IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C. R. No.: 79 of 2010. Reserved on : 18.05.2011. Decided on: 27.05.2011. _________________________________________ Ganesh Dutt. … Petitioner. Versus Geeta Ram and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondents : Mr. K.D. Sood, Advocate for respondents No.1 to 7. Rajiv Sharma, Judge: This revision petition is directed against the judgment passed by the learned District Judge, Solan in Civil Miscellaneous Appeal No.16-S/14 of 2009, dated 23.4.2010. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. Material facts necessary for adjudication of this petition are that the plaintiffs, namely, Jamna Dutt, Leela Dutt and Nand Ram have instituted a suit in the Court of learned Senior Sub Judge, Solan under Sections 34 and 38 of the Specific Relief Act. Leela Dutt, plaintiff No.2 died on 2.4.2005. Present petitioner, namely, Shri Ganesh Dutt moved an application under Order 22 Rule 3 of the Code of Civil Procedure. According to the petitioner, plaintiff No.2, Leela Dutt died issueless on 2.4.2005. He had adopted him as his son. Leela Dutt had also executed a legal and valid Will in his favour on 23.11.1989. As per contents of the application, he was the only legal heir of Leela Dutt and he was required to be brought on record and was also required to be impleaded as plaintiff in the suit. He has also moved an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 22 Rule 3 of the Code of Civil Procedure. According to the averments contained in the application, duly supported by an affidavit, he was busy in performing the last rites of his uncle, Leela Dutt and he was also not aware of the pendency of the case preferred by his uncle. He was contacted by the counsel through other plaintiffs on - 3 - 15.7.2005. The application was filed on 20.7.2005. In fact, there is a delay of 18 days in moving the application under Order 22 rule 3 of the Code of Civil Procedure. He has also moved an application under Order 22 Rule 9(2) of the Code of Civil Procedure for setting aside the abatement. 3. Respondents have filed detailed replies to the three CMPs, as noticed above. The respondents have denied that any Will was executed by Leela Dutt in favour of the petitioner, Ganesh Dutt. However, it was admitted that Leela Dutt had died issueless. According to the respondents, the mutation has been sanctioned behind their back and they were never summoned by the revenue officials. As per respondents, the applicant has not shown sufficient cause for condonation of delay of 18 days. According to them, the petitioner had the knowledge regarding pendency of the case and he should have filed the application under Order 22 Rule 3 of the Code of Civil Procedure within limitation. 4. In reply to application under Order 22 Rule 9(2) of the Code of Civil Procedure, the respondents have denied that after the death of Leela Dutt, the petitioner remained busy in performing the last rites of his uncle. It - 4 - was also denied that the petitioner was contacted by the counsel through other plaintiffs on 15.7.2005. According to them, the petitioner had due knowledge regarding the pendency of the suit, but he has not moved the application within limitation. 5. The learned trial Court framed the issues on 20.7.2007. The learned trial Court dismissed the applications preferred by the petitioner under Order 22 Rule 3 read with Order 22 Rule 9(2) of the Code of Civil Procedure and Section 5 of the Limitation Act on 21.7.2008. The petitioner preferred an appeal before the learned District Judge, Solan. He also dismissed the same on 23.4.2010. Hence, this petition. 6. Mr. Bhupender Gupta, learned Senior Advocate representing the petitioner has strenuously argued that both the Courts below have erred in law by not allowing the applications preferred by the petitioner under Order 22 Rule 3 and Order 22 Rule 9(2) of the Code of Civil Procedure read with Section 5 of the Limitation Act. According to Mr. Bhupender Gupta, learned Senior Advocate, the petitioner has established that there was sufficient cause for condonation of delay of 18 days. He - 5 - then argued that the question of limitation has to be construed liberally. 7. Mr. K.D. Sood, learned counsel for the respondents has supported the judgment and order passed by both the Courts below. 8. I have heard learned counsel for the parties and gone through the pleadings carefully. 