Ram Samujh and Others vs Ist Additional Civil Judge

R.H. Zaidi, J.—This petition has been filed by the Petitioner under Article 226 of the Constitution of India challenging the validity of the order dated 4-9-87 passed by 1st Additional Civil Judge, Jaunpur, allowing the application for condonation of delay in filing the application for impleadment of heirs and legal representatives of Govind one of the Plaintiff and for impleadment of Smt. Chhabiraji as Respondent No. 4 in Civil Appeal No. 323 of 1979.

The facts of the case, which are relevant for the purposes of the decision of the question involved in the present petition, are that original Suit No. 145 of 1972 was filed by Plaintiffs, i.e. Bhulai and Govind for mandatory injunction and demolition. During the pendency of the suit Bhulai died and on his death his heirs and legal representatives were substituted as Plaintiffs Nos. 111 to 117. The suit was decreed on 2.8.79. Against the said decree Civil Appeal No. 323 of 1979 was filed by Defendants. In the meanwhile Govind died leaving behind his heirs and legal representatives on 19.6.85. On 6.7.87an application was filed on behalf of the Plaintiff Respondents before Court below praying that since Govind or his heirs were not impleaded in the appeal, the decree passed by the trial Court in his favour become final. The appeal was, therefore, liable to be dismissed as incompetent. A copy of the said application is alleged to have been supplied to the Counsel for contesting Respondents. Therefore, on 21-8-87 an application 37-Ka alongwith the application u/s 5 of the Indian Limitation Act was filed by the Respondents (appellants) praying that the Appellants be permitted to implead heirs of Govind and Smt. Chhabiraji as Respondents in the appeal. It was stated that in the decree prepared by the trial Court, the name of Govind was not mentioned. Consequently, his name could not be typed in the memo of appeal and the name of Smt. Chhabiraji could not be typed on account of bona fide typing mistake. It was also stated that the Senior Counsel of the Appellant could not attend the Court for a period of about one month on account of his illness, therefore, the delay in making the said application was liable to be condoned.

The Court below after hearing the Counsel for parties was pleased to condone the delay and to permit the impleadment of heirs of Govind and Smt. Chhabiraji in the appeal vide its order dated 4-9-87. Petitioners have, therefore, challenged the validity of the said order by means of present petition as staled above.

I have heard Learned Counsel for the parties.

Since the requisite affidavits have already been exchanged, which form part of the record, as desired by Learned Counsel for the parties and with a view to avoid delay in disposal of the appeal which is pending in the Court below, I have heard the petition finally.

It has been urged by Learned Counsel for Petitioner that the Court below has acted illegally in allowing the applications filed by Respondents for impleadment of the heirs of Govind and for condonation of delay. He has also submitted that appeal filed by Respondents stood abated and Court below had no jurisdiction to condone the delay in making the application for impleadment without setting aside the abatement of appeal.

It is well settled law that no body should suffer for the mistake of the Court. The omission of the name of Govind in the decree prepared by the trial Court was apparently mistake of the office of the Court. In this respect no allegation has been made against contesting Respondent either in the Court below or in the present petition that they were in any manner responsible for omission of Govind''s name in the decree of trial Court, therefore, if the name of Govind was not mentioned in the memo of appeal, the contesting Respondent cannot be held responsible for the same. Similarly, if on account of bona fade typing mistake the name of Smt. Chbabiraji was not typed in the memo of appeal, no motive can be attributed against the contesting Respondent, in as much as, as they were not going to gain any advantage by non-impleadment of Smt. Chhabiraji. It has also been rightly observed by the Court below that non-impleadment of Smt. Chhabiraji was of no consequence and could not result in abatement of appeal. Oh receipt of the application dated 6.7.87, the contesting Respondent ought to, have taken the steps for impleadment of heirs of Govind and Smt. Chhabiraji expeditiously. But it appears that since the Counsel of the contesting Respondent was, on account of illness absent from the Court for about one month slight delay in making application for impleadment cannot be said to be fatal. The some has rightly been condoned by the Court below.

The result of the condonation of delay and impleadment, of the parties would be that the appeal shall be decided on its merit, parties will have full opportunity of hearing and to place their cases before the Court below. Therefore, in my opinion, there is no question of causing any injustice to any of the parties, by the impugned order.

It is well settled in law that in the matters of condonation of delay, the Court should adopt liberal approach. A reference in this regard may be made to the decision in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , wherein it has been observed as under:

The legislature has conferred the power to condone the delay by enacting Section 5 of Indian Limitation Act, 1963, in order to enable the Courts to do substantial justice to parties, by disposing of matters on merits. The expression "sufficient case" employed by the Legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner, which subserves the ends of justice that being the life purposes for existence of the institution of Courts. It is common knowledge that this Court has been making justifiably liberal approach in the matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the heirarchy principle as it is realised that:

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) "Everyday''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

(4) When substantial justice and technical considerations are petted against each other, cause of substantial justice deserves to be preferred for other side cannot claim to have vested right in injustice being done because of non-deliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

(6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from his perspective, there was sufficient cause for condoning the delay in the institution of the appeal.

In so far as the question of abatement of appeal is concerned Order XXII of CPC deals with the death, marriage (sic)solvencies of parties and abatement of suits which is also applicable to appeal (sic) under the said Court. Abatement of suit or appeal takes place if on the death of a necessary party to the suit or appeal right to sue does not survive. In case of more than one Plaintiff or Defendants the suit or appeal abates on the death of one of them if the right to sue does not survive to the surviving Plaintiffs against the Defendants and if the heirs of the deceased are not brought within the time prescribed under the law. The suit abates as a whole or in part, as the case may be. Similarly, in cases of appeal if the decree under the appeal is joint and indivisible and is likely to result in two inconsistent decrees, the whole appeal abates otherwise only in part. Rule 6 of Order XXII, CPC provides that no abatement shall take place if the party dies after hearing the case and before pronouncement of the judgment. In the instant case, Govind had died long after the suit was decreed. It was under the facts and circumstances stated above that his name or the names of his heirs were not mentioned in the memo of appeal. The Appellants have filed application for impleadment of the heirs of Govind and also an application for condonation of delay. In the application for condonation of delay and for impleadment of the heirs of the deceased in the appeal a prayer for setting aside the abatement is implicit. A reference in this regard may be made to the decision in Sri Ram Prasad Vs. The State Bank of Bikaner and Others, , wherein it was held as under by this Court:

Moreover in case where an applicant applies for condoning, the delay for bringing on record the legal representatives, a prayer of setting aside the abatement is implicit in the prayer for substitution.

A reference may also be made to the decision in Union of India Vs. Kundan (Deceased), .

The application for impleadment and condonation of delay have been allowed by the Court below. Admittedfy, there was no specific order abating the appeal therefore, when the applications for impleadment and condonation of delay were allowed the abatement of the appeal if any, shall be deemed to have been set aside automatically.

In view of the aforesaid discussions, no case for interference in the matter under Article 226 of the Constitution of India is made out.

The writ petition fails and is dismissed, but without any order as to costs.