S^^^^^^^^^^^ss^^^^^^S^^^S^%wa| l^^^^%^^i^^^l^ff^^^y^^?j?l^^^^li^'^''j^^^^ ..^^^^^^ HIGH GOURT Off GHHAmSGARH. BILASPUg WKIT PETHION (227)Wo. t501 OF 2008 Raoibagas Sahu aadofhers Versus Rajeev Grali Nirmaa Sainiti Maiyadit audaaofb.er O RD E R m Postfor^ -8-2009 Sd/- T<AC.A8arwal Judge • 1 ir- ^ %5 li A v-i~ Raiabagas Sahu, aged about 50 3-ears, S/o Shri Anandi Sahu, R/o viUage Piu-aiiia, Raipur, Talisil aad District Raipur (CG)- Respondeat Mo. 3 Maliesh KuiEar Agrawal, aged about 38 years Respondeat No. 5 Naad Kisbore Agrawal, aged about 40 vears No. 2 and 3 bofh son of Shri Radhesliyam Agrawal, aud both R/o 15/480, CivU Line, Raipiu', Tahsil aad Distncf Raipur (CG) Nand Kum.ar Sahu, aged about 33 yeai's 5. Kishore Sahu, aged about 29 years No. 4 aad 5 both S/o Shri Ramratan Sahu, R/o E-8, Rajeev Nagar, Raipiir, TaIisU aud District Raipur (CG) (Ramouti. Bai- Respondent No. l and Khorbaliara Saliu- Respondent No. 2 have not beeil inade a party in fhe iastaiit petition as both Iiave expired even prior to passing of fhe order under challenge dated 25-10-2007) Rajeev Grah. Nirmaa Samiti Maiyadit, through its President Dr. Choifhram Bajaj, Katora Talab, Raipur (CG) 9. State of Madhya Pi^idesh prcsent State of Chhatdsgarh, through Collector, Raipur (CG) rt 3?^? Shii Suinesli Bajaj, Advocates for fhe petitioners. Shri B.P. Gupta, Advocate, &r fhe respondeat No Ku. Sangeeta Mishra, Paael L.aw\'er, for the State. ^6 2. 1. 12. -S- Th UI. IV. V. VI. The instant petitioa is dii-ected agaiast fhe order dated 25- 10-2007 passed by learued IIIrd Additioiial Distriet Judge, RaipurmM.C.A. No, 16/2005. Brieffacts ofthe case ai-e as under:- The plahitiff. / respoadent No. 1 hereia iiistitated a suit &r specific performance of coiltract apart froza o&er reiiefs claimed agaiast fhs petitioners, which was registei-ed as C.S. No. 11A/94. Ou 17-4-1999, due to absence of tlie plamtiff, fhe suit was disinissed in default. Oa 13-5-1999, an appUcatioa under Oiuer 9 Rule 9 of C.P.C. was preferred by the plaiiitiff unpleading Ramauti Bai as nou-applicant. The trial Court requisitioned the record of origiaal suit aad suiiunons were issued agaiast said Rainauti Bai. On 31-8-1999 notices sent to Rainauti Baiwere retui-aed unseryed witli the endorsement of her cleatfa. The plairitiff took tiiue for takiag further action in the aiatter. On 30-11-1999, fhe plainfiff moved an applicatioii under Section 151 of C.P.C. witii a prayer to bring legal representatives of dece&sed Ramauti Bai aad other defendants/ petitioners on record. The said application was allowed by fhe trial Coiu-t aad notices were issued, After receipt of the notice, the petitioaers filed reply to fhe applicatioa under Order 9 Rule 9 of C.P.C. filed by the plaintiif. Parties led evidence. Leamed trial Court vide its order dated 2-2-2005 dismissed the application. // SSSes!*i». '^ ^ vii. The plamtiff feeling aggrieved by the oi-der dated 2-2- 2005, preferred axi appeal luider Order 43 Rule l(c) of C.P.C. before fhe appellate Court. The appeal was registered as M.C.A. No. 16/2005. vni. Afte-r receipt of notice, the petitioners Iierera. filed a cross- objection imder Onlcr 41 Rule 22 ofC.P.C. on 20-4-2005. ix. Leamed appetlate Court vide its order dated 25-10-2007 aUowed fhe appeal preferred by fhe plaintiff. Hence t.his petition. 3. Sllri Suiaesh Bajaj, learaed couiisel for the petitioaers woiild subinit that fhe order impugned is contraiy to law for fh.e foUowuig reasons;- i. The application uiider Order 9 RiUe 9 of C.P.C. was filed agaiast Ramaiiti Bai only whereas fhe petitioners were im.pleatled ill the appHcation only on 30-11-1999 and, therefore, fhe apptication filed iinder Order 9 Riile 9 of C.P.C. would be deemed to be ffled cn 30-11-1999 in terms ofOrder 1 Rule 10(5) ofC.P.C. read^vith Section 21 of the Liirutation Act, which is time barred as fhe Umitation for fiting applicatiou uader Order 9 Rule 9 of C.P.C. is 30 days from the date oforder under Article 122 of fhe Limitati.on Act. Suice no appUcation for condonation of delay has beeu filed by fhe plamtiff nor the delay was condoned aad, fherefore, fhe order passed by fhe appeBate court is without jurisdictioa. ii. Even if it is considered that fhe plamtiff gained laiowledge ofdeath of Ramauti Bai on 31-8-1999, then also her legai represeutatives ouglit to have been brought on record 'within 90 days in. view of Section 120 of the LimitatioD. Act. However, this was