RATANLAL Vs. SHIVLAL AND OTHERS

JUDGEMENT

(1.) This appeal is by the appellant/plaintiff against the judgment and decree dated 3.3.2005 passed by First Additional District Judge, Shivpuri in Civil Appeal No. 2A/2001, reversing the judgment and decree dated 25.11.2000 passed by First Civil Judge Class-2, Shivpuri in Civil Suit No. 98A/1999.

(2.) During the pendency of this appeal, the sole appellant/plaintiff Ratanlal died on 11.10.2008. Thereafter, after lapse of a period of more than six years, the legal representatives of deceased appellant filed an application under Order 22 Rules, 3 and 11 Civil Procedure Code for bringing the legal representatives of deceased appellant on record, together with an application under Order 22, Rule 9 Civil Procedure Code, read with Sec. 5 of Limitation Act Civil Procedure Code on 20.1.2015 to condone the delay in filing the application under Order 22, Rule 3 and 11 Civil Procedure Code and to set aside the abatement. In the applications the legal representatives/applicants contended that the appeal was filed in the year 2005 and then it was listed only in the year 2014. On 28.3.2014 appeal was admitted for final hearing and notices were directed to be issued to the respondent. Again the case was listed on 15.9.2014. From the service report, it came to the knowledge that the respondent No.6 had died and counsel was directed to take steps for substitution of legal representatives of deceased respondent No.6. On 1.10.2014 and 12.11.2014 the case was listed for the same purpose. As the legal representatives of deceased respondent No.6 were already on record as respondents No.7 and 8, therefore, the name of respondent No.6 was ordered to be deleted on 11.12.2014. Thereafter, the counsel sent a letter on the address of the appellant, thereupon wife of the appellant along with son Devendra contacted the counsel and told about the death of appellant Ratanlal. On their instructions, the applications were prepared and submitted before this Court.

(3.) It is also contended that the applicants/legal representatives of the deceased appellant were not aware about pendency of present second appeal and further son of deceased appellant, namely, Devendra was in jail and he was released from jail on 20.4.2013. In these circumstances, the application for setting aside the abatement could not be filed within the prescribed period of limitation, therefore, delay deserves to be condoned and applications be treated to be within time and legal representatives of deceased Ratanlal be taken on record. In support of his submissions, learned counsel for the appellant placed reliance on the judgments in the cases of Prithvi Raj (Dead) by Lrs. Vs. Collector, Land Acquisition, H.P. and another (2005) 12 SCC 198 ; Ram Sumiran and others Vs. D.D.C. and others (1985) 1 SCC 431 ;and, Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (dead) by LRs and others, 2009 (1) MPLJ 510 .