Shiv Narayan and Anr. vs Sharda Dogra and anr

Short grievance of the petitioners in this revision petition is that the deceasedplaintiff Isher Dass died on 10.02.2004. An application came to be

filed by the legal heirs of the deceased plaintiff on 26.10.2004, wherein it was averred that the plaintiffs son was posted in the Accountant

General's office at Srinagar, as such, he could not contact his counsel, which resulted in delay of two months in filing the application for bringing the

legal heirs of deceased plaintiff on record.

The Trial Court after hearing the parties found on the fact that the application was delayed by two month and further observed that proper remedy

in the case is to file an application for setting aside the abatement proceedings alongwith application for condonation of delay. Since this would

protract the trial of the case, the Court allowed the application filed by the legal heirs of the plaintiff after accepting the reasons for condoning the

delay as sufficient cause and treated the same as an application for setting aside the abatement. As a consequent thereof, the Trial Court allowed

the application and brought the legal heirs of the deceased on record. It is this order of the Trial Court, which is subject matter of challenge in this

writ petition.

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

The contention of learned counsel for the petitioners is that in the face of Order 22 Rule 2 & 3 of CPC such order was not permissible. He further

states that there is specific provision under Order 22 Rule 9 of Civil Procedure Code which provides for filing of application for setting aside the

abatement order. It also provides that application for condonation of delay can also be filed alongwith it. The Trial Court could not have resorted

to exercise of inherent powers in face of the specific provision which provides for setting aside the abatement order.

Undoubtedly, the application for bringing the legal heirs of deceased plaintiff on record was time barred and the proper remedy for the respondents

was to file an application for setting aside the abatement alongwith condonation of delay.

Under Order 22 Rule 9 of Civil Procedure Code, where suit abates the remedy is to file an application for setting aside abatement. The Court

while allowing the application of the petitioners has treated it as an application under Rule 9 Sub Clause (2). It is no where stated that Court has

exercised its power under Section 151 CPC. Rules of procedure cannot come in the way of the court to determine the substantive rights of the

parties. The applicants/respondents have substantive right to prosecute their case after the death of their father. The effect of the impugned order is

that their application for bringing the legal heirs on record which was time barred has been construed as an application under Order 22 Rule 9

when there was no formal application on their behalf.

Now the question to be determined by this court is whether this course as followed by the court, has prejudiced the right of the petitioners. The

object of Order 22 Rule 2 & 3 and Rule 9 is that legal representatives are to be brought on record. The only question which can be contested by

the defendants/petitioners in this application is that the applicants are not legal representatives of the deceasedplaintiff. If any finding is recorded

contrary to the facts, this will substantially affects the right of the applicants. This question is not in dispute in the present application but format of

the application is being disputed by the petitioners. Any violation of rules of procedure which do not substantially effect the cause in the suit or

directly cause any violation of substantive right of the petitioners cannot be construed to have prejudiced the petitioners.

I therefore, hold that treating the present application under Order 22 Rule 9 in my opinion does not violate any right of the petitioners. The course

adopted by the Trial Court is right. The procedural wrangles are the cause of delay in dispensation of justice. Mere irregularities in following the

procedure would not give cause to the aggrieved party, unless he shows that it has adversely affected the substantive right in such proceedings

I therefore, find no merit in this revision petition , the same is as such dismissed alongwith connected CMP