1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.6534/2003. (Smt. Shakuntala Vs. Shivdan Singh Kothari & Others) DATE OF ORDER : November 06, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. K.N. Joshi/Mr. Rajesh Joshi for the petitioner. Mr. Suresh Shrimali/Mr. Kuldeep Mathur for the respondents. BY THE COURT : In this writ petition, petitioner is challenging order dated 22.10.2003 passed by learned Addl. District Judge No.2, Udaipur in Civil Suit No.144/1987 upon application filed under Section 151, C.P.C. by the petitioner Smt. Shakuntala. According to the facts of the case, in the suit for partition, a preliminary decree was passed on 06.11.1984 against which appeal was preferred before this Court and the same was dismissed as having abated due to non-substitution of the legal representatives vide order dated 15.01.2003. Said order was passed by this Court in S.B. Civil First Appeal 2 No.2/1985. The petitioner-applicant moved an application dated 17.02.2003 under Section 151, C.P.C. for substitution claiming herself to be the only legal representative of the deceased plaintiff late Duleh Singh and also sought substitution of non-applicants No.1/1 to 1/7 as legal representatives of defendant No.1 due to death of defendant No.1 during the pendency of the appeal against the preliminary decree dated 06.11.1984. The non-applicants in respect of whom prayer was made by the petitioner to be substituted as legal representatives of defendant No.1 contested the application; but, defendant No.2 did not contest and conceded before the trial Court that application may be allowed. Defendant No.3 also died but defendant No.2 is son of defendant No.3 and as such defendant No.2 sought leave to continue on behalf of defendant No.3. Learned trial Court rejected the application vide the impugned order solely on the ground of limitation. Before the trial Court, while opposing the application filed by the petitioner under Section 151, C.P.C., it was submitted that since no application for substitution was made within time permitted by law i.e., within 90 days as per law or within three years, such application cannot 3 be allowed now and the suit therefore stands abated. Upon the above objection, it is contended by learned counsel for the petitioner that since the preliminary decree has been passed in the case on 06.11.1984, therefore, right to sue or right to defend did not survive thereafter and as such Order 22 Rules 3 & 4, C.P.C. did not apply and suit cannot be said to have abated due to death of the party. Certain judgments were also brought to the notice of the Court as follows : (1) AIR 1963 Rajasthan 235, (2) AIR 1956 Orissa 165, (3) AIR 1970 Patna 316, (4) AIR 1975 Karnataka 64, (5) AIR 1979 Andhra Pradesh, (6) ILR 60 Calcutta 40, and (7) AIR 1936 Madras 714; and, while citing the above judgments, it is submitted that Order XXII Rule 3, C.P.C. does not apply because after passing the preliminary decree right to sue does not apply and there can be no abatement of the suit in such a case. Upon the said argument, it is contended by the contesting party that even Order XXII Rules 3 and 4, C.P.C. do not apply in such a case because within 4 period of limitation substitution of the legal representatives must be sought in such a case and provisions of Order 22 Rule 10, C.P.C. will apply and suit can be continued against them at any time with the liberty of the Court. For the aforesaid purpose, the contesting legal representatives of defendant No.2 brought to the notice of the trial Court certain judgments and submitted that only Articles 120 and 137 of the Limitation Act are relevant for this purpose. Even if it is held that this application is not covered by Article 120 which prescribes period of limitation of 90 days, then too, the application ought to have been presented within three years as per Article 137 of the Act. After hearing both the parties and considering the arguments, learned trial Court rejected the application dated 17.04.2003 whereby the applicant made a prayer for substitution of legal representatives in place of deceased plaintiff and defendant No.1. While attacking the order impugned dated 22.10.2003, learned counsel for the petitioner vehemently argued that on hyper-technical ground the application has been rejected by the learned trial Court, therefore, the order impugned deserves to be quashed. 5 It is argued that the judgments cited by counsel for the petitioner-applicant were not considered properly, so also, facts of the case were not taken into consideration in right perspective. Learned counsel for the petitioner submits that in the suit in question a preliminary decree was passed on 06.11.1984 and during pendency of appeal defendant No.1 and plaintiff both died, thereafter, application for substitution for legal representatives of plaintiff as well as defendant No.1 were filed in the suit for partition in which a preliminary decree was passed and rights were determined by the trial Court and the proceedings for passing final decree was in force. Learned counsel for the petitioner invited my attention towards judgment of the Hon'ble Supreme Court, reported in AIR 1983 SC 355, Bhagwan Swaroop & Others Vs. Mool Chand & Others and submitted that in the reported judgment identical situation was in existence and Hon'ble apex Court while setting aside the order passed by the High Court has held that a hyper-technical approach, if carried to end, may result in miscarriage of justice. Therefore, it is prayed that the order impugned may be quashed and application filed by the petitioner for substitution may be allowed. 