AMAR KAUR Vs. MEHAR SINGH

JUDGEMENT

(1.) The predecessor-in-interest of the present appellants filed a suit for possession by way of specific performance of an agreement, dated 16th May, 1979. He lost his cause before the trial Court and being aggrieved of the same, carried an appeal before the District Judge. During the pendency of the appeal, he died on 2nd February, 1990. His legal representatives who are the present appellants, filed an application for bringing them on record on 16th May, 1989. When the matter came up for arguments, it was contended on behalf of the respondents that since the application was filed after the expiry of 90 days of the death of the appellant, they shall have to file an application so as to plead sufficient cause, for condoning the delay. That application was filed on 31st January, 1991 and by that time, more than 114 days had gone by from the date of the death of the predecessor-in-interest. They also prayed for the setting aside of the abatement. Both these applications were dismissed by the impugned order, dated 10th April, 1991, and against this order, the present appeal has been filed.

(2.) Mr. Gian Singh, learned counsel for respondent No. 6 raised a preliminary objection to the maintainability of the appeal. The precise argument of the learned counsel is that after the decree in the suit and the dismissal of he appeal having abated, only Regular Second Appeal was competent and not the second appeal against the order. The learned counsel further contends that this method, i.e., filing of second appeal against order, has been adopted with a view to save the court-fee and the court-fee payable was quite substantial. This being a suit for specific performance, ad valorem court-fee was payable. There appears to be sufficient merit in the argument of the learned counsel, but considering the same in view of the facts and circumstances of the case, the same will have no effect on the merits of the case. It is correct that after the decree in the suit and dismissal of the appeal as having abated decree followed the judgment and it was regular second appeal which was competent. However, in the interest of justice, this court can treat the second appeal an order to be a regular appeal if the circumstances of the case, equity, good conscience and justice so demand.

(3.) After hearing the learned counsel for the parties, I am convinced that the impugned order cannot be sustained, and, therefore, it is fair and equitable to give the parties a chance to contest their case on merits. This appeal is accordingly treated as Regular Second Appeal. So far as the Court-fee is concerned, the learned counsel can be directed to affix the requisite of court-fee but since the matter is being remanded to the District Judge and it is only on a technical objection that the appeal preferred by Chain Singh was dismissed by the said Court, it will serve no useful purpose to direct appellants to pay the court-fee as in the circumstances referred to above, the court-free is refundable.