SAHNI DEVI Vs. PIARO DEVI

JUDGEMENT

(1.) This application under Order 1 Rule 10 read with Order 22 Rule 3 and 9 and Section 151 of the Code of Civil Procedure read with Section 5 of the Limitation Act has been preferred by the applicants proposed L.Rs. of one of the appellants, namely, Sahni Devi who is stated to have died during the pendency of the appeal on 12.12.2000. Brief facts leading to the filing of the present application are the deceased Sahni Devi and Phulan Devi, defendants -appellants have preferred RSA No. 102 of 1995 against the judgment and decree dated 30.1.1995 passed by the learned District Judge, Hamirpur. The appeal was admitted on 28.4.1995. Another appeal, i.e. RSA No. 122 of 1995 has been preferred against the same judgment and decree by the respondent. The said appeal was admitted on 1.5.1995 and was ordered to be listed alongwith RSA No. 102 of 1995. During the pendency of the appeals, Smt. Sahni Devi one of the appellants in RSA No. 102 of 1995 and one of the respondent in RSA No. 122 of 1995 admittedly died on 12.12.2000. The respondent non applicant herein, filed CMP (M) No. 68 of 2001 in RSA No. 122 of 1995 for bringing on record the L.Rs. of deceased Sahni Devi, which not being contentions was allowed by the learned Registrar General of this Court in exercise of delegated powers of this Court vide order dated 18.6.2001 thereby impleading the L.Rs. of the deceased including Ram Lai as respondents in RSA No. 122 of 1995. On 2.5.2002, said Ram Lai also died. The non -applicant, therefore, filed CMP (M) No. 360 of 2002 in RSA No. 122 of 1995 for bringing on record the L.Rs. of said Ram Lai. The said application was also allowed and thus applicants, no. 1 and 2 herein, were also ordered to be brought on record, as the respondents, in place of said Ram Lal. The applicants or the appellant herein, however, did not take any step to (bring on record the legal representatives of deceased Sahni Devi and Ram Lal at the appropriate time but moved the present application on 5.8.2004 for condonation of delay in making the application setting aside the abatement, if any and to bring them on record in place of deceased Sahni Devi and Ram Lal.

(2.) It has been averred in the application that said Ram Lai was perusing the litigation throughout. Therefore, the applicants and the appellant were not aware of the exact position of the appeal. In the first week of July, 2004 applicant Soni Thakur came to Shimla to contact the lawyer and acquired knowledge about the filing of the appeal by appellant Phulan Devi and deceased Sahni Devi otherwise the applicants were under the impression that the respondent alone has preferred the appeal. It is also claimed that, the applicants and appellant herein did not know much about the procedure etc. hence this application.

(3.) The respondent -non -applicant resisted the application claiming that in view of the applications having been filed by the non -applicant in RSA No. 122 of 1995, the applicants were fully aware of the litigation and the orders passed therein. Therefore, from the acts and conduct of the applicants, it is clear that they had been grossly negligent in pursuing their appeal and thus the application deserves to be dismissed.