6 Per contra, learned counsel for respondents No.1/1 to 1/7 vehemently argued that the order impugned dated 22.10.2003 does not suffer from any illegality; more so, it is in consonance with law. Further, it is contended that upon the conduct of the petitioner she is not entitled to any relief in this petition because earlier against order dated 06.11.1984 appeal was filed by late Shivdan Singh Kothari. Said appeal was listed before the Court on 15.01.2003. On that date, it was submitted upon application filed by respondents' counsel Shri K.N. Joshi, in which, it was prayed that appeal should be dismissed as abated for the reason that appellant No.1 Shivdan Singh died on 10.11.1996 and his legal representatives have not been brought on record. In the said appeal, co- ordinate Bench of this Court observed that though application was filed four years ago and sole appellant died more than six years ago, no application for substitution of the appellant has been filed. At that stage, Shri S.N. Pungalia, who was appearing on behalf of the appellant Shivdan Singh, sought some time to seek instructions from his client; but, upon insistence of Shri K.N. Joshi that in the suit also substitution application has not been filed after the death of Shivdan 7 Singh, in that situation, the Court observed that no substitution has been made in the suit, therefore, no purpose will be served by keeping the appeal pending. It is submitted by learned counsel for the respondents that the conduct of the petitioner does not give any right to the petitioner to challenge the impugned order before this Court because, first of all, upon her request the appeal filed by late Shivdan Singh was got dismissed for want of substitution; and, thereafter, application was moved before the trial Court for substitution of legal representatives of plaintiff and defendant No.1 both. Further, it is argued that admittedly even if the argument of learned counsel for the petitioner is accepted that in this case Order XXII Rule 3 and 4, C.P.C. do not apply and Article 137 of the Limitation Act will apply, then, also the application was to be filed within three years; but, here in this case, application under Section 151, C.P.C. has been filed for substitution which is beyond prescribed limitation, therefore, the learned trial Court has rightly rejected the application so filed by the petitioner. Learned trial Court has thoroughly discussed the judgments cited by both the parties and has rightly come to the conclusion that if 8 any application is made after long delay without any explanation for the delay, then, there is no jurisdiction for exercising the inherent power, therefore, the order impugned is perfectly in consonance with the provisions of law. I have considered the rival submissions made by both the parties. In this case, admittedly, the suit was filed initially by Duleh Singh, father of the applicant-petitioner for partition. In that suit, a decree was passed on 06.11.1984 and, against that preliminary decree, appeal was preferred by defendant No.1 Shivdan Singh. During the pendency of the appeal, however, Shivdan Singh died and no application for substitution of his legal representatives was filed. Consequently, S.B. Civil First Appeal No.2/85 was dismissed as having abated. Thereafter, application under Section 151, C.P.C. was filed in the proceedings before the Addl. District Judge, Udaipur for substitution of legal representatives of Duleh Singh. In that application, a prayer was made for substituting the legal representatives of defendant No.1 Shivdan Singh also. It is also admitted position of the case that in the said suit pending before the civil Court no application 9 under Order XXII Rules 3 and 4, C.P.C. was filed. It is also true that application was filed after long delay; but, fact remains that preliminary decree was passed on 06.11.1984, against which, appeal was filed by defendant Shivdan Singh who also died during the course of pendency of the appeal. On 15.01.2003, appeal was dismissed. Thereafter, legal heir of late plaintiff Duleh Singh filed application for substitution of legal representatives of plaintiff as well as defendant No.1 for the purpose of proceedings in the suit for final decree in the partition suit. In my opinion, the legislature purposely prescribed Section 151, C.P.C. for such type of cases and while taking into consideration, almost on the same facts, at appellate stage, the Hon'ble apex Court in the case of Bhagwan Swaroop (supra) made the following adjudication : “A preliminary decree was passed after partition in a suit filed by appellant against respondents 1 and 2. During appeal respondent 1 died and his legal representatives were not brought on record for more than 3 years. Afterwards an application was filed by appellant under O. 22, R.4 and other application was filed by legal heirs of respondent 1 under O.1, R.10. These applications were rejected by High Court and it was held that the appeal abated as a whole. 