9. Leela Dutt has died, as noticed above, on 2.4.2005. The application under Order 22 Rule 3 of the Code of Civil Procedure was filed on 20.7.2005. Petitioner has tendered the evidence by way of affidavit, i.e. Ex.AW- 1/A. The factum of death of Leela Dutt has been proved vide Ex.AW-1/B. According to the contents of AW-1/A, the petitioner had become legal heir of Leela Dutt on the basis of Will. According to him, he has no knowledge of the pending case and his uncle never told him about the pendency of the case. He came to know about the pendency of the case through Shri C.K. Sharma on 15.7.2005. Thereafter application under Order 22 Rule 3 of the Code of Civil Procedure was filed. However, no suggestion has been put to him in cross-examination with regard to the pendency of the case and the manner in - 6 - which he came to know about the pendency of the case through Shri C.K. Sharma on 15.7.2005. 10. The plea raised by the petitioner that he was not aware of the pendency of the suit is not tenable. In fact, the suit has been filed by the plaintiffs, namely, Jamna Dutt, Leela Dutt and Nand Ram through their general attorney, Shri Ganesh Dutt, the present petitioner. Now so far as the finding recorded by the Courts on the fact that he was not aware about the pendency of the suit is affirmed. However, the petitioner has also taken the ground that he was busy in performing the last rites of his uncle, seems to be plausible. He has moved the application under Order 22 Rule 3 of the Code of Civil Procedure on the ground that late Leela Dutt had bequeathed his property in his favour by way of registered Will in 1989. The respondents have not cross-examined the petitioner, as noticed above, on the question of delay and the manner in which he came to know about the pendency of the case. 11. Their Lordships of Hon’ble Supreme Court in Sital Prasad Saxena (Dead) by LRs. Versus Union of India and others, (1985) 1 SCC 163 have held that the rules of procedure are designed to advance justice and - 7 - should be so interpreted as not to make them penal statutes for punishing erring parties. Their Lordships of the Hon’ble Supreme Court have held as under (para 6):- “We heard Mr. S. S. Khanduja, learned counsel for the appellants and Mr. G. D. Gupta, learned counsel for the respondents. Approach to the applications seeking condonation of delay in moving the applications for substitutions of parties who died during the pendency of civil appeal in the High Court has to be as observed by this Court in Bhagwan Swaroop v. Mool Chand and Hans Raj v. Sunder Lal Aggarwal. In the present case the High Court unfortunately committed an error in rejecting the application for condoning the delay. It is the High Court which had to satisfy itself that the petitioner made out sufficient cause which prevented him from moving the application for substitution in time and not the trial Court. The High Court may, call for report of the trial Court but then cannot adopt the approach of a Court exercising, revisional jurisdiction. It must examine the material collected by the trial Court and come to its own conclusion. In this case the High Court observed that it was not persuaded to take a view different from the one taken by the trial Court. This it impermissible. The second error was that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing. And in a traditional rural family the father may not have informed - 8 - his son about the litigation in which he was involved and was a party. Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties.” 12. Their Lordships of Hon’ble Supreme Court in Ram Nath Sao alias Ram Nath Sahu and others Versus Gobardhan Sao and others, (2002) 3 SCC 195 while interpreting Order 22 Rules 9(2) and (3) have held that sufficient cause should be given for setting aside abatement of suit and condonation of delay and the expression “sufficient cause” should receive liberal interpretation to ensure that substantial justice is done. Their Lordship have further held that acceptance of explanation given should be the rule and refusal, the exception. Their Lordships of Hon’ble Supreme Court have held as under (para 12):- “Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There - 9 - cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.” 13. Accordingly, in view of the observations and discussion made hereinabove, the petitioner has explained the delay of 18 days satisfactorily and the same ought to have been condoned by both the Courts below by giving liberal interpretation of Section 5 of the Limitation Act. - 10 - 14. Consequently, for the foregoing reasons, the petition is allowed. Judgment and order of both the Courts below are set aside. The abatement, if any, shall be set aside and the petitioner shall be brought on record as legal representative of deceased plaintiff No.2, Leela Dutt. The parties are directed to appear before the learned trial Court on 4.7.2011. (Rajiv Sharma), Judge. May 27, 2011. (sck).