KAMROO Vs. DHAMINI

JUDGEMENT

(1.) THE present appeal filed under Order XLIII Rule 1(k) of C.P.C. is directed against the order dt. 30.03.2009 passed by the District Judge, Sawaimadhopur, (hereinafter referred to as "the appellate Court"), whereby the appellate Court has dismissed the application of the appellants -defendants filed under Order XXII Rule 4 of C.P.C., and has dismissed the appeal as having been abated. In the instant case, it appears that the original respondent -plaintiff i.e. Tayaba had filed the suit for declaration, and for permanent injunction, which was decreed by the trial Court on 12.12.2000. Being aggrieved by the said judgment & decree, the appellants -defendants had filed the appeal before the appellate Court. During the pendency of the appeal, the original respondent -plaintiff Tayaba had died, for which the learned counsel for the appellants was informed on 15.10.2003. Thereafter, the appellants filed an application before the appellate Court on 24.01.2005 for bringing on record the legal heirs of the original respondent -plaintiff. The said application having not been filed within the prescribed period of limitation, and the appeal having abated, the appellate Court vide the impugned order had dismissed the said application filed by the appellants under Order XXII Rule 4 of C.P.C. Being aggrieved by the said order, the present appeal has been filed.

(2.) IT has been sought to be submitted by the learned counsel Mr. Tarun Jain for the appellants that the counsel appearing for the appellants before the appellate Court did not inform the appellants, and even otherwise the appellants being illiterate persons were not aware about the intricacy of law, and therefore, did not file the application under Order XXII Rule 4 within the prescribed period of limitation. According to him, the said application was required to be allowed by the appellate Court in the interest of Justice. The Court does not find any substance in the said submissions made by the learned counsel for the appellants. It is not disputed that the counsel appearing for the appellants was informed about the death of the original respondent -plaintiff on 15.10.2003, hence it was the duty of the counsel appearing for the appellants to inform the appellants about the said death. Though, according to the appellants, they were not informed by their lawyers, there is nothing on record to suggest that the counsel appearing for the appellants had not informed them about the death of the said original respondent -plaintiff. Thereafter, the application was filed on 24.01.2005 i.e. almost after two and a half years of such information given to the learned counsel for the appellants. It also appears that the appellants had neither filed an application seeking condonation of delay showing sufficient cause, nor had filed any application for setting aside of the abatement. Under the circumstances, the appellate Court has dismissed the appeal on the ground of having been abated, and on the ground that no sufficient cause for condonation of delay was made out by the appellants. The Court does not find any illegality or infirmity in the impugned order passed by the appellate Court. In that view of the matter, the present appeal deserves to be dismissed, and is accordingly dismissed.