BISHEN PRASAD TIWARI Vs. SHEELA DEVI

JUDGEMENT

(1.) Leave granted.

(2.) Procedure, as is trite, is the handmaiden of justice, but in law, it cannot be treated as a lowly servant and ignored altogether; especially if substantial rights are involved, since it makes justice delivery even handed.

(3.) Shorn of the facts, a delay of 501 days occurred in filing the application for setting aside abatement and impleading the legal representatives (LRs), to substitute the deceased first appellant in an appeal. The Appellate Court found by Annexure P10 order that Rule 9(3) of Order XXII of the Code of Civil Procedure, 1908 (CPC) clearly makes applicable Sec. 5 of the Limitation Act to applications under Rule 9(2). Hence, any person seeking relief of condonation of delay ought to file a petition under Sec. 5 of the Limitation Act along with an application to set aside abatement. No such application was filed and the grounds stated for the delay of 501 days as discernible from the application for setting aside abatement, produced as Annexure P7, was that the Advocate who was engaged was pre-occupied with personal work. The absence of an application for condonation of delay coupled with the vague grounds stated, resulted in the rejection of the application.