KISHAN LAL Vs. SOHAN LAL

JUDGEMENT

(1.) This misc. appeal has been filed by the appellant under Order 43 Rule 1(k) CPC against the order dated 5.8.2004 passed by Additional District Judge (Fast Track) Kishangarhbas (Alwar) in Civil Suit No. 73/2004 whereby the trial Court refused to set aside the abatement and has dismissed the application of the appellant under Order 22 Rule 4 C.P.C. Brief facts of the case are that the plaintiff-appellant had filed a suit for specific performance of the agreement dated 25.10.1993. The plaintiffs case is that the defendant is his father in law. He had agreed to sale the property described in paras 1 and 2 of the plaint for a consideration of Rs. 1,25,000/- out of which rupees one lac were paid to the defendant and an agreement was executed on 25.10.93 in which it was agreed that the balance amount of Rs. 25,000/- will be paid at the time of registration. During the pendency of the suit, Sohanlal sole defendant had expired. The appellant had engaged one Smt. Sushma Sharma Advocate who had submitted an application under Order 22 Rule 4 C.P.C. read with Section 151 C.P.C. on 10.11.1999 but this application was not available on the record. In such circumstances another application was submitted on 28.10.2002. The notices of this application were issued. The legal representatives of defendant contested the application. The trial Court without holding any enquiry dismissed the application of the appellant under Order 22 Rule 4 CPC read with Order 22 Rule 9 C.P.C. vide order dated 5.8.2004.

(2.) Mr. M.M. Ranjan, Senior Advocate has argued that the trial Court has not appreciated the fact that there was no fault of the appellant. He had engaged a counsel who had informed the appellant that application has been submitted on 10.11.1999. The appellant had disclosed the names of legal representatives. Under these circumstances if the application was not traceable on record then the appellant is not at fault. The trial Court should have been liberal for condoning the delay for substitution of legal representatives. The trial Court has also not appreciated the fact that the abatement could be set aside even on the basis of application dated 28.10.2002. The trial Court has seriously erred in not appreciating the fact that no information under Order 22 Rule 10A C.P.C. was given by the defendant and the limitation has not yet commenced. The application should have been treated in limitation or delay should have been condoned for setting aside the abatement. The trial Court has dismissed the application only on the ground that there was no mention of submission of application on the order sheet. The application was submitted on 10.11.99 and on that day the case as not fixed and next date fixed was 9.9.2000. On the application itself, the Court had made an endorsement to place the application along with the case file. As such there was no question of mentioning it on the order-sheet since the case was not fixed on 10.11.99. Mr. Ranjan has placed reliance on the cases of Sharafat Hussain (dead) through LRs. and Others vs. Mohd. Shafiq and Others, 1996 10 SCC 253, Narmada Shankar vs. Bajranglal and Another, 2005 4 RajLW 2557, Mewar Kalal Nyati Sangh vs. Jaivi and Others, 1999 AIR(Raj) 148, Ram Nath Sao @ Ram Nath Sahu and Others vs. Gobardhan Sao and Others, 2002 AIR(SC) 1201 and Ram Ratan Gupta vs. Sarju Narain and Others,1997 1 WLC(Raj) 597.

(3.) Mr. R.K. Mathur, Sr. Advocate appearing on behalf of Smt. Santra Devi daughter of late Sohan Lal, defendant respondent, Mr. Lokesh Sharma, appearing on behalf of Rama Prasad son of late Sohan Lal, defendant respondent, and M.I. Khan, appearing on behalf of Smt. Sudha Devi, daughter of defendant respondent, have submitted that the order dated 5.8.2004 rejecting the application of the appellant under Order 22 Rule 4 C.P.C. by the trial Court is just and proper and has been passed after considering the fact that the application has been filed by the appellant after a lapse of four years and no explanation has been given for such a delay. Mr. R.K. Mathur has placed reliance on Lanka Venkateshwarlu (dead) by LRs. vs. State of Andhra Pradesh and Others,2001 4 SCC 363.