MADAN NAIK DEAD Vs. HANSUBALA DEVI

JUDGEMENT

(1.) One Jogendra Naik and two others filed a suit bearing No. 81/11 of 1952/54 against one Madan Naik and 5 others for a declaration of title and confirmation of exclusive possession in respect of a tank and its embankment in village Dahiari in the Court of Additional Munsif, Giridih. The suit ended in a decree in favour of the plaintiffs on June 25, 1954. The defendants in the suit Madan Naik and others preferred First Appeal in the Court of Subordinate Judge, Hazaribagh. The appeal came up for hearing before First Additional Subordinate Judge, Hazaribagh who by his judgment and order dated September 24, 1955 dismissed the appeal and confirmed the decree passed by the trial Court The original defendants carried the matter in Second Appeal No. 1872 of 1955 to the High Court of judicature at Patna. During the pendency of the appeal, it transpired that Jogendra Naik - respondent No. 1 in the appeal had died on July 10, 1955 when the matter was pending in the First Appellate Court. An application was made on May 14, 1956 for setting aside, the abatement and bringing the heirs And legal representatives of deceased Jogendra Naik on record. The High Court by its judgment and order dated July 26, 1957 set aside the decree passed by the First Appellate Court and remitted the appeal to the first Appellate Court with a direction that the application for setting aside the abatement and substitution and the counter-affidavit opposing the same be considered by the First Appellate Court and dispose of the same in accordance with law. When after the remand the appeal came up for hearing before the First Additional Sub-Judge, Hazaribagh. The learned judge took up the application for setting the abatement and for substitution. The learned Judge was of the opinion that no case was made out for condoning the delay in making the application for substitution and accordingly declined to condone the delay. Consequently, the learned Judge rejected the application for substitution as time-barred. The learned Judge further held that in view of the failure of the appellants to bring heirs and legal representatives of deceased Jogendra Naik. on record in time the first appeal abated as a whole. While making this order, the learned Judge articulated the final order as under which gave precedence to procedural clap-trap without any adjudication of the dispute on merits. The order made by the learned Judge reads as under :

(2.) The learned single Judge who heard the appeal from order was of the opinion that the appellants in the appellate court had successfully made out sufficient cause for condoning the delay in seeking substitution of the heirs and legal representatives of the deceased 1st respondent Jogendra Naik and accordingly condoned the delay, set aside the abatement and granted substitution. A contention was raised on behalf of the respondents in the High Court before the learned Judge that as the second appeal was dismissed, the decree having become final and having merged in the decree of the High Court, it was not open to the learned Judge to allow the appeal from order and the appeal from order is liable to be dismissed as having become infructuous. Negativing this contention, the learned Judge held that as the second appeal was incompetent, "it may be deemed to have never been filed, since no second appeal lay, and, therefore, the order dismissing the appeal would be treated as ineffective." The original plaintiffs preferred Letters Patent Appeal No. 48 of 1961 against the decision of the learned single Judge. A Division Bench of the Patna High Court held that the dismissal of the second appeal would render the appeal from order infructuous. The Division Bench was further of the opinion that if the appeal from order is allowed and the matter is remitted for re-hearing on merits conflicting decrees would come into existence which is impermissible. Accordingly the Letters Patent Appeal was allowed and the decision of the learned single Judge in appeal from order was set aside. The High Court at the instance of the original defendants granted a certificate under Art. 133 (1) (c) of the Constitution as in the opinion of the High Court the matter is of sufficient importance to deserve consideration by the Supreme Court.

(3.) Frequently, it appears that procedural provisions devised to facilitate justice are so interpreted which would inhibit adjudication of dispute on merits which in this case started way back in 1954 and the view we are disposed to take would necessitate consideration of the same by the first appellate court after nearly three decades. Such an approach stigmatised the justice delivery system being condemned as prolix, unending dilatory and time-consuming.