HARGOPAL SINGH Vs. PREM SAGAR

JUDGEMENT

(1.) Order passed in Civil Misc. Appeal No.5 of 2008/06 is under challenge before this Court in this petition. As a matter of fact, learned lower Court has affirmed an order passed by the learned Civil Judge (Senior Division), Ghumarwin, District Bilaspur, in an application on 21.9.2005 under Order 22, Rule 4 of the Code of Civil Procedure, whereby the application was dismissed and the prayer made for substitution of the legal representative of deceased defendant No.1 Sant Ram, was declined on the ground that neither the application has been filed within the period of limitation nor accompanied by an application under Order 22, Rule 9 of the Code of Civil Procedure. Also that on the expiry of the period of 90 days, prescribed for substitution of legal representative of the deceased defendant No.1 Sant Ram abatement of the suit was automatic and that the application for substitution of his legal representative could have not been entertained without any prayer for condonation of delay as occurred in taking consequently steps and setting aside the abatement of the suit.

(2.) This Court finds no illegality or infirmity with the order under challenge as Hon'ble Apex Court in (2002) 3 Supreme Court Cases 195, titled Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others has held that in an application filed for substitution of legal representative of deceased party and setting aside the abatement of the appeal the party seeking such relief must how sufficient cause for seeking the condonation of delay so occurred. No doubt the Apex Court in AIR 2004 Supreme Court 4346 titled K. Rudrappa v. Shivappa has held that even a simple application filed under Order 22, Rule 4 of the Code of Civil Procedure can also be entertained in order to decide the question of the abatement of proceedings and substitution of legal representative of the deceased party, however, in the case before Hon'ble the Apex Court the facts were different from the present one before this Court.

(3.) The perusal of the application under Order 22, Rule 4 of the Code of Civil Procedure (Annexure P-3) amply demonstrates that what to speak of the sufficient cause even the factual aspect such as the date of death of deceased defendant No.1 Sant Ram, what prevented the plaintiff from taking consequential steps well within the period of limitation is also missing. Therefore, on merits it would not be appropriate nor in the ends of justice to set aside the abatement of the suit and allow the substitution of legal representative of deceased defendant No.1 Sant Ram in modification of the order passed by learned trial Court and affirmed by the learned Appellate Court, however, this Court feel that the impugned order is not only harsh, but oppressive also as the suit itself stand disposed of thereby without adjudication of dispute on merits.