RAM RICHPAL Vs. MITHAN LAL

JUDGEMENT

(1.) This revision petition is directed against the order dated 29.1.2001 passed by Civil Judge (Jr. Division), Ajmer in Civil Suit No. 8/1993 whereby the application of the plaintiff-respondent under Order 22, Rule 9 of the Code of Civil Procedure (in short 'the Code') for setting aside the abatement of the suit has been accepted.

(2.) Brief racts of the case are that a suit for redemption of mortgage was pending against late Shri Mithan Lal-defendant who died on 30.4.1997. Counsel for the defendant informed on 22.1.1998 to the Court as per the provisions of Order 22, Rule 10-A of the Code about the death of the defendant and thereafter an application for setting aside the abatement of the suit under Order 22, Rule 9 of the Code of Civil Procedure along with application u/s. 5 of the Limitation Act was filed on 17.11.2000. Learned Civil Judge (Jr. Division) while holding that the plaintiff was prevented by sufficient cause for not substituting the legal representatives of the deceased-defendant-Mithan Lal in time allowed the application and set aside the abatement of the suit.

(3.) Learned counsel appearing for the petitioner-defendant submitted that counsel of the defendant informed to. the Court on 20.1.1998 about the death of Mithan Lal but for more than two years plaintiff-non-petitioner did not submit any application for setting aside the abatement and no satisfactory reason has been shown about such a long delay in making the application in : time. It was also submitted that the plaintiff was represented by senior counsels Shri S.S. Deedwania, Kapoor Chand Jain, Ashok Pajoria and Subhash Rajoria Advocates, hence he could have submitted his application through any of these Advocates, thus the death of one Advocate Shri Ashok Rajoria cannot be said to be a reasonable cause for not filing the application of setting aside the abatement of the suit in time. In support of the contentions, he relied on the judgment delivered in the case of State of Gujarat v. Sayed Mohd Baquir El Edross reported in AIR 1981 Supreme Court 1921, wherein under the facts and circumstances of that case their Lordships held that no sufficient cause for the condonation of delay in filing the appeal is made out from any material on the record. It was also held that strong case on merits is not a good ground for condonation of delay. In the case of Banshi @ Banshidhar Agarwal v. Laxmi Narain reported in RLW 1994 (1) page 212, while dealing with the delay in filing the appeal u/s. 5 of the Limitation Act it was held that client to be vigilant and cannot get away by saying that the counsel did not inform about the order of the Court. In the case of Gouri Shankar and Ors. v. Satya Narain reported in 1992(2) WLC (Raj.) page 273, the defendant was found guilty of latches, thus, applications under Order 9, Rule 13 of the Code was dismissed considering the facts and circumstances of that case.