Ashoka Building Third Floor, Linking Road, Bandra West Mumbai v. Gurudwara Road, Bhimganj Mandi, Kota

Smt Jatindra Kaur Sethi W/o Shri Indrajeet Singh Sethi, R/o 230, Ashoka Building Third Floor, Linking Road, Bandra West Mumbai Maharashtra at present R/o 29-C, Talwandi, Kota. ----Plaintiff/Appellant Versus

1. Hemant Patni S/o Shri Heeralal Ji Patni, R/o 97, Pratap Nagar Dadabari, Kota. 2. Harpal Singh W/o Bhagat Singh, R/o House No.138-A, Gurudwara Road, Bhimganj Mandi, Kota (Since Deceased) [2025:RJ-JP:26983] (2 of 8) [CMA-1355/2011] ----Defendants/Respondents S.B. Civil Miscellaneous Appeal No. 1356/2011 Smt Jatindra Kaur Sethi W/o Shri Indrajeet Singh Sethi, R/o 230, Ashoka Building Third Floor, Linking Road, Bandra West Mumbai Maharashtra at present R/o 29-C, Talwandi, Kota. ----Plaintiff/Appellant Versus

1. Smt Yashoda Devi Gupta W/o Shri Girraj Kishore, R/o House No.319, Dadabadi Vistar Yojana, Ballabhbari, Kota. 2. Harpal Singh W/o Bhagat Singh, R/o House No.138-A, Gurudwara Road, Bhimganj Mandi, Kota (Since Deceased) 3. Parasram S/o Harish Chand Ji, R/o New Colony, Gumanpura, Kota. 4. Shyam Sunder S/o Panchumal Ji, R/o House No.7A Shopping Centre, Opposite Water Tank, Kota. 5. Charanjeet Singh Dang W/o Shri Hardeep Singh, R/o 361, Talwandi, Kota (Raj.) 6. Smt. Jagtar Kaur W/o Shri Charanjeet Singh Dang, R/o 361, Talwandi, Kota. ----Defendants/Respondents For Appellant(s) : Mr. Shailesh Prakash Sharma For Respondent(s) : Ms. Harshita Sharma for Dr. Mahesh Sharma (1355/2011 & 1356/2011) Mr. Ashwani Chobisa (1353/2011) HON'BLE MR. JUSTICE MANEESH SHARMA Order 18/07/2025

1. These present appeals have been filed on behalf of the appellant under Order 43 Rule 1(k) of the Code of Civil Procedure, 1908 (CPC) against the order dated 08.02.2011 passed by learned Additional District Judge No.5, Kota, whereby the application filed by the applicant-plaintiff under Order 22 Rule 9 CPC has been dismissed.

2. In all the pending these appeals, a common order dated

08.02.2011 is under challenge. Therefore, all the appeals are heard and decided together. [2025:RJ-JP:26983] (3 of 8) [CMA-1355/2011]

3. Vide order dated 08.02.2011, an application filed under Order 22 Rule 9 CPC was dismissed by the learned Trial Court and suit for cancellation of the sale deed filed by the appellant was ordered to be abated qua defendant No.2 Harpal Singh.

4. The facts emerged out from the pleadings of the parties are that five (5) civil suits bearing Nos.46/2001, 47/2001, 48/2001, 50/2001, 52/2001 were filed by the appellant against the respondents for cancellation of a sale deed.

5. In all the suits the common fact is that the defendant No.2 Harpal Singh expired on 13.07.2009, and no steps were taken by the appellant to bring the LRs of the deceased defendant/respondent No.2 Harpal Singh within stipulated time, therefore, vide order dated 19.08.2010, the trial Court abated the suit qua defendant No.2 Harpal Singh.

6. On 28.09.2010, the plaintiff appellant filed an application under Order 22 Rule 9 CPC for setting aside the order of abatement and also for taking the LRs of defendant/respondent No.2 Harpal Singh on record.

7. In the application under Order 22 Rule 4 of CPC, it was pleaded that the defendant Harpal Singh died on 13.07.2009 but the application could not be filed on account of applicant's daughter Manpreet having being thrown out from her matrimonial home by her husband and her infant child was also snatched from her daughter, therefore, the applicant was not in a proper state of mind and had suffered profound grief and thereafter, she fall sick and after her recovery application was filed and delay was neither deliberate nor intentional but was wholly bona fide. It was further pleaded that defendant Harpal is an important party since he had [2025:RJ-JP:26983] (4 of 8) [CMA-1355/2011] prepared the fraudulent power of attorney and sold the property and if delay is not condoned the very purpose of filing the suit would frustrate and accordingly she prayed that the LRs of defendant/respondent No.2 Harpal Singh may kindly be taken on record, and the order of abatement may kindly be set aside.

8. The said application of the plaintiff/appellant was contested by the defendant/respondent wherein they denied the averments made in the application, and further submitted that the explanation put forward by the plaintiff/appellant could not be termed as sufficient cause for the delay in filing the application, therefore, the applications may kindly be dismissed.

9. After hearing arguments of the learned counsel for the respective parties the learned trial Court vide order dated

08.02.2011, dismissed the application for setting aside the order of abatement and consequently maintained the order of abatement of the suit qua defendant/respondent No.2 Harpal Singh.

