IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP(M) Nos. 865 & 866 of 2009 and R.S.A. No. 91 of 2000. Reserved on 22.11.2010. Decided on : 23.11.2010. Ranbir Singh and others …Appellants. Versus Parduman Singh and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellants : Mr. B.K.Malhotra, Advocate. For the respondents : Mr. Shrawan Dogra, Advocate. Kuldip Singh , Judge The appellants were defendants and have filed this appeal against judgment, decree dated 30.9.1999 passed by learned District Judge, Mandi in Civil Appeal No. 10 of 1995 affirming judgment, decree dated 29.12.1994 passed by learned Sub Judge, 1st Class, Sundernagar in Civil Suit No. 180 of 1990. 2. The facts, in brief, are that the respondents had filed a suit that respondents and Narain Singh deceased defendant No.1 were joint owners of land measuring 332.97 sq.meters comprised in Khasra No. 1606 vide jamabandi 1984-85, mauja Bhojpur, Tehsil Sundernagar, District mandi, H.P. It is not necessary to give further details pleaded in the plaint or in the written statement in view of question of abatement of appeal raised by respondents. It is suffice 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 to add that the appellants contested the suit by taking preliminary objections of suppression of material facts. The respondents have not challenged the Will of Smt. Bhajyali. The suit has not been filed for declaration, hence the suit is not maintainable. However, on merits, legal character of the suit land being joint land was admitted. The appellants have prayed for dismissal of the suit. The replication was filed by respondents . The learned trial Court decreed the suit on 29.12.1994 and restrained the appellants from raising any construction over the suit land and changing its nature in any manner whatsoever till the land is actually partitioned by metes and bounds. The prayer for demolition of construction by way of mandatory injunction was declined. In appeal, learned District Judge on 30.9.1999 has affirmed the judgment, decree dated 29.12.1994, hence the second appeal which has been admitted. 3. The learned counsel for the appellants has submitted that respondent No.2 Basant Singh has died on 16.3.2003. The names and addresses of the legal representatives of respondent No.2 Basant Singh have been given in CMP(M) No. 865 of 2009. It has been submitted that the application for bringing on record the legal representatives of respondent No.2 was not filed within the time for the reasons that the appellants were not well versed with the intricacies of procedural law. They were under bonafide belief that since respondent No.2 had died, therefore, it was for the respondents to move appropriate application in that behalf. Due to this belief, the appellants did not inform their counsel about the death of respondent No.2. On 16.6.2009 the learned counsel for the respondents for the 3 first time had revealed about the death of respondent No.2 on 16.3.2003. On this counsel for the appellants contacted the appellant No.2 and told him to bring the details of legal representatives of respondent No.2, which were procured on 5.7.2009 and appellant No.1 Ranbir Singh came to Shimla on 6.7.2009 and the application was filed on 7.7.2009 without any further delay along with an application under Section 5 of the Limitation Act. The two applications were registered as CMP(M) No. 641 of 2009 and CMP(M) No. 642 of 2009. On 1.9.2009 it was noticed that the name of respondent No.2 had been wrongly typed as Praduman Singh, therefore, the said two applications were withdrawn with liberty to file afresh. The appellants thereafter filed CMP(M) No. 865 of 2009 for setting aside abatement and for bringing on record the legal representatives of respondent No.2 and CMP(M) No. 866 of 2009 under Section 5 of the Limitation Act for condonation of delay. 4. These applications have been contested by filing the replies. It has been stated that the application for setting aside abatement and bringing on record legal representatives of respondent No.2 is hopelessly time barred and in the application for condonation of delay, no sufficient cause has been shown. It has been stated that respondent No.2 Basant Singh has died on 16.3.2003 who was none- else but close relative of appellants. The appellants had joined the death ceremonies of respondent No.2 since the day one. The appellants and respondent No.2 used to live in same house (Chowki) in village Kharsi, Tehsil Sundernagar, Distt. Mandi. The appellants were aware about the procedural law, earlier on the death of appellant No.1 Narain Singh an application was filed through the 4 same counsel for bringing on record the legal representatives of appellant No.1 alongwith an application for condonation of delay. The appellants have filed the present applications after about 6 ½ years from the date of death of respondent No.2. The appellants were careless. It is not possible to believe that the appellants had not contacted their counsel during this period of 6 ½ years to know the fate of their appeal. The respondents have prayed for dismissal of the applications. The appellants have filed rejoinders and reiterated their stand. 5. The learned counsel for the appellants has submitted that earlier Narain Singh had died on 30.7.2002 and an application for setting aside abatement and for bringing on record his daughters Vidya Devi and Tara Devi was filed along with an application for condonation of delay. Both the applications were filed on the affidavit of Ranbir Singh appellant No.2. It has been submitted that the appellants were under bonafide belief that since respondent No.2 has died therefore, steps will be taken by other respondents for bringing on record legal representatives of respondent No.2. This impression the appellants have gathered from the fact that when appellant No.1 had died, at that time the appellant No.2 had taken the steps for bringing on record the legal representatives of appellant No.1. It has been submitted that the appeal was listed in the court on 18.6.2009 when counsel for respondent No.2 had stated that respondent No.2 had died on 16.3.2003. The learned counsel for the appellants has submitted that immediately thereafter steps were taken for filing appropriate applications. The appellants had filed CMP(M) No. 641 of 2009 and CMP(M) No. 642 of 2009 which were dismissed as 5 withdrawn as the name of respondent No.2 was inadvertently typed wrongly in those applications. Thereafter, the appellants have filed the present two applications without unnecessary delay. It has been submitted that the delay is bonafide and therefore, the same may be condoned, abatement of the appeal may be set-aside and legal representatives of respondent No.2 may be taken on record. 