1 S.B.CIVIL MISC.APPEAL NO.2530/2007 State Bank of Bikaner & Jaipur v. Shri Ramkaran & Ors. Date of Order :: 12th March, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Jagdish Vyas, for the appellant. Mr. D.L.Mothssara, for the respondents. .... The Additional District Judge No.1, Hanumangarh by order dated 21.8.2003 rejected the application preferred by the plaintiff petitioner seeking an order to set the dismissal of suit aside and also an application seeking condonation of delay in filing the application as per the provisions of Order IX Rule 9 and under Order XXII Rule 4 Code of Civil Procedure. Noticeable facts of the case are that a suit for recovery preferred by the appellant plaintiff bank came to be dismissed on 16.9.2000 as per the provisions of Order IX Rule 8 Code of Civil Procedure. The non-applicants in response to the notice received for the applications referred above urged before the trial court that their father defendant Ramlal died on 31.8.1997 and this fact was within the knowledge of bank authorities, but no effort was made to bring his legal representatives on record, thus, the suit stood 2 abated. The plaintiff appellant then submitted an application to set aside the abatement and also to take legal representatives of Late Shri Ramlal on record. The application being barred by limitation was also supported by an application under Section 5 of the Limitation Act, 1877. The application aforesaid came to be rejected by the trial court on following grounds:- (1) after framing of issues on 16.12.1997, despite several opportunities, no evidence was produced by the plaintiff bank and on 16.9.2000 plaintiff failed to appear before the court without having sufficient cause; (2) since 16.9.2000 the plaintiff was having knowledge about death of Shri Ramlal, even an information in this regard was given by the sons of Shri Ramlal on 11.12.2000 but the plaintiff submitted application as per the provisions of Order XXII Rule 4 and Order XXII Rule 9 Code of Civil Procedure at a belated stage without adequate reasons and that establishes carelessness on part of the bank officials, thus, no sufficient cause exists to condone delay. The contention of counsel for the appellant while assailing validity of the order aforesaid is 3 that on 16.9.2000 learned counsel for the bank was busy in some other case and, therefore, he failed to appear before the court when the case was called, however, on knowing about dismissal of suit in default, he preferred an application for restoration on the same day, as such the non-appearance was bonafide. It is also asserted by counsel for the appellant that no adequate information was available with the bank officials enabling them to move an application under Order XXII Rule 4 and the application under Order XXII Rule 9 Code of Civil Procedure. Learned counsel for the respondents non- applicants, while contesting the arguments advanced by counsel for the appellant, urged that the bank officials were aware about death of Shri Ramlal as a latter was addressed by them on 18.2.2000 referring him as “Late”. It is also asserted by counsel for the respondents non-applicants that the slackness on part of the bank officials is apparent and there is no sufficient cause to accept the applications preferred under Order XXII Rule 4 Code of Civil Procedure and the application for seeking an order to set aside the order dismissing the suit. I have considered the arguments advanced and also the order impugned. 4 It is not in dispute that an application for restoration of the suit was preferred on 16.9.2000 itself with a specific averment that counsel for the plaintiff was busy in some other matter in some other court. When the application was filed on the same day, the appropriate course before the trial court was to restore the suit. I do not find any reason to disbelieve the statement given by lawyer that he was busy in some other court when the case was called. So far as the applications preferred under Order XXII Rule 9 and Order XXII Rule 4 Code of Civil Procedure are concerned, it is no doubt that the bank officials were quite careless and no adequate step was taken by them for bringing legal representatives of defendant on record expeditiously. The officials of the bank, specially the officer-in-charge of the case, should have taken necessary steps immediately on knowing about death of defendant Ramlal. I am in agreement with counsel for the non-applicant respondents that the slackness on part of the bank officials is apparent, however, looking to the fact that the plaintiff is a public sector bank and rejection of the suit without adjudication on merits will ultimately effect the public property adversely. The trial court, in such circumstances, should have accepted the application under Order XXII Rule 9 and the application under Order XXII Rule 4 Code of Civil 5 Procedure by adequately protecting rights of the non- applicants. Looking to the facts and circumstances of the case and for the reasons stated above, I am of the view that acceptance of the applications under Order XXII Rule 9 and Order XXII Rule 4 Code of Civil Procedure is in interest of justice. Accordingly, the order impugned is quashed, the application under Order XXII Rule 9 Code of Civil Procedure is accepted, the order of abatement of the suit is set aside, and the application for restoration of the suit is also allowed by setting aside the order dated 16.9.2000. the application under Order XII Rule 4 Code of Civil Procedure also stands accepted and an order is made to take legal representatives of defendant Shri Ramlal on record as defendants subject to the condition that the plaintiff bank make payment of cost to the non- applicant respondents in a tune of Rs.5000/-. It is also made clear that the bank shall not be entitled to claim any interest for the period commencing from the date of death of defendant Shri Ramlal to the first date before the trial court, after acceptance of this appeal. The appeal is allowed in terms above. ( GOVIND MATHUR ),J. Kkm/ps.