SMT. PREMA BAI Vs. SHOBHAG MAL & ORS.

JUDGEMENT

(1.) THERE are five applications pending for orders. In fact, first application (15440/2009) was filed by the respondent no. 1 praying for dismissal of the appeal itself as having abated on account of failure of the appellants to bring on record legal representatives of appellant no. 1/2 Prakash S/o Suraj Mal, who died on 16.06.2005. Appellants have filed reply thereto on 06.03.2010 (6016/2010). Second application (6015/2010) has been filed for bringing on record legal representatives of deceased appellant no. 1/2. Reply thereto bears inward no. 15331/2010. Third application (6144/2010) has been filed under Order 22 Rule 9 of the CPC for setting aside the abatement. Reply thereto bears inward no. 15327/2010. Fourth application (6145/2010) has been filed under Section 5 of the Limitation Act for condonation of delay in filing substitution application. Reply thereto bears inward no. 15328/2010. All the aforesaid applications have been contested by the opposite party by filing replies thereto. Fifth application (10222/2012) has been filed by the counsel for respondent no. 1 under Order 22 Rule 10 -A of the CPC informing the court that respondent no. 1 has died on 24.01.2011. In the application under Section 5 of the Limitation Act, it is contended that the applicants were not aware of the law and legal procedure and were aware about the pendency of the appeal during lifetime of deceased Prakash. Though, the counsel wrote letters of the dates addressed the deceased Prakash. Since he was not alive and the applicants had already left the native place, the said letters could not reach the applicants. Recently, when applicants visited their native village during Holi festival, they met the counsel and apprised him of the death of Prakash. The counsel then apprised them of the necessity of bringing legal representatives on record in the pending appeal. It is contended that owing to these facts, the application could not be filed in time. Reliance is placed on the judgment of this Court in Deep Chand Jain Vs. Hajariram @ Hajaria -, 2006(2) WLC (Raj.) 762 and argued that therein it has been held if there is delay occurred in filing application under Order 22 Rule 3 CPC for substitution due to ignorance, and if such delay is explained, then liberal view should be taken. It is contended that there is no deliberate or mala -fide intention of the appellants in not moving the application in time and therefore the delay be condoned and abatement be set -aside and the legal representatives of appellant no. 1/2 Prakash be taken on record.

(2.) RESPONDENTS no. 1 contested all the four applications by filing reply. It is contended that appellant no. 1/2 Prakash died as far back as on 16.06.2005 and even the application of this fact with the prayer to dismiss the appeal as having abated was filed by the respondent no. 1 on 22.05.2009. The appellants filed the first application under Order 22 Rule 3 CPC on 06.03.2010 contending that they learnt about pendency of the appeal only when they visited their native place and met there their counsel. The fact is that the application to this effect was already filed by the respondent no. 1 about a year's ago, this plea is therefore palpably false. It is contended that appellant no. 1/2 Prakash passed away on 16.06.2005. Applicant no. 5 Vikas Jain (in second application), one of the proposed legal representatives of appellant no. 1/2 Prakash, is his son. He resides at Uniyara (Tonk). Though his address shown is P. No. 31 -32, near Choudhary Petrol Pump, Bairwa Colony, Sanganer, Jaipur, but in fact he resides with his mother Indira Jain at Uniyara (Tonk). The applicants were very much aware of pendency of the appeal and about the death of their father deceased Prakash. In the cause -title, Prakash S/o Shri Surajmal has been shown as appellant no. 1/2 in the array of appellants and he is shown to be resident of Uniyara, District Tonk. Applicant Vimal Kumar is also shown as son of Surajmal. Description of deceased Prakash has wrongly been typed. Legal representatives of deceased Prakash were fully aware of pendency of the appeal. The application be therefore dismissed.

(3.) NOT much satisfactory explanation has been given for this delay of as long as five years. Reasons given do not inspire confidence. Appeal in so far as appellant no. 1/2 is concerned, abates. However considering that the appeal is being contested by as many as five other appellants i.e. appellants no. 1/1, 1/3, 1/4, 1/5 and 1/6, who are also legal representatives of defendant -appellant no. 1 Smt. Prema Bai, the wife of original defendant Gulab Chand and further that there were two defendants before the trial court and only one of them, namely, Smt. Prema Bai, has filed the present appeal, the appeal does not abate in toto. Before the trial court, there were two defendants and one of them was Smt. Prema Bai, who filed the appeal. So the appeal does not abate in toto. In so far as the appellant no. 1/2 Prakash is concerned, the appeal is dismissed as having abated.