Ainrawatl, Bevl w/0 RamlEesb TJ.wari. v. RamjaBna Prajapati & Ors

HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 1160 of 2003 Smt. Amrawati Devi. Versys Ramjanma Prajapati & others. APPELLANT Applicant RESPONDENTS Non-applicants MEMOOF APPEAL UNDER ORDER 43 RULE Kk) OF THE CIVIL PROCDURE CODE •ill|i"BR!;l('-l S.B: Hon'ble Mr.Justice N.K.Aaarwal Present : Shri Shakti Raj Sinha, counsel for the appellant. Shri Vikram Dixit, counsel for respondent No. 1. Shri G.D. Vaswani, GA for the State/respondent No. 8. ORDER (08.01.2013)

#1. Instant appeal is directed against the order dated 28.10.2003 passed by llnd Additional District Judge, (Fast Track Court), Surajpur, District Surguja in M.J.C. (Civil) No. 01/2003 whereby tS»e!g appellant's application for bringing LRs of deceased/respondent No. 1 Badan Ram on record after setting aside abatement and condoning the delay in filing substitution application has been dismissed.

#2. Facts, in brief, necessary for disposal of this appeal are that: appellant/plaintiff - Smt. Amrawati Devi filed a Civil Appeal No.14-A/2002 against Badan Ram and other respondents. Badan Ram died cluring pendency of the appeal on 7.3.2003. The application filed by the appellant under Order 22 Rule 4(4) of CPC on

5.7.2003 was dismissed by the trial Court vide order dated

11.8.2003, dismissing the appeal also as abated.

#3. Appellant, therefore, filed M.J.C. (Civil) No. 01/2003 under Order 22 Rule 9(2) of the CPC for setting aside the dismissal ^N^^^^^^^t^^^^^j ^^^^^^11B tj^^^|:;^ |1^|T-'HIN'- 1 ^^y • alongwith application under Section 5 of the Limitation Act. Vide order impugned the same was dismissed. Hence this appeal.

#4. Shri Shakti Raj Sinha, learned counsel appearing for the appellant would submit: there were bonafide reasons for not filing the application for bringing legal representatives of deceased Badan Ram on record in time and, therefore, the court below has committed gross error of law in refusing to set aside the abatement.

#5. On the other hand, counsel for respondent No. 1 supported the order impugned.

#6. I have heard learned counsel appearing for the parties and perused the material available on record including order impugned.

#7. Admittedly, Badan Ram was died on 7.3.2003 and this fact was brought to the noticeof appellant only on 7.4.2003 when the legal representatives of Badan Ram have filed an application under Order 9 Rule 7 of CPC. Appellant, thereafter, pursued her remedy by filing application under Order 22 Rule 4(4) of CPC, for hearing of the appeal in the absence of deceased/respondent Badan Ram. As the above application has been dismissed by the appellate court, application for setting aside abatement after condoning the delay in filing the application was preferred by the appellant on 13.8.2003 i.e. after a period of about 157 days from the date of death of Badan Ram.

#8. The reasons assigned by the appellant for not filing the application in time appears to be bonafide and unintentional in the light offactsas mentioned above. '^^ c°

#9. The Supreme Court in case of N. Balakrishnan v. M. Krishnamurthy, reported in 1998 SAR (Civil)-739, has held in para 13 to 15 as under : "13. Rules of limitation are not meant to destroy the right of parties. They are meant to se that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the remedy vested time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public is enshrined in the maxim Interest It policy. reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not remedy to dilatory tactics but seek their resort promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

#14. A court knows that refusal of condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court This is always deliberate. "sufficient court has held that the words cause" under Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice vide Shankuntala D6V\ Jain v. Kyntal Kumari and State of West Bengal v. The Administrator, Howrah Municipality. ,,-.< 15. It must be remembered that in every case of delay there can be some lapse on the part"' of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If tsw l-°lt-rr-'~~t '"•s'B3E;''aiH"'etsB!as!Bn^^—naB the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately then the court should lean against to gain the explanation. While condoning acceptance of delay the Could should not forget the opposite party It must be borne in mind that he is a altogether. looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."

#10. By applying the ratio of law laid down by the Supreme Court in the aforesaid case, in the facts & circumstances of the case, in my opinion, the court below has fallen in error in refusing to set aside the abatement.

#11. Accordingly, the appeal is allowed. Order impugned dated ,gil!R

28.10.2003 is set aside. The application for setting aside abatement filed on 13.8.2003 is also allowed. The matter is remitted back to the appellate court to permit the appellant to substitute the legal representatives of deceased/respondent No. 1 Badanram in his place, and thereafter, to proceed with the case in accordance with law.

#12. Record of the court below be sent back forthwith.

#13. Parties are directed to appear before the court below on 11 February,2013.

#14. No Qcder as to costs. Sd/- ., N.K. Agrawal Judge !-i:~""