IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 316 of 1999 Reserved on : 02.04.2009 Date of decision: 18.04.2009 Vijay Ram and another ..... Appellants Versus State of H.P and another ..…Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. G.D. Verma, Sr. Advocate with Mr. Pardeep Verma, Advocate. For the respondent No.1: Mrs. Subh Mahajan, Dy. Adv. General. For the respondent No. 2: Mr. Vikram Thakur, vice Mr. Vijay Thakur, Advocate. V.K. Ahuja, J. : This is a Regular Second Appeal filed by the appellant under Section 100 of the Code of Civil Procedure against the Judgment and Decree, passed by learned District Judge, Bilaspur, dated 8th April, 1999, whereby the appeal filed by the appellants was dismissed and the Judgment and Decree, passed by the learned Sub Judge, Ghumarwin, dated 12.02.1992 were affirmed after dismissing the suit. 1Whether reporters of Local Papers may be allowed to see the judgment? 2 2. Briefly stated, the facts of the case are that the original plaintiff Smt. Gambhru, now represented by the present appellants filed a suit for declaration and permanent injunction as against the respondents who were impleaded as defendants. It was alleged that the plaintiff was owner in possession of the suit measuring 5 bighas and 1 biswa, which land was allotted to the plaintiff by Tehsildar Ghumarwin being a landless person under Himachal Pradesh Grant of Nautor Land to landless/eligible persons Scheme, 1975. The plaintiff alleged that she was in possession of the suit land and have made improvements over the land and defendants filed an appeal before the Deputy Commissioner against the said allotment which was allowed. An appeal was preferred against the order of Deputy Commissioner by the plaintiffs before the Divisional Commissioner and Financial Commissioner which were dismissed and the plaintiffs had challenged these orders by filing the present suit for declaration and permanent injunction. 3. Defendants pleaded that the grant was validly cancelled by the Deputy Commissioner and as such the suit was liable to be dismissed. 4. Learned trial Court framed various issues and after conclusion of the trial, the suit was dismissed by the learned trial Court. An appeal was filed by the original Appellant Smt. Gambhru before the learned trial Court. 3 During the pendency of the appeal before the learned Appellate Court Smt. Gambhru died and an application was filed by the appellants under Order 22, Rule 4 and 9 of the Code of Civil Procedure for setting aside the abatement and for being brought on record as LRs of deceased appellant. The said application was dismissed by the learned Appellate Court and while dismissing the application, the Court also gave findings on merits and affirmed the findings of learned trial Court by dismissing the suit of the appellants. 5. The present appeal has been filed by the proposed LRs of the appellant who had filed an application for being impleaded as LRs in place of original appellant Late Smt. Gambhru. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. It was submitted by the learned counsel for the appellants that there is a delay of 5 months and 10 days in filing the application from the date of death of late Smt. Gambhru. It was also submitted that subsequently, application under Section 5 of the Limitation Act was also filed by the applicants but the learned trial Court taking a technical view has dismissed the application being time barred which findings are not correct. To substantiate his submissions, the learned counsel for the appellant had relied upon the following three decisions. 4 8. The decision in case K. RUDRAPPA Vs. SHIVAPPA (2004) 12 SUPREME COURT CASES 253 shows that the appellants had claimed before the learned District Court that he was not aware of pendency of matter concerned, and only coming to know of pendency of matter somewhere in September, 1994 when he received a communication from the advocate engaged by his father. Thereafter, the appellant applied for substitution but the said application was rejected by the Court as being time barred. It was held that the appellant was right in submitting that a hypertechnical view ought not to have been taken by District Court in rejection of said application, by observing that no prayer for setting aside abatement of appeal and for condonation of delay had been filed. It was held that such technical objections should not come in the way of doing full and complete justice between the parties. 9. A similar view was also taken by the Apex Court in PERUMON BHAGVATHY DEVASWOM PEREINADU VILLAGE VERSUS BHARGAVI AMMA (DEAD) BY LRS AND OTHERS (2008) 8 SUPREME COURT CASES 321 and it was held that the High Court should have condoned the delay and set aside the abatement in view of the facts and circumstances of the case. 10. The decision in case SARDAR AMARJIT SINGH KALRA (DEAD) BY LRS. VS. PRAMOD GUPTA (2003) 3 SUPREME COURT CASES 272 shows that it was held that 5 in case of death of some of the appellants during pendency of the appeal, court should allow the applications for bringing on record the LRs on record even if filed belatedly, having regard to serious manner in which it would jeopardize effective adjudication. It was held that applications should be liberally considered, whether decree appealed against is joint and inseverable or severable and separable. In that case decree had been passed on claim for compensation by several persons and death of some of the appellants had taken place during the pendency of the appeal and there was failure to bring on record the LRs within time. It was held that the Court should aim to preserve and protect the rights of parties and extend help to enforce them. 11. The law has been clearly laid down by the Apex Court in all these 3 decisions which clearly shows that no hyper-technical view should be taken. The facts of K. Rudrappa Versus Shivappa case (supra) are similar to the present facts. In the present case, the application was filed earlier under Order 22 Rule 4 and 9 of the Code of Civil Procedure, though, it ought to have been filed under Order 22 Rule 3 of the Code of Civil Procedure. However, subsequently, an application under Section 5 of the Limitation Act was also filed for condonation of delay in filing the application. Even if no such application had been filed, the Court could grant time to the applicants to file an application under Section 5 of the Limitation Act which 6 necessity never arose since the application was filed before the same Court and was decided by it. There was a delay of 5 months and 10 days in filing the application from the date of death of Smt. Gambhru, 90 days has to be excluded i.e. the requisite time for filing such applications. The Court had drawn an adverse inference against the applicants from not examining one Mr. Bhagat Ram from whom the applicants have allegedly acquired knowledge about the filing of the present appeal. There was only one appellant in the case and it is not necessary that LRs should have been aware of the pendency of the appeal, particularly, when they are claiming to have also succeeded on the basis of a “WILL”. 12. In view of the above discussion, I accordingly hold that the order passed by the learned First Appellate Court in dismissing the application under Order 22, Rule 4 and 9 of the Code of Civil Procedure read with Section 5 of the Limitation Act is not sustainable in the eye of law. Application deserved to be allowed and the LRs of original Appellant should have been allowed to be brought on record. Therefore, the impugned order passed by the learned Appellate Court dismissing these applications and the findings to the effect that the appeal has abated are set aside. There was no necessity to give findings on the merits of the case once the applications had already been dismissed and consequently those findings are also set aside. 7 13. In view of the discussion, I accordingly hold that learned First Appellate Court shall allow the applications and pass appropriate orders to bring on record the LRs of deceased Smt. Gambhru. The claim has been made on the basis of “WILL” and in the reply filed by the respondents they have nowhere pleaded that there are other LRs also of the deceased on the basis of natural succession. The learned trial Court shall consider that question and shall issue notice to the other LRs., if any, before allowing the applicants to be impleaded as LRs on the basis of “WILL” and then decide the question as to whether applicants are entitled to be substituted as applicants and whether the other LRs, if any, are also liable to be impleaded as profroma respondents and all these questions are left to be decided by the learned District Judge in its judicial discretion and after disposing of the applications, the appeal shall be heard on merits and shall be decided afresh. 14. In view the above discussions, the appeal filed by the appellants is allowed. However, the parties are left to bear their own costs. Parties to appear before learned First Appellate Court on 18.05.2009. ( V.K. Ahuja ) April 18, 2009 Judge *BRB* 8