taken for the service of respondents No. 3(a), 4(a), 4(d), 5(a), 5(b) and 7(a) and the applicants were directed to take fresh steps for service of these respondents within a period of four weeks, failing which the appeal was ordered to be dismissed without reference to the Court. On 6.8.2012, the matter was adjourned to 17.8.2012. The applicants were granted two weeks further time to comply with order dated 4.7.2012 on 17.8.2012. However, despite order dated 17.8.2012, no steps were taken by the applicants and the appeal was dismissed for non-prosecution vide order dated 24.5.2013. Hence, this application.

The Court has gone through Part-b of the case file. It is apparent from order dated 2.1.2012 passed by learned Additional Registrar (Judicial) that the notices issued to respondents No. 3(a), 4(a) to 4(c) and 7(a) had been received back un-served with the report that these respondents had refused to take the notice. They were deemed to have been served. However, despite this the learned Additional Registrar (Judicial) vide order dated 21.3.2012 referred to respondent No. 7(c), though there is no respondent No. 7(c) as per the record. The Registry repeatedly ordered that the applicants had not taken the steps for the service of respondent No. 7(c). It also appears that the process fee for the service of respondents No. 3(a), 4(a) to 4(d), 5(a), 5(b) and 7(a) was filed by the applicants, but without copies of the appeal. Thereafter, notices were issued to the aforesaid respondents. Thereafter, reminder was ordered to be issued by the learned Additional Registrar (Judicial) on 26.11.2012. As per order dated 12.12.2012 passed by the learned Additional Registrar (Judicial), notice issued to respondent No. 7(a) was received back un-served with the report that the said respondent had expired. Learned Additional Registrar (Judicial) granted three weeks'' time to take steps for bringing on record the legal representatives of deceased respondent No. 7(a). As per order dated 9.1.2013, amended memo of parties was filed, but steps for bringing on record the legal representatives of respondent No. 7(a) were not taken. The same were ordered to be taken within a period of three weeks. Three weeks'' further time was granted by the learned Additional Registrar (Judicial) for bringing on record the legal representatives of respondent No. 7(a) vide order dated 23.3.2013. On 18.4.2013, two weeks'' further time was granted by the learned Additional Registrar (Judicial) to the applicants for bringing on record the legal representatives of respondent No. 7(a).

What emerges from the various orders passed by the Registry is that respondent No. 7(a) refused to accept the notice. He was deemed to have been served. However, fact of the matter is that as per order dated 12.12.2012, respondent No. 7(a) had died. The applicants were required to take steps for bringing on record the legal representatives of respondent No. 7(a), but they failed to do so, though ample opportunities were granted to them, as noticed hereinabove, by the learned Additional Registrar (Judicial) and Deputy Registrar (Judicial). It has not been brought to the notice of the Court that respondent No. 7(a) had died. As per report of the Registry dated 29.12.2011 read with order dated 2.1.2012 passed by learned Additional Registrar (Judicial), respondent No. 7(a) was deemed to have been served. Since this fact was not brought to the notice of the Court, on 4.7.2012 a further time of four weeks was again granted to the applicants for the service of un-served respondents, though the fact of the matter is that respondent No. 7(a) had died as per order of the Registry dated 12.12.2012. Since the applicants had not taken steps for bringing on record the legal representatives of respondent No. 7(a), the appeal was dismissed for non-prosecution.

The present application has been filed for recalling the orders dated 17.8.2012 and 24.5.2013 with a further prayer that the name of respondent No. 7(a) be deleted. The fact of the matter is that though the applicants were required to take steps for bringing on record the legal representatives of respondent No. 7(a), the present application is sketchy and vague. There is no averment in this application with regard to various orders passed by the Registry calling upon the applicants to bring on record the legal representatives of respondent No. 7(a). The applicants ought to have been vigilant. The approach of the applicants is very casual. In fact, it was not the service of respondent No. 7(a) in question, rather it was legal representatives of respondent No. 7(a), who were required to be brought on record. Therefore, in the interest of justice, the present application is allowed and orders dated 17.8.2012 and 24.5.2013 are ordered to be recalled and the appeal is restored to its original position and the applicants are granted two weeks'' time to bring on record the legal representatives of respondent No. 7(a), being a last opportunity, subject to costs of Rs. 2000/-.