RAM KALI Vs. RAMESH CHANDER

JUDGEMENT

(1.) This appeal under Order 43 rule 1 (k) of the Code of Civil Procedure (hereinafter called 'the Code') is directed against the order dated 22nd May, 1979 refusing to set aside the abatement of the appeal.

(2.) The respondents filed a suit against Misri Lal, predecessor of the appellants for the recovery of Rs. l,000.00 as damages for use and occupation at Rs. 30.00 per month. The suit was decreed by the Trial Court on 20th April, 1977 Misri Lal filed an appeal before the lower appellate court on 6th May, 1977 but unfortunately he died on 29th August, 1977 during the pendency of the appeal. The appellants before this court on 29th November, 1977 filed an application under Order 22 rule 3 and Section 151 of the Code for their substitution in place of the deceased Misri Lal. This application is dated 28th November, 1977. It is admitted that 27th November, 1977 was Sunday. The respondents in reply submitted that the application under Order 22 rule 3 was barred by time and that the appeal had abated. On 6th October, 1978 the appellants filed another application supported 'by an affidavit under Order 22 rule 9 and Section 151 of the Code for condoning the delay of one day in filing the previous application under Order 22 rule 3 of the Code. In this application it is submitted by the appellants that after the death of Misri Lal there were negotiations for amicable settlement of their disputes and in fact an agreement had been reached between the parties but the respondents were putting off the formal signing of the agreement on one pretext or the other, that they were given to understand that the application for bringing on record had to be filed within a period of three months from the date of death, that the last date for filing the application for substitution was coming to close but the respondents were avoiding and therefore the appellants approached their counsel on 27th November, 1977 when they were advised to file the application for substitution. It is further stated that the application was drafted on 28th November, 1977 and their counsel instructed them to get the application signed by the heirs and file the same in court. On that date, it is further stated, that Ramesh Sharma, one of the appellants, went to his house to obtain the signatures of his mother and others but he developed serious pain in the abdomen and vomitted and thus he was confined to house till about 3.30 p.m. and after obtaining signatures of all the heirs on the application he came to the court at about 4.30 P.M. when the Presiding Officer had retired. It is also mentioned that the appeal before the lower appellate court was fixed for 29th November, 1977 and the Reader of the court told him to file the application on the next day as the appeal was also fixed for that date. Under these circumstances it is stated, the application for substitution was not filed on or before 28th November, 1977 but was filed on 29th November, 1977. The respondents deny all the allegations of the appellants. The alleged negotiations for settlement are also denied by the respondents.

(3.) The Additional District Judge by the impugned order dismissed the said two applications holding that the same were barred by time and hence this first appeal.