IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.486 of 2007 Date of Decision: 22.09.2010 Gurbachan …Appellant. Versus. Bachni Devi and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the appellant: Mr. J.R.Poswal, Advocate. For the respondents: None. Deepak Gupta, J.(Oral) 1. This appeal by the applicant is directed against the order dated 10.09.2007 whereby the appeal filed by him has been dismissed as having abated. 2. Briefly stated the facts of the case are that one Nimo Devi filed a suit against one Shri Gajjan Ram, father of the present applicant. Gajjan Ram died during the pendency of the suit and the applicant and his sister Gurbachni were impleaded as defendants in place of Gajjan Ram. The case of Nimo Devi was that she is in possession of the suit land previously as tenant and had become owner of the same by operation of law and that the revenue 2 entries showing the defendant as tenant are illegal and not binding on the plaintiff. This suit was decreed in favour of Nimo Devi and defendants were restrained from interfering in her possession over the suit land. 3. Appeal against such judgement and decree was filed only by Gurbachan and not by his sister. During the pendency of the appeal Nimo Devi died on 6.1.2004. However, application for bringing on record her legal representatives was filed only on 7.8.2006. In this application, it was stated that the applicant Gurbachan is a poor labourer and he resides at a distance of about three kilometers from the house of Nimo Devi and was unaware about her death. According to the applicant it was only on 17.6.2006 that he came to know in the village that Nimo Devi had expired and thereafter on 18.7.2006 he informed his counsel. Then he was asked to collect the death certificate which was received by him on 28.7.2006 and thereafter application filed on 7.8.2006. According to the petitioner the application was within limitation. 4. There can be no manner of doubt that in case the averments made in the application are correct 3 the abatement, if any, had to be set-aside. However, the respondents contested the case and submitted that the plaintiff who was staying only three kilometers away was aware about the death of Nimo Devi right from the year 2004. Issues were framed on 5.3.1999. The respondents examined the Office Kanungo who proved the mutation Ext.RW-1/A. They also examined RW-2 Naib Tehsildar who stated that on the basis of the decree passed in favour of Nimo Devi he had made changes in the revenue record in favour of her legal heirs on 25.3.2005 vide mutation No.769 in the presence of Gurbachan the present appellant. He also stated that Gurbachan was identified before him by the Nambardar of the area and that both Gurbachan and Nambardar had affixed their signatures on certain documents. Gurbachan did not deny that he had affixed the signatures on certain documents. His explanation is that the Patwari asked him to sign a blank piece of paper which he signed. This explanation cannot be accepted. A person who is litigating in Court and has filed an appeal in a case which has been decreed will never give blank signed documents to the Patwari. The Nambardar who identified the appellant has not been examined. It is, 4 therefore, obvious that the appellant became aware about the death of Nimo Devi much earlier. Normally, this Court would be loathe to dismiss the case of any party on a technical ground that too of abatement. The law in this regard is very liberal and normally abatement is set-aside merely for the asking. However, any party who seeks the sympathy of the Court must approach the Court with clean hands. Here the application filed by the plaintiff contains a totally false averment. Even as per the averment made in the application Nimo Devi resided only at a distance of three kilometers. In a rural area where the applicant was also living at a distance of only three kilometers he could not have been unaware of the death of Nimo Devi. There was no need by him to give a false explanation but once he has given a false explanation and the same has been found to be incorrect then no sympathy can be shown to him. 5. Shri J.R.Poswal, learned counsel for the appellant, has relied upon a judgement of the Apex Court in K.Rudrappa vs. Shivappa, (2004) 12 SCC 253, in which the Apex Court has very clearly held that the Court should take a very liberal view in the matter of bringing on record the legal heirs and such 5 applications should not be rejected on technical grounds. There can be no quarrel with this proposition but as held by me above a dishonest litigant disentitles himself to grant of such relief. Therefore, I find no merit in the appeal, which is accordingly dismissed. No order as to costs. 22nd September, 2010 ( Deepak Gupta ) ™ Judge.