Raghubar Dayal and others vs VIIIth Addl. District Judge, Meerut and others

R.H. Zaidi, J.—By means of this petition, under Article 226 of the Constitution of India, petitioners pray for issuance of a writ, order or direction in the nature of certiorari quashing the judgment and order dated 7.2.1992 passed by VIIIth Addl. District Judge, Meerut, allowing Civil Misc. Appeal No. 259 of 1988.

The relevant facts of the case giving rise to the present petition in brief arc that Smt. Ramkali, mother of respondent No. 2 to 4, filed Original Suit No. 867 of 1984 for cancellation of the will dated 3.4.1967 executed by Mohan Lal, her father, in favour of the petitioners bequeathing all his agricultural land and residential house situated at Meerut in their favour, and for permanent injunction directing the defendants-petitioners not to transfer the land in dispute in favour of defendant Nos. 4 to 6. The suit was contested by the defendants-petitioners. For the purpose of present case, it is not necessary to state the pleas taken by the parties in their pleadings (plaint and written statement). On the basis of the pleadings of the parties, issues were framed by the trial court. One of the issues related to valuation of the suit which was decided in plaintiff''s favour on 12.11.1987. Aggrieved by the said order, the defendants-petitioners filed a civil revision. It was on 22.3.1988 Smt. Ramkali died leaving behind the respondent Nos. 2 to 4 (sons) and Pratap Singh (husband) as her heirs and legal representatives. The petitioners did not make any application for substitution of the heirs of Ramkali in the civil revision filed by them and permitted the said revision to be dismissed in default. Thereafter an application for substitution of heirs of Ramkali along with an application u/s 5 of Limitation Act was filed by respondent Nos. 2 to 4 on 11.7.1988. The said application was objected to and was opposed by the petitioners. The trial court dismissed the substitution application as barred by limitation holding that the affidavit filed in support of the substitution application was not supported by the medical certificate by its judgment and order dated 26,9.1998. Aggrieved by the judgment and order passed by the trial court, contesting respondents filed Misc. Civil Appeal No. 259 of 1988 which ultimately came to the file of VIIIth Addl. District Judge, Meerut. The appellate court, after hearing the parties and perusing the record of the case, reversed the finding recorded by the trial court, set aside the Judgment and order passed by the trial court dated 26.9.1988 and allowed the appeal by its judgment and order dated 7.2.1992, hence the present petition.

I have heard learned counsel for the parties and also perused the record.

Learned counsel for the petitioners vehemently urged that the application for substitution was filed after expiry of the period of limitation prescribed for the same. The delay in filing the said application was not explained properly and that no application for setting aside the abatement was made. The Court below acted illegally in access of its jurisdiction in allowing the appeal and setting aside the order passed by the trial court. On the other hand, learned counsel for the contesting respondents supported the judgment and order passed by the Court below. It was urged that the Court below has taken into consideration all relevant facts and materials on record and thereafter rightly set aside the findings recorded by the trial court and the order passed by it. It was urged that the Court below rightly allowed the appeal and the order passed by the said Court does not suffer from any illegality or infirmity. Further that it was not necessary to file application for setting aside abatement separately.

I have considered the submissions made by the learned counsel for the parties.

Present petition was filed in this Court on 1.5.1992. On 15.5.1992 petitioners were permitted to serve the respondent Nos. 2 to 8 and meanwhile the operation of the impugned order dated 7.2.1992 passed by respondent No. 1 was stayed. Since then more than 5 years have already elapsed and in spite of the fact counter and rejoinder-affidavits have already been exchanged : but this petition remained pending.

Article 120 of the Limitation Act provides 90 days limitation for making an application under the CPC to have the legal representatives of the deceased-plaintiff or appellant or of a deceased-defendant or respondent made a party from the date of death of the plaintiff-appellant, defendant or respondent, as the case may be. Similarly Article 121 provides a period of 60 days to make an application to set aside the abatement from the date the suit or appeal abates. Thus, an application for substitution with a prayer to set aside abatement may be made within a period of 150 days from the date of the death of the plaintiff-defendant or appellant or the respondent as the case may be. In the present case, admittedly the application for substitution along with the application for condonation of delay, in filing the substitution application, was filed within 150 days (i.e., in 101 days). In case the application for substitution is to be treated as an application for setting aside the abatement, there was no question of delay involved in the present case. Otherwise also, there was only about 20 days delay in filing the substitution application.

This Court and the Apex Court have been taking quite liberal view in the matters of condonation of delay. The insistence normally is upon the decision of the case on merits after contest. Technical objections and pleas are not to be given undue weight in dispensation of justice. It has consistently been ruled that the words "Sufficient Cause" should be liberally construed, so as to advance the substantial justice particularly when no want of bona fides or negligence is imputable of the appellant. The Court below has also rightly placed reliance upon the decisions of Apex Court in Sital Prasad Saxena (Dead) by Lrs. Vs. Union of India (UOI) and Others, and Ram Sumiran and others v. D.D.C. and others. 1985 (I) SCC 431, and recorded cogent reasons for the condonation of delay, if any. in making the application for substitution of heirs of Smt. Ramkali.

The Court below relying upon the decision in Union of India Vs. Kundan (Deceased), , rightly held that an application for substituting the heirs of the deceased-plaintiff was to be treated as an application for setting aside Ihe abatement. This Court in Mt. Kulsoomun Nissa and another v. Noor Mohammead alias Sultan Haider and another, 1936 All 667, ruled that where an application for substitution was filed slightly after the period of limitation, it was not necessary to make a separate application u/s 5 of Limitation Act for condonation of delay. The Court could even on oral request condone the delay. Similarly in Virendra Kumar Singhal v. Murari Lal Singhal and others 1993 (2) ALR 381 , it was held that where the substitution application was filed, it was not necessary to make a separate application for setting aside the abatement and condonation of delay. Similar view was taken by this Court in Smt. Shakuntala Devi Vs. Banwari Lal and Others, . In view of the aforesaid decisions, there is no difficulty in holding that the application for substitution was also an application for setting aside the abatement and the order passed by the trial court was an order refusing to set aside abatement. The appeal filed by the contesting respondents before the Court below against the judgment and order passed by the trial court was, thus, quite competent and maintainable. The submissions made by the learned counsel for the petitioner are, thus, contrary to well-established law, the same, therefore, cannot be accepted.

In the result, no case for interference under Article 226 of the Constitution of India is made out, the writ petition fails and is dismissed with costs.