BIJA Vs. RAJA RAM

JUDGEMENT

(1.) THERE are two applications, one under Order 22 Rule 3 C.P.C. for bringing on record the Jegal representatives of sole Appellant Bija son of Sammu and another Under Section 5 of the Limitation Act, for condonation of delay in filing the application under Order 22 Rule 3 C.P.C.

(2.) BIJA son of Sammu filed civil suit No. 449 on 22.7.1967, for declaration to the effect that he has become full and absolute owner in possession of the suit land mentioned in the schedule attached with the plaint by lapse of time with a consequential relief by way of permanent injunction directing the defendants to vacate the possession of the suit property. The suit was contested by the defendants taking various pleas. After full trial, the suit was decreed with costs in favour of Bija plaintiff and he was declared to be the owner of the suit property. Consequently, the defendants were directed to vacate the possession vide judgment and decree dated 6.1.1975. The defendants feeling aggrieved by the judgment and decree of the trial Court filed Civil Appeal No. 316/13 of 1978 before the Additional District Judge, Karnal. The appeal was accepted judgment and decree of the trial court were set aside and the suit of Bija Plaintiff-respondent was dismissed living the parties to bear their own costs.

(3.) ON notice, defendant-respondents filed reply in the form of affidavit of Raja Ram son of Sadhu Ram, resident of village Kakehri Tehsil Guhla, Distt. Kaithal, contesting the claim of the applicants. It was set out in the affidavit that the application Under Section 5 of the Act and under Order 22 Rule 3 C.P.C. are not maintainable after the expiry of 150 days from the date of death of Bija who died on 25.7.88 and appeal stood abated by operation of law. It is further pleaded that no application for setting aside of abatement was filed and therefore, the mere application for bringing on record the legal representatives of Bija deceased-appellant is not maintainable. According to the respondents, until and unless the abetment of the appeal is set aside and it is restored, the application for bringing on record the legal representatives of the deceased appellant, is not maintainable. On merits, it was pleaded that the legal representatives of the deceased were living with him at the time of his death and were having full knowledge of the pendency of the appeal and prayed for dismissal of the applications. At the request of the learned counsel for the applicants, case was adjourned a number of times. Mr. Ashish Kapoor, Advocate, put in appearance and again requested for adjournment. Finding no reasonably sufficient ground to adjourn the case, the prayer was declined. Learned counsel for applicants did not address any arguments. However, learned counsel for the respondents was heard and record was perused with his assistance.