RAGHUBIR SINGH Vs. JWALA DEVI

JUDGEMENT

(1.) These two applications have been filed by the proposed LRs of the deceased appellant Raghubir Singh praying for restoration of the appeal/application under Order 22 Rule 3 Code of Civil Procedure dismissed by the Court on 29-09-1999. -It is stated that the appellant Raghubir Singh died on 26-01-1999 at the young age of 38 years and during his life time he himself was pursuing the present appeal and his wife and children i.e. proposed LRs had no knowledge about the pendency of the present proceedings and they were required to take stens for their substitution in place of the deceased appellant. Counsel for the appellant informed the applicants that the matter was listed before the Court on 10-9-1999 and had been adjourned to 3-12-1999. However, the matter suddenly appeared in-the list of 20-9-1999 and was dismissed in default. As the application for restoration was not moved within time, an application for condonation of delay has also been made.

(2.) The application is opposed on behalf of the respondents mainly on the ground that it is hopelessly barred by time and is otherwise not maintainable as the applicants have not come before this Court with clean hands and have suppressed material facts. It is also stated that on 15-7-1999 when the Court ordered issue of notice on the application of the respondent to the counsel who had filed the present appeal, the counsel appeared on 16-8-1999 and was directed by the Court to inform within a week the date of death of the appellant and the matter was adjourned to 10-9-199. On 10-9-1999 the matter was listed before Court for appropriate orders and adjourned to 20-9-1999 in the presence of the counsel. That the absence of the counsel/applicants on 20-9-1999 was without any sufficient reason or explanation and the appeal/substitution application are not liable to be restored.

(3.) I have heard the learned counsel for the parties and given my thoughtful considerations to their submissions. Having regard to the facts and circumstances of the present case, more particularly to the fact that the appellant died at a young age, the possibility of the applicants/legal representatives herein of not being in the know of the proceedings pending in this Court cannot be ruled out. It is true that the Counsel for the appellant became aware of the death of the appellant and he was expected to take further steps for substitution of legal heirs of the deceased appellant and in that view of the matter he was negligent. However, it is well settled that a party should not be penalised for the negligence or lapse of the counsel. This Court is, therefore, of the considered opinion that it would be expedient in the interest of justice to restore the appeal/substitution application. The applications are allowed subject to payment of Rs.2500/~ as costs. CM No. 576/2000 & 581/2000