6. The learned counsel for the respondents has submitted that the entire stand of the appellants is an after thought. The appellant No.1 had died on 30.7.2002, thereafter application was filed in the appeal on behalf of the appellants for setting aside abatement and bringing on record the legal representatives of appellant No.1 alongwith application for condonation of delay on the affidavit of Ranbir Singh, who has filed the present two applications also. It has been submitted that it is not a case of bonafide mistake but it is a case of carelessness, negligence and taking a false stand in the court and, therefore, the appellants are not entitled to any indulgence of this Court. The deceased respondent No.2 and appellants were residing in the same house (chowki) in village Kharsi, Tehsil Sundernagar, District Mandi and the respondent No.2 was the brother of grandfather of appellant No.2. The appellants right from day one were aware of the death of respondent No.2. They participated in the various ceremonies regarding the death of respondent No.2. In the court they have taken the false stand for condonation of delay in filing the application for setting aside abatement and for bringing on record the legal representatives of respondent No.2. 6 7. The learned counsel for the appellants has relied Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon AIR 1969 SC 1267 on the point that Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The learned counsel for the appellants has also relied Ram Nath Sao alias Ram Nath Sahu and others vs. Gobardhan Sao and others AIR 2002 SC 1201 where the Supreme Court has condoned the delay, set aside abatement and directed the appellate Court to dispose of the appeal on merits observing that the High court was not right in refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer. 8. The present case borders around false plea in addition to carelessness and negligence on the part of the appellants. The appellant No.2 is not an illiterate person. CMP(M) No. 35 of 2003 and CMP(M) No. 36 of 2003 were filed on the affidavits of appellant No.2 in which he has stated that he has gone through the application and their contents are true to his personal knowledge. He has signed the affidavits in support of application CMP(M) NO. 35 of 2003 in English. The CMP(M) No. 865 of 2009 and CMP(M) No. 866 of 2009 have also been filed on the affidavits of Ranbir Singh wherein he has stated that the contents of the applications are correct to his personal knowledge and he has signed the affidavits in English. Therefore, Ranbir Singh is not an illiterate person. 7 9. In CMP(M) No. 865 of 2009, it has been stated that appellants were not well versed with the intricacies of procedural law and were of the bonafide belief that since Basant Singh was respondent it was for the respondent to inform about the death of Basant Singh and to move the appropriate application in that behalf. In CMP(M) No. 866 of 2009 for the reasons stated in para 4 of the application under order 22 Rules 4, 9, it has been stated that the delay is not intentional and has occurred due to ignorance of procedural law of the appellants. This stand of appellants is contradictory. On one hand they are pleading that they were ignorant in procedural law and simultaneously they are also pleading that under bonafide belief they thought that steps for bringing on record the legal representatives of respondent No.2 would be taken by respondents. This indicates that respondents were aware that after the death of respondent No.2, legal representatives are required to be taken on record of respondent No.2. The stand of the appellants that they believed that such steps are to be taken by the respondents is not believable nor it can be said that such stand of the appellants is bonafide. How that belief was undertaken by the appellants that has not been explained. This plea is not bonafide it is nothing but false. 10. The appellants remained careless and negligent in not bringing on record legal representatives of respondent No.2 and, therefore, they have coined the plea that because of their ignorance of procedural law they could not file the appropriate applications earlier. The learned counsel for the respondents has relied Katari Suryanarayana and ors. Vs. Koppisetti Subba Rao and Ors. AIR 2009 SC 2907 wherein the Supreme Court has held as follows:- 8 It is not in dispute that the appellants were neighbours. They were co-sharers. The respective dates of death of the respondents Nos. 2 and 3, thus, were known to them. It is difficult to conceive that the petitioners were not in touch with their learned advocates from 1999 to December, 2006. If not every week, they are expected to contact their lawyers once in a year. Ignorance of legal consequences without something more would, in our opinion, be not sufficient to condone such a huge delay. Appellats are literates. They have been fighting their cases for a long time. The High Court in its impugned judgment has categorically arrived at a finding that no sufficient cause has been shown for the purpose of condonation of delay in bringing on record the names of the heirs or legal representatives of the deceased respondent Nos. 2 and 3. Appellants have pleaded about the intimation from their counsel. There is nothing on record to show whether the said intimation was written or oral.” 11. The first set of applications being CMP(M) No. 641 of 2009 and CMP(M) No. 642 of 2009 were filed by appellants on 7.7.2009 after a gap of 6 ½ years. The appellant No.1 had died earlier and for bringing on record his legal representatives, the application was filed on 4.12.2002 before the death of respondent No.2. Thus, it cannot be said that on the death of respondent No.2 the appellants were not aware that legal representatives of respondent No.2 are required to be brought on record by appellants. Thus, seen from any angle, the appellants have failed to explain sufficient cause in condoning the delay for bringing on record the legal representatives of respondent No.2 who died on 16.3.2003. The appellants have failed to make out a case for condonation of delay, setting aside abatement and bringing on record the legal representatives of 9 respondent No.2. Thus, both the applications are dismissed. Consequently, the appeal stands abated. ( Kuldip Singh ) Judge. November 23, 2010. (GR)