IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (Ord) No.102 of 2001. Reserved on:22.06.2007. Decided on:July 20, 2007 Tej Ram & Anr. …..Appellants. VERSUS Drumti Devi & Ors. …..Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants: Mr.Shrawan Dogra, Advocate. For the Respondents: Mr.Ajay Sharma, Advocate for respondents No.1 to 7. Kuldip Singh, Judge This appeal is directed against the judgment and decree dated 23.10.2000 passed by learned Additional District Judge, Mandi in Civil Appeal No.48 of 1995 refusing to condone delay for filing application under Order 22 Rules 3, 9 read with Section 151 C.P.C. for bringing on record legal representatives of Molak Ram after setting aside abatement of the appeal. 2. The facts, in brief, are that Molak Ram filed a suit for declaration and possession regarding land comprised in Mohal Bhanthal/479 Khewat No.57 min, Khatauni No.107 Khasra No.150, 151, Kita 3 measuring 1-12-8 bighas and Khatauni No.109 Khasra 1 Whether the reporters of the local papers may be allowed to see the Judgment ? Yes. …2… No.147 measuring 2-3-12 bighas. The suit was contested by defendant No.1, who took preliminary objections of maintainability, locus standi, jurisdiction and valuation of the suit. On merits, defendant No.1 pleaded that he was a non occupancy tenant on the suit land and by operation of law he has become owner of the suit land. On an oral understanding the possession of the suit land was given by him to the plaintiff for two years but after the expiry of two years the plaintiff did not deliver the possession of the suit land to him. The plaintiff is a trespasser on the suit land. The defendant No.1 filed a counter claim for declaration that he is owner of the suit land, alternatively he may be declared tenant on the suit land and he prayed decree for possession against plaintiff. The trial Court on 31.3.1995 dismissed the suit of the plaintiff and decreed the counter claim of defendant No.1 and directed the plaintiff to deliver the possession of the suit land to defendant No.1 within three months. 3. Molak Ram filed appeal against the judgment and decree dated 31.3.1995, he died on 24.5.1996. An application dated 7.2.1998 was filed on 7.2.1998 by Duma Ram son of Molak Ram for setting aside abatement of the appeal and for bringing on record legal representatives of Molak Ram. It was alleged that appeal was filed by Molak Ram through his son and power of attorney holder Tej Ram, who did not tell the Court proceedings to applicant Duma Ram. Khem Raj, proforma respondent informed the pendency of the appeal to the applicant and thereafter the application was filed by the applicant …3… Duma Ram for setting aside abatement and bringing on record legal representatives of Molak Ram. 4. The application was contested by defendant No.1 Man Singh. He took preliminary objections of vagueness of the application. The application was time barred. On merits, he denied averments made by the applicant in the application. In the meantime, Man Singh defendant No.1 also died on 7.7.1998 and defendant No.3 Shukru filed an application being CMP No.156-A of 2000 under Order 22 Rule 4 read with Section 151 C.P.C. supported by affidavit dated 6.11.1998 for bringing on record legal representatives of Man Singh. This application was contested by Smt.Drumti Devi and Om Parkash legal representative of Man Singh. 5. The perusal of order dated 19.10.2000 of the lower appellate Court would show that the arguments were heard by the lower appellate Court on the applications dated 7.2.1998 and 6.11.1998. The Additional District Judge declined to condone the delay in filing the application dated 7.2.1998 for bringing on record legal representatives of Molak Ram and dismissed the appeal as having abated on 23.10.2000. The Additional District Judge thereafter passed the following order on 23.10.2000 in CMP No.156-A of 2000:- “Heard. Since main appeal stands dismissed as having been abated vide separate judgment dated today, hence, present application has become infructuous …4… and is accordingly dismissed. Be tagged with the main file after registration.” The order dated 23.10.2000 passed by the Additional District Judge, Mandi in Civil Appeal No.48 of 1995 has been assailed by the legal representatives of Molak Ram in the present appeal. 6. I have heard the learned counsel for the parties and gone through the record. 7. The learned counsel for the legal representatives of Molak Ram has submitted that the lower appellate Court has erred in not condoning the delay in filing the application for setting aside abatement and bringing on record legal representatives of Molak Ram. He has submitted that the parties were at issue regarding the condonation of delay and setting aside abatement of the appeal and for bringing on record legal representatives of Molak Ram appellant. Therefore, proper course for the lower appellate Court was to frame issues and then decide the dispute after giving opportunity to the parties to lead evidence. There is no direction of the lower appellate Court to lead evidence by way of affidavits or treat the affidavits already filed by the parties as evidence. The Additional District Judge has committed procedural irregularity which has caused prejudice to the legal representatives of Molak Ram inasmuch as their vested rights in the property have been adversely affected by the procedural irregularity committed by Additional District Judge in deciding the application. The legal representatives of Molak Ram were not given …5… opportunity to lead evidence in support of their application. The learned counsel for the legal representatives of Man Singh has supported the impugned judgment and decree. 8. There is no dispute that Molak Ram had died on 24.5.1996 and for bringing on record his legal representatives an application was filed on 7.2.1998 with the prayer that abatement of the appeal may be set aside and legal representatives of Molak Ram may be brought on record. The application was filed when Khem Raj proforma defendant told applicant Duma Ram about the pendency of the appeal in the lower appellate Court. There is no separate application under Section 5 of the Limitation Act. The composite application for condonation of delay, setting aside abatement and bringing on record legal representatives of the deceased party is maintainable as has been held by this Court in Mussadi and others versus Jai Gopal and others [1994(1) SLJ 90]. 9. The parties were at issue, therefore, proper course for Additional District Judge was to frame issues and thereafter an opportunity should have been given to the parties to lead evidence. In the present case, issues were not framed and no opportunity was given to the parties to lead evidence. There is no order of the Additional District Judge directing the parties to lead evidence by way of affidavits under Order 19 C.P.C or to consider the affidavits already filed by the parties as evidence in the case. The Additional District Judge has decided application dated 7.2.1998 on 23.10.2000 without …6… affording an opportunity to the parties to lead evidence regarding their respective contentions. Thereafter CMP No.156-A of 2000 was disposed of by Additional District Judge, as noticed above. The impugned judgment and decree are thus not sustainable. 10. The valuable rights of the parties are involved in the case. In these circumstances because of procedural irregularity committed by Additional District Judge, the impugned judgment and decree are set aside. The case is remanded to Additional District Judge, Mandi with a direction to frame issues and give opportunity to parties to lead evidence and then decide application dated 7.2.1998 for bringing on record legal representatives of Molak Ram and also the CMP No.156- A of 2000 for bringing on record legal representatives of Man Singh in accordance with law uninfluenced by any observation made by this Court touching the merits of the case in this order. The lower appellate Court shall decide the applications dated 7.2.1998 and 6.11.1998 expeditiously and preferably by 31st January, 2008. 11. The parties through their learned counsel are directed to appear before the learned Additional District Judge on 1st August, 2007. The Registry is directed to transmit the record of lower appellate Court forthwith so as to reach before the date fixed. ( Kuldip Singh ) July 20, 2007 Judge. (soni)