BALDEV SINGH Vs. SURMA

JUDGEMENT

(1.) This appeal is directed against the order of the Additional District Judge, Hoshiarpur, dated 21st January, 1984 whereby the application on behalf of the appellants for setting aside the abatement of the appeal was dismissed.

(2.) The plaintiff-appellants filed suit for declaration that the plaintiffs are the absolute owners in posession of the suit land and the defendants be restrained from dispossessing them illegally. The trial Court dismissed the suit with respect to the declaration regarding ownership of the plaintiffs and respondents 3 to 6, but decreed the suit for permanent injunction only. Dissatisfied with the same the plaintiffs, who were three in number, filed the appeal in the Court of Additional District Judge, Hoshiarpur. Dunning the pendency of the appeal, one of the appellants, Salig Ram, died on 19th August, 1980. On 5th September, 1981, an application was made on behalf of the defendants-respondents that since the legal heirs of the deceased have not been brought on the record the appeal be dismissed as having abated. On this the learned counsel for the plaintiff-appellants a statement that there was no necessity for bringing on record the legal resentatives of the deceased appellant, as the appeal does not abate in his absence Consequently after hearing the arguments the lower appeals to Court dismissed the appeal as abated vide its detailed order date 9th February, 1982. Against the said order an appeal wsadled in this Courts it was directed therein that the plaintiffs-appellant should approach the lower appellate Court for setting aside the abatement Consequently an application dated 8th April, 1982, was file for setting aside the abatement. This application was contested on behalf of the respondent Ultimately the learned Additional District Judge found that there was complete inaction on the part of appellants and there slept over the matter for about one year and subsequently when it was brought to the notice of the Court that the appeal stood abated, no steps were taken to get the abatament set aside. Thus it was ultimately found that neither there was sufficient ground to condone the delay for there was any reason for setting aside the abatament. Consequently the said application was dismissed. Dissatisfied with the same the appellants have filed this appeal in this Court.

(3.) Learned counsel for the appellants vehemently contended that there was sufficient ground for setting side the abatement and the wrong legal advice given by the counsel for the appellants earlier should not effect their rights. Moreover, according to the learned counsel the appellants had given the list of legal heirs of the deceased Salig Ram to the Clerk of their counsel, but it was be who forget to proceed in the matter and there was no fault on their part. In support of this contention reference was made to Vaithiantha Aiyar and another v. Govindswami Odayar and others,1921 AIR(Mad) 650 and Lajpat Rai and others v. State of Punjab and others, 1981 AIR(SC) 1400.