DHAN SINGH Vs. SHRI BHURA RAM

JUDGEMENT

(1.) The matter comes upon an application (I.A. No.3/22) under Order XXII Rule 3 read with Sec. 151 CPC which was filed on 5/7/2022 seeking to bring on record the legal representatives of the deceased appellant, Dhan Singh, who expired during the pendency of the present appeal on 8/10/2018. In support thereof, the applicants have also filed an application (I.A. No.4/22) under Order XXII Rule 9(2) along with an application under Sec. 5 of the Limitation Act on 6/9/2022 praying for setting aside the abatement of the appeal on account of the delay caused in filing the substitution application.

(2.) The factual matrix of the case is that the original suit was instituted by the respondents-plaintiffs seeking a declaration, which came to be decreed in their favour by the learned trial Court vide judgment and decree dtd. 18/5/2011. Aggrieved by the said judgment and decree, the present appeal was preferred by the appellant-defendant. During pendency of the appeal, the sole appellant- Dhan Singh expired on 8/10/2018. As a consequence thereof, an application (I.A. No.1/22) under Order XXII Rule 10(A) CPC was filed by the respondents-plaintiffs on 12/4/2022 to bring to the notice of the Court about the death of the sole appellant with a prayer that the appeal may be declared as abated. Thereafter, the present applications (I.A. Nos.3/22 and 4/22) have been filed by the legal representatives of the deceased appellant seeking setting aside the abatement of the appeal while condoning the delay in filing the substitution application.

(3.) Learned counsel for the applicants submitted that the delay in filing the substitution application was unintentional and solely due to the negligence of their earlier counsel, who failed to ensure that the application under Order XXII Rule 3 CPC, presented on 3/11/2018 was properly taken on record. It is contended that the applicants acted in good faith and took prompt steps in filing aforementioned application after the death of the sole appellant on 8/10/2018. However, due to omission on the part of previous counsel, the application could not be traced out on record which is reflected as per the office-note dtd. 24/8/2022. It is further submitted that, upon obtaining the No Objection Certificate from the previous counsel in March 2022, the Vakalatnama on behalf of the legal representatives was submitted before the Registry on 28/3/2022, and the present applications were thereafter promptly filed. Further, it is urged that the applicants should not suffer for previous counsel's default and the procedural lapse should not defeat the cause of substantial justice. Thus, it is prayed that the application (I.A. No.3/22) may be allowed while condoning the delay and the abatement of appeal against deceased appellant may be set aside.