10. Being aggrieved of which plaintiff/appellant has preferred the present appeal. Learned counsel for the plaintiff/appellant submits that the suit was filed by the plaintiff/appellant in 2001 and death of defendant/respondent No.2 Harpal Singh took place in

13.07.2009 and in view of the facts stated in the application, the appellant was prevented by sufficient cause in filing the application under Order 22 Rule 4 read with Rule 9 of the CPC within time, therefore, prayed that a sympathetic and liberal approach may kindly be adopted and the impugned order passed by the learned trial Court may kindly be set aside and consequently, applications filed by the appellant under Order 22 [2025:RJ-JP:26983] (5 of 8) [CMA-1355/2011] Rule 4 read with Rule 9 of the CPC as well as application filed under Section 5 of Limitation Act, may kindly be allowed.

11. Per contra, learned counsel for the defendant/respondent vehemently opposes the said submission and submits that the impugned order passed by learned trial Court is perfectly just and proper and does not call for any interference. They further submit that the learned counsel for the appellant failed to prove any sufficient cause for setting aside the abatement order dated

09.08.2010 or for condonation of delay in bringing LRs of defendant/respondent No.2 Harpal Singh on record. Accordingly, prayed for dismissal of the appeal.

12. Heard and considered the submissions made at bar and perused the material available on record.

13. From the record it is revealed that all the suits were filed by the plaintiff/appellant in the year 2001 and during the course of trial after a period of eight (8) years. Defendant/respondent No.2 Harpal Singh expired on 13.07.2009 and the learned trial Court vide order dated 09.08.2010, abated the suit qua defendant/respondent No.2 Harpal Singh, thereafter the plaintiff/appellant filed an application under Order 22 Rule 4 read with Rule 9 of the CPC and the said application was rejected.

14. From a bare perusal of the impugned order it is revealed that the learned Trial Court has not appreciated that the plaintiff/appellant has stated that the defendant Harpal Singh died on 13.07.2009 but the application could not be filed on account of applicant's daughter Manpreet having being thrown out from her matrimonial home by her husband and her infant child was also snatched from her daughter, therefore, the applicant was not in a [2025:RJ-JP:26983] (6 of 8) [CMA-1355/2011] proper state of mind and had suffered profound grief and thereafter, she fall sick and after her recovery application was filed and delay was neither deliberate nor intentional but was wholly bona fide.

15. A bare reading of the impugned order, reveals that the learned trial Court has taken a very harsh view and committed serious illegality in dismissing the application for setting aside the abatement qua defendant/respondent No.2 and not taking the LRs of defendant/respondent No.2 on record because the explanation provided by the appellant was based on family feud and same was neither deliberate nor intentional rather was a bona fide one. Therefore, in view of the facts stated in the application under Order 22 Rule 4 read with Rule 9 of the CPC, the learned Court below ought to have taken a liberal view.

16. That the learned Trial Court has also erred in rejection of the application while holding that the applicant was not vigilant and she has not produced any document regarding the said hardship, such finding is arbitrary because the appellant is pursuing the suit from last eight years and looking to the nature of problem she faced, no documentary proof can be present by any such affected party.

17. The Hon'ble Apex Court in the matter of Saiyad Mohammad Bakar El-Edroos (Dead) by Lrs. Vs. Abdulhabib Hasan Arab and Ors. reported in 1998 INSC 170 while elucidating on the conflict between procedural law and substantive law held as under: "8. A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural [2025:RJ-JP:26983] (7 of 8) [CMA-1355/2011] law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away be the procedural law what is given by the substantive law."

18. Thus, it is trite law that since procedural laws are handmaids of justice, in case substantial justice is pitted against technicalities of law, justice should prevail. Procedural laws are after all handmaids of justice, they are not meant to hamper the cause of justice or sanctify miscarriage of justice.

19. Further, the Hon'ble Supreme Court in the matter of Sital Prasad Saxena vs. Union of India reported in (1985) 1 SCC 163 while considering the pleas of plaintiffs for substitution of deceased parties, held that liberal interpretation should be adopted and the Court should make an endeavour to let justice prevail over technicalities of law.

20. The delay in bringing on record the legal representatives of the deceased party is different from the delay in filing the appeal itself. The nature of the discretion to be exercised by the court in the matter of condonation of delay in filing appeals are different from those to be considered and exercised in an application filed for condoning delay in setting aside abatement of a suit or appeal.

21. That while dealing with application for setting aside the abatement, the approach of the court should be liberal with a justice oriented perspective, recognizing that the primary aim is to ensure that party’s opportunity to have a case decided on its merits, and ensuring that procedural technicalities do not hinder the substantive resolution of the dispute. [2025:RJ-JP:26983] (8 of 8) [CMA-1355/2011]

22. The primary object is to prevent injustice and ensure that party’s substantive rights are not unduly sacrificed due to procedural omission, and such requests are to be viewed as an effort to revive the suit and prevent the harsh consequence.

23. Considering the facts and circumstances of the matter and the position of law propounded by the Hon'ble Apex Court, this Court is of the considered opinion that the impugned order passed by the learned Trial Court suffers from perversity because despite narrating sufficient cause, delay has not been condoned and abatement is not set aside, therefore, impugned order deserves to be set aside.

24. Accordingly, the impugned order dated 08.02.2011 is quashed and set aside and the applications filed by the plaintiff/appellant for condonation of delay as well as for setting aside the order of abatement are allowed and the LRs of deceased defendant/respondent No.2- Harpal Singh are taken on record subject to cost of Rs.3,000/- (each appeal).

25. Accordingly, the appeal stands allowed, and the learned Trial Court is directed to proceed further in the matter in accordance with law. DEEPA-145-149 (MANEESH SHARMA),J