JUDGMENT
R.C. Jain, J.
C.M.Nos. 582 & 583/2000
1. These two applications have been
filed by the proposed LRs of the deceased appellant
Raghubir Singh praying for restoration of the
appeal/application under Order 22 Rule 3 CPC dismissed
by the Court on 29-09-1999. It is stated that the
appellant Raghubir Singh dies on 26-01-1999 at the
young age of 38 years and during his life time he
himself was pursuing the present appeal and his wife
and children i.e. proposed LRs had not knowledge about
the pendency of the present proceedings and they were
required to take steps for their substitution in place
of the deceased appellant. Counsel for he appellant
informed the applicants that the matter was listed
before the Court on 10-9-1999 and had been adjourned
to 3-12-1999. However, the matter suddenly appeared
in the list of 20-9-1999 and was dismissed in default.
As the application for restoration was not moved
within time, an application for condensation of delay
has also been made.
2. The application is opposed on behalf
of the respondents mainly on the ground that it
is hopelessly barred by time and is otherwise not
maintainable as the applicants have not come before
this Court with clean hands and have suppressed
material facts. It is also stated that on 15-7-1999
when the Court ordered issue of notice on the
application of the respondent to the counsel who had
filed the present appeal, the counsel appeared on
16-8-1999 and was directed by the Court to inform
within a week the date of death of the appellant and
the matter was adjourned to 10-9-199. On 10-9-1999
the matter was listed before Court for appropriate
orders and adjourned to 20-9-1999 in the presence of
the counsel. That the absence of the
counsel/applicants on 20-9-1999 was without any
sufficient reason or explanation and the
appeal/substitution application are not liable to be
restored.
3. I have heard the learned counsel for
the parties and given my thoughtful considerations to
their submissions. Having regard to the facts and
circumstances of the present case, more particularly
to the fact that the appellant died at a young age,
the possibility of the applicants/legal
representatives herein of not being in the know of the
proceedings pending in this Court cannot be ruled out.
It is true that the Counsel for the appellant became
aware of the death of the appellant and he was
expected to take further steps for substitution of
legal heirs of the deceased appellant and in that view
of the matter he was negligent. However, it is well
settled that a party should not be penalised for the
negligence or lapse of the counsel. This Court is,
therefore, of the considered opinion that it would be
expedient in the interest of justice to restore the
appeal/substitution application. The applications are
allowed subject to payment of Rs.2500/- as costs.
CM No. 576/2000 & 581/2000
4. The applicants, who are wife, son and
daughters of the deceased appellant Ragubir Singh,
seek their substitution in place of the deceased
appellant. The application was not moved within the
prescribed period of limitation and was rather moved
much later and an application under Section 5 of the
Limitation Act has been filed for condensation of delay
in filing the application primarily on the ground that
the appellant had died at a young age and the
applicants were not aware of the present proceedings
and they came to know about the same from the counsel at a later stage and immediately the application was
moved. The applications are supported by affidavit of
Smt. Jaswinder Kaur wife of the deceased appellant.
5. The applications are opposed mainly
on the ground that the application is highly belated
and no sufficient explanation has come forward on the
basis of which the delay in filing the application can
be condoned. It is stated that the applicants have
not come to the Court with clean hands and have rather
suppressed the material facts.
6. The applications have earlier
considered and disposed by this Court vide order dated
11-7-2000 which reads as under:-
“CMs 576/2000, 581/583/2000 & SAO 39/98
The Appellant had died during
the pendency of this appeal. The
Respondent had moved an application
saying that no steps have been taken
for bringing the LRs of the Appellant
on record and as such the appeal
abates.
Counsel for the Appellant was
represented in the application on
16th August, 1999 and 10th September,
1999. Inspite of the application
being filed for abatement of the
appeal, no steps were taken by the
appellant for bringing on record the
LRs of deceased Appellant.
When the matter was taken up
on 20th September, 1999 nobody
appeared on behalf of the Appellant.
The appeal was accordingly dismissed.
Applications have now been
filed for bringing the LRs on record
and for restoration of the appeal as
well as for condensation of delay in
filing these applications.
In view of the facts stated
above, I am not inclined to entertain
these application. The same are
dismissed.”
7. Aggrieved by the said order the
applicants preferred Special Leave Petition (Civil)
No. 1220/2001 before the Hon’ble Supreme Court and it
was allowed by an order dated 12th February, 2001
which reads as under:-
“Leave granted.
Heard learned counsel for
the parties.
The only ground to which we
are impressed, as submitted by the
learned counsel for the appellant is
that the application moved by the
appellant for bringing on record the
LRs to restore the appeal which has
been dismissed as abated that the
High Court has in fact not even
entertained such an application along
with condensation of delay application
and thus not applied its mind.
Having heard learned counsel for the
parties and perusing the impugned
order we find that the High Court
record:
“In view of the facts stated
above, I am not inclined to entertain
these applications the same are
dismissed”.
We feel that the High Court
by doing this has committed error in
not entertaining these applications.
The proper course for the High Court
is to consider these applications and
decide in accordance with Law.
Accordingly, we set aside the
impugned order dated 11th July, 2000
and remand the case back to the High
Court to consider afresh on merits.
The High Court to dispose of the
aforesaid application within eight
weeks from the date of receipt of the
certified copy of this order which
should
be filed and place it before
the Registrar who shall place the
matter before Hon’ble the Chief
Justice for placing the matter before
the appropriate court. With the said
observations the appeal stands
disposed of.”
I have heard the learned counsel for the
parties and have given my thoughtful consideration to
their submissions. The arguments which were raised in
support of and against the application for restoration
of appeal/substitution application are also pressed
for the purpose of these applications as well. There
is no denial of the position that the applications
have not been vigilant enough about their rights and
have not taken timely steps for their substitution
within the prescribed period of limitation but as
noticed above there are certain circumstances which
explain the delay in filing of the application for
substitution within time. There is no dispute with
regard to the date of death of the deceased appellant
as also about the applicants being the only legal
heirs who are entitled to pursue the appeal. The
disposal of the appeal no doubt has been delayed on
account of the delayed action on part of the
applicants for which I am of the considered opinion
that the respondent can be adequately compensated. It
would meet the ends of justice if the delay is
condoned and the application for substitution of LRs
is allowed and the appeal is heard on merits. The
applications are allowed subject to payment Rs. 2500/-
as further costs and the applicants are ordered to be
substituted in place of the deceased appellant
Raghubir Singh. Amended memo of parties be filed
within two weeks.
8. SAO 39/98 be listed on 24th January, 2002.