AJAY KUMAR SONI @ AJAY SONI Vs. ABDUL RASHID

JUDGEMENT

(1.) This appeal is directed against the order dated 17.04.2013 passed by the the District Judge?VI, Hazaribag in Title Appeal No.38 of 2008 whereby while rejecting the petition for substitution, filed under Order XXII Rule 2 & 3 of the Code of Civil Procedure by the proposed legal heirs of appellant No.2 Dwarika Saw, the court recorded its satisfaction that no sufficient cause was made out for the delay in filing the petition after 3 years 2 months and 22 days and the appeal had abated as a whole.

(2.) Learned counsel for the appellants has submitted that the court below has failed to appreciate that the suit was filed by the plaintiffs (respondents herein) for declaring the sale deed No.11691 dated 25.07.2003 as null and void and not binding upon the plaintiff. Relief was also sought for adjudication and declaration that plot No.3131 mentioned in sale deed No.6375 dated 05.12.1951 is wrong and it should be read as Plot No.3121. It is argued that the relief sought for was not indivisible hence, non?substitution of the legal heirs of appellant No.2 within limitation period can not be a ground for abatement of appeal as a whole. Learned counsel, while relying on the decision of the Supreme Court in the case of Sardar Amarjit Singh Kalra Vrs. Pramod Gupta; (2003) 3 SCC 272, has argued that the Supreme Court while elaborately discussing the object of Order XXII has held that it is settled principle that the Civil Procedure Code is handmaid of justice and it should be interpreted liberally for doing substantial justice. It is argued that the appeal can abate against one of the parties and the interest of the parties on record should be protected. It is submitted that the said ratio has been followed and applied by the Supreme Court in the decision of Govt. of Andhra Pradesh & Others Vrs. Pratap Karan & Others reported in 2016(1) JBCJ 461. It contended that in view of the settled legal position the impugned order is fit to be set aside Mr. S.K. Sharma, learned counsel for the respondent has contended that the Supreme Court in the case of Matindu Prakash (deceased) Vrs. Bachan Singh and Others reported in AIR 1977 Supreme Court 2029 has held that whether the appeal abated as a whole so as to entail dismissal of the entire appeal was a matter which could be gone into on perusal of the nature of the pleadings, the relief sought and other materials on record. It is submitted that the court below has considered the pleadings and relief sought for which is explicitly recited in the impugned judgment and as pointed out by the learned counsel for the appellant.

(3.) It is argued that on appreciation of the pleadings and relief sought, the court below has held that both the sale deeds are closely linked and the reliefs are not divisible and rightly dismissed the entire appeal. It is argued that there was no satisfactory explanation nor any sufficient cause was made out for the delay in filing the substitution petition nor any application for condonation of delay or for setting aside the abatement was filed by the appellants/petitioners. That the callous attitude and negligent conduct of the appellant has been taken note of by the court below which took a strict view in the matter and rightly held that the appeal had abated as a whole. Learned counsel has relied on the decision in the case of Nehra Chits (P) Ltd. Vrs. B. Ramachandra Reddy and Others reported in AIR 2003 Andhra Pradesh 486 for buttressing his argument.