ORDER
S.V. Maruthi, J.
1. This C.M.P. is filed on 21-4-1994 to bring on record the Legal Representatives of the sole appellant who died on 26-1-1994. However, for some reason or the other the C.M.P. was not posted. Thereafter, the appeal came up for hearing before me and the same was allowed with costs on 25-9-1995. Though the appeal was allowed on 25-9-1995 either due to inadvertence or otherwise CMP No. 8332/94 filed on 21-4-1994 was not ordered. Hence, the present petition is brought before this Court for purpose of ordering.
2. The Counsel for the petitioner brought to my notice the judgment of the Supreme Court in Jang Singh v. Brij Lal, wherein it was held that:
“There is no higher principle for the guidance of the Court than the one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: “Actus curiae neminem gmvabit.”
Counsel submitted that an act of Court shall prejudice no man relying on the following maxim “Actus Curiae ‘Neminem Gravabit” – An act of the Court shall prejudice no man.
“This maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law (b). In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court or for judgment from the intricacy of the question, the party ought not be prejudiced bythat delay, but should be allowed to enter up this judgment retrospectively to meet the justice of the case (c) and, therefore, if one party to an action dies during a Curia advisari vult, judgment may be entered Nunc pro tune, for the delay is the act of the Court, for which neither party should suffer (d).
“It may be here mentioned that the power of the Court to enter judgment nunc pro tune does not depend upon statute (f). It is a power at common law, and, in accordance with the ancient practice of the Court is adopted in order to prevent prejudice to a suitor from delay occasioned by the act of the Court (g).”
(Refer Broom’s Legal Maxims – 10th Edition Pages 73 and 74)
He also relied on the definition of ‘Nunc pro tune’ given in Black’s Law Dictionary and Wharton’s Law Lexicon. In Black’s Law Dictionary-Nwnc pro tune: This is a phrase applied to acts allowed to be done after the time when they should be done, with retrospective effect i.e., with the same effect as is regularly done. Omitted to be done through inadvertence or mistake. Wharton’s Law Lexicon – Nunc pro tuna- a proceeding taken now for then i.e., the proper time when it should have been taken.
3. The Counsel submitted that though the petition to bring on record the Legal Representatives was filed in time due to inadvertence it was not ordered either at the time it was expected to be ordered or at the time of disposal and hence in view of the maxim “Nunc pro tune” it should be ordered to come into effect from the date of the judgment.
4. There is no dispute that petition to bring on record the legal representatives was filed within time and it was not posted for orders for the reasons not known. It was not brought to the notice of the Court and the Court also not noticed the petition pending due to inadvertence or mistake at the time of delivery of the judgment in the appeal. Therefore, as pointed out by the Supreme Court there is no higher principle for the guidance of this Court than one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of this Court, he should be restored to the position he would have occupied but for the mistake. An act of the Court shall prejudice no man. Since the appellant died during the pendency of the appeal and the petition to bring on record was filed within the prescribed period, judgment can be entered Nunc pro tune for the delay is the act of Court and he should not suffer. The power of the Court to bring on record the Legal Representatives with effect from the date of judgment does not depend upon statute and is intended to prevent prejudice to a suitor from a delay occasioned by the act of the Court.
5. Accordingly, though the Misc. Petition was filed in time and though the appeal was allowed on 25-9-1995 due to inadvertence, the Misc. Petition was not ordered. For the mistake committed by the Court, the party should not suffer. Therefore, the L.R. Petition is ordered with effect from the date of judgment i.e., 25-9-1995.