HARI CHAND Vs. LACHHMAN

JUDGEMENT

(1.) This appeal is directed against the judgments and decrees of the Courts below dismissing the suit of the appellant as abated.

(2.) The facts of the case in brief are that the appellant filed this suit for declaration that he was the sole heir of Mangu as he was his adopted son. The suit was resisted but decreed on merits by the trial Court on 13.12.1975. The appeal was filed by the defendant-respondents before the First Appellate Court and it was argued that Ram Swroop, one of the defendants, died and since his legal representatives were not brought on record of the case within the time prescribed, the suit has abated. The Additional District Judge, Jind by his order dated 3.2.1977 remanded the case of the trial Court for a fresh decision after trying the question of abatement. The trial Court after remand dismissed the suit by recording finding that Ram Swroop defendant died on 17, 1972. The appeal was filed by the appellant before the First Appellate Court which had been dismissed. The plaintiff-appellant under the aforementioned circumstances has come up in appeal before this Court.

(3.) I have gone through the judgments and decrees of the Courts below and the application filed before the trial Court under the provisions of Order 22 rules 3 and 9 read with section 5 of the Limitation Act. It was stated in the application that Ram Swroop died somewhere in the year 1976 after the amendment was made by the High Court according to which in the case of the death of a defendant, suit would not abate and that it would not be the obligation of the plaintiff to file an application to bring the legal representatives on record of the case. In the alternative, it was pleaded in the application that if the defendant had died before the amendment, the delay in filing the application for bringing the legal representatives of Ram Swaroop deceased on record, be condoned and the abatement be set aside as the factum of death of Ram Swroop was not within the knowledge of the plaintiff- appellant. From the perusal of the judgments of the Courts below an impression has been left upon the mind of this Court that the Courts below were more at pains to determine the date of death of Ram Swroop. After determining the date of death of Ram Swroop, the plaintiff was non-suited. The Courts below in my considered opinion, have not applied their minds to the other alternative plea of the plaintiff and condone the delay and set aside the abatement by holding the death of Ram Swroop was not within he knowledge of the plaintiff-appellant. The plaintiff was not to gain anything by filing an application late if he had really known about the death of Ram Swroop. It appears that when the suit was initially tried by Shri V.K. Jain (II), Senior Subordinate Judge, Jind, and a decree was passed, nothing had come on the judicial file that Ram Swroop had died. It appears that neither of the parties knew about the death of Ram Swroop. It further appears to me that even the defendants learnt about the death of Ram Swroop only during the pendency of first appeal and it is only at that time when the Court was apprised of the death of Ram Swroop when the case was remanded. In these circumstances I am of the considered view that the delay in filing the application for bringing the legal representatives could have been condoned. In any case, I, while believing the averments made in the application, am inclined to condone the delay and set aside the abatement. The law as well as equity warrant that the Courts should not non-suit a plaintiff on the basis of technical considerations. The Courts have to be liberal in condoning the delay in deciding the application for bringing the legal representatives on the record of the case. Taking into consideration the totality of the circumstances of the case, I am of the considered view that the plaintiff-appellant deserves the determination of his rights after a full-fledged trial of the case.