done only on 30-11-1999 which is 9 Ist day aad, fherefore, the proceediiig itself is to abate afler expiry of 90th day ia terms uuder Order 22 Rule 4 (3) ofC.P.C. 27 •^ t— ui. The order passed by the appeUate court is contrar;,' to law inasDiuch as the cross-objection prcferred by the petitioaers hasnot been decided. . iv. The plauitiff utteriy failed to deinonstrate sufEcient cause for his non-appearance when the suit is called on for Iiearm.g. Therefore, even on inerit, fhe order passed by th.e appeUate coiut is contrary to law. 4. Per contra, Shri B.P. Gupta, leamed Oounsel appeaiiag for the respondent No. 1 supported the order passed by the appeUate coiu-t acd subruitted that the initial appUcation under Order 9 Rule 9 of G.P.C, was filed within tiine i.e. on l-3-5-1999. He wouldl fiu-ther subiu.it fhat fhe delay ia filing the application even otherR-ise can be condoned even without fiting the appUcatioii. He would also subiait fhat fhis Court should not interfere ia the order passed by fhe appellate Court ia exercise of extra ordinary jurisdictioa irader Article 227 ofthe Constitution oflndia. 5. I have gone carcfiilly fhrough the inaterial placed on record. 6. So far as the grouiid taken by the petitioners ineiitioned ui para 3(ii} of fhis orier is concemed, iil si circum.stari.ces, the Suprenie Court ia the case ofState of Kerala -v- Sridevi aisd others reported in (2009) SCC 168, in. para 5 and 6 obseived thus:- "5. There was no need to invoke any of ihe Rules in Order 22 as ihere was no question of abatement since death of the sole respondent had taken p'ace only after thejudgmeni was delivered by fhe Sub-Court. The error which had crept in is that the appea] was fi.led against a person who was not 'then aV.ve. In such a case Order 1 Rule 10 hcis to be invoked. There is no spedfied period of Inrdta'lion for nvctking an applicaiion in the -% qforescdd Rule cmd hence if, at all any application is necessary, the same cauld be filed within ihree years under Artide 137 of the Lim.itation Act In the present case, the application isas filed much ahead of-that tnne. I-t wasfiled on 22-5-93. 6. We are satisfied ihat the ivrong person was joined in the appeal as fhe Goveinment kneiv aboui the death of the respondent only when the noiioe zaas retumed with the endorseinent thai the said person. is no more. Of course, leamed counsel for ihe respoizdent contended that the Govemment had opportunify io conie (o knozo of iitcd aspecf earlier. li may be iJvxt. orte of ihe officers of ihe Govemmen't vjould have com.e to knoir of that fact. Buf we are not disposed to a'sdil ihe Govenim.enf with the knowledge of his death solely on the ground thal one individual govem.ment sejvard had such krwwledge. When public inieresi is involved a. bilaleral attitude in the maUer can be adopted. Therefore, to implead fhe legal representatives of deceased Raniauti Bai in fhe facts and circuiastaiices of the case, the con-ect provision is Onler 1 Riile 10 of C.P.C. and not Order 22 ofC.P.C. 7. As far as whefher or not fhe plaiatiff has assigiied suflicient cause for his non-appearaiice when fhe svdt was caUed on for hearing, is coacei-ned, the same is essentiaUy a fiiiding of fact. More over, in view of the setded position of law, as the provision of Oider 9 are penal in. nature, therefore, whiie deciding an application under Order 9 Rule 9 of C.P.C., approach of the court should be liberal to do substantial justice between the parties. 8. As far as grounds 3(i) and 3(ui) mentioned m this order are concerued, neither fhe trial Court nor the appellate ^'3^p^^^^^^^^^^^^^B?^! ^, '•»•<<' Court has considered fhis aspect of the inatter. More over, fhe appeUate Court, iit fact, decluied to corisider cross-objection preferrcd by fhe petitioners under Otder 41 Rule 22 of C.P.C. aad thus, the trial Court as weU as the appeUate Court s oiders are iUegal and perverse on fhis count aad ia my opinion, needs interfeicnGe of fhis Court. 9. Therefore, the order impugned passed by the appeUate Court is quashed and the indtter is reuiitted back to the first appeUate Court to pass order ia fhe appeal in accordaiice witli. law affer affording full opportunity of hearing to both the paTties afler considGEin.g the cross- objectipD. preferred by ffiie petitioners under Order 41 Rule 22 ofC.P.C. in the lightofiKisorder. 10. Tlie appeal is allowed. 11. However, no order as to costs. • Sd/- N.K.Agarwal Judge h.