10 The order of High Court disclosed a hypertechnical approach which if carried to end may result in miscarriage of justice. If the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice. The application of appellant as well as that of legal representatives was allowable.” In that case, a preliminary decree was passed after partition in the suit filed by appellant against respondents No.1 and 2 of that case. During the course of pendency of appeal, respondent No.1 died and his legal representatives were not brought on record for more than three years. It is true that there is inordinate delay in filing the application; but, fact remains that preliminary decree in the partition suit was passed on 06.11.1984 which was challenged by Shivdan Singh by way of filing appeal. After that, application was filed under Order 22 Rule 3, C.P.C. which was rejected by the High Court, in which, it was held that appeal abated as a whole. That appeal, however, was dismissed having abated in the month of January 2003; 11 meaning thereby, appeal was pending since 1985 up to 2003 and, that, too, was filed by Shivdan Singh whose legal representatives are raising the ground of delay here. Hon'ble Supreme Court, in the said judgment, set aside the judgment of the High Court and held that order of the High Court disclosed a hyper-technical approach which, if carried to end, may result in miscarriage of justice. Para 5 and 6 of the said judgment read as follows : “5.In a suit for partition, the position of plaintiffs and defendants can be interchangeable. It is that each adopts the same position with the other parties. Other features which must be notied are that the appeal was filed somewhere in 1972. It had not come up for hearing and the matter came on Board only upon the application of the second respondent intimating to the Court that the 1st respondent had died way back and as his heirs and legal representatives having not been substituted, the appeal has abated. Wheels started moving thereafter. Appellants moved an application for substitution. The matter did not end there. Heirs of deceased respondent No.1 then moved an application for being brought on record. If the application had been granted, the appeal could have been disposed of in the presence of all the parties. The difficulty High Court experienced in granting the application disclosed with great respect, a hyper-technical approach which if carried to end may result in miscarriage of justice. Who 12 could have made the most serious grievance about the failure of the appellants to substitute the heirs and legal representatives of deceased respondent No.1. Obviously the heirs of deceased respondent No.1 were the persons vitally interested in the outcome of the appeal. They could have contended that the appeal against them has abated and their share has become unassailable. That is not their case. They on the contrary, want to be impleaded and substituted as heirs and legal representatives of deceased respondent No.1. They had absolutely no grievance about the delay in bringing them on record. It is the second respondent who is fighting both the appellants and the Ist respondent who wants to derive a technical advantage by this procedural lapse. If the trend is to encourage fair play in action in administrative law, it must all the more inhere in judicial approach. Such applications have to be apprached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Undoubtedly, justice according to law; law to be administered to advance justice. 6. Having meticulously examined the contention advanced by the learned counsel on behalf of respondent No.2 Mool Chand, who is the only contesting respondent, we are satisfied that the application made by the appellants as well as the one moved by the heirs and legal representatives of deceased respondent No.1 should have been allowed and the heirs and legal representatives of deceased should have been substituted after setting aside abatement and condoning the delay in making the application.” 13 In my opinion, the order passed by the learned trial Court is not justified because the controversy must come to an end. It is settled principle of law. Here, in this case, if prayer of the respondent is accepted, then, it resulted into further litigation knowing well that rights have already been determined by way of passing a preliminary decree on 06.11.1984 in the suit for partition. Now, no adjudication is, therefore, required in the suit except to draw the final decree and, admittedly, the preliminary decree passed on 06.11.1984 was challenged by way of filing appeal by late Shivdan Singh which was dismissed in January 2003; meaning thereby, all the share-holders of the property in question are waiting for their legal right of share in the property for last so many years, therefore, at this stage, in my opinion, the power left to the civil Court under Section 151 of the Code of Civil Procedure is required to be exercised to secure the ends of justice. Therefore, while following the judgment in Bhagwan Swaroop's case (supra), I deem it just and proper that order dated 22.10.2003 passed by the trial Court deserves to be quashed and set aside and application filed by the petitioner under Section 151, C.P.C. for substitution claiming herself to be the legal 14 representative of late plaintiff Duleh Singh as well as prayer for substitution of respondents No.1/1 to 1/7 as legal representatives of late defendant No.1 consequent upon his death during the pendency of appeal deserves to be allowed. Accordingly, while this writ petition is allowed, order impugned dated 22.10.2003 passed by the trial Court is quashed and application filed under Section 151, C.P.C. by the petitioner for her substitution in place of late plaintiff Duleh Singh and substitution of respondents No.1/1 to 1/7 in place of deceased defendant No.1 is ordered to be allowed. LRs, as aforesaid, are hereby ordered to be taken on record and case is remitted to the learned Addl. District Judge No.2, Udaipur with a direction to proceed and decide the suit for partition finally within a period of two months from the date of receipt of certified copy of this order. (Gopal Krishan Vyas) J. Ojha, a.