SURENDRA CHANDRA DAS Vs. ON THE DEATH OF JUGAL KISHORE KEDIA HIS HEIRS AND LEGAL REPRESENTATIVES SMTI. GINIA DEVI AND ORS.

JUDGEMENT

(1.) THIS application under Order 22 Rule 3 and under Section 151 of the Code of Civil Procedure for amending the cause title of the Civil Revision No. 17 of 1983 along with a condonation petition for substituting the original opposite party by his heirs, has arisen under a peculiar course of event.

(2.) THE original Plaintiff, Jugal Kishore, who was opposite party in appeal died during the pendency of appeal before the Assistant District Judge and his legal representatives has been brought on record by order dated 11.3.81. But the lower appellate court dismissed the appeal preferred by the present revision Petitioner by confirming the trial Court's judgment. Against that judgment of the lower appellate court, the present Revision Petitioner preferred a revision petition before this Court.

(3.) THESE applications have been streneously opposed by the learned Counsel for Respondents Mr. D.N. Barua. His contention was that the revision against the dead man being a nullity, and an application under Section 22 Rule 3 can not stand. He submitted that the application for condonation of delay for substitution further aggravated the Petitioners claim as inordinate delay in filing the condonation petition has been explained to satisfy the court and lack of diligent and, negligence on the part of the Appellant can not be taken technically by the High Court to consider such applications. He further submitted that in this instant case an application under Order 22 and Section 5 of the limitation Act, court can not amend the defects where the Applicant apparently failed to satisfy the court with sufficient seasons of the delay. In support of Lift contention Mr. D.N. Baruah, learned Counsel for the Respondents referred some decisions to substantiate his submissions. Mr. Baruah referred, AIR 1961 Cal 417 S.C. Chakravarty v. J.N. Singh Roy wherein the Respondent died after filing the appeal and in appeal substitution was sought to be nude after filing the Memo of appeal. It is held that the court can not allow the cause title to be amended by entering the names of the legal representatives of the dead man under Section 153 of the Code of Civil Procedure where the Respondent had died before the presentation of the Memo of appeal, as the case is not one of more addition of parties, but is in substance a case where an appeal is being filed against the legal representatives of the dead party on the day on which the application for adding him as party Respondent to the appeal is filed. Section 153 can not be invoked by a party who is guilty of laches to cover up his default. The power thereunder can be executed by the Court in a case where the defect or error" which would vitiate the proceeding is not due to a party's default. A negligent party can not ask the court to allow laches and rectify the defects.