IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 163 of 2004 Reserved on : 18.12.2009. Decided on : 22.2.2010 Hardyal Singh …Petitioner Versus Anil Kumar and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. G.C.Gupta, Senior Advocate with Ms. Madhvi Singh, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate for respondents No. 1 to 3. Kuldip Singh , Judge This revision is directed against the order dated 24.8.2004 passed by learned Civil Judge (Junior Division), Court No. 3, Shimla dismissing the application of petitioner/plaintiff under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 22 Rules 3, 9 read with Section 151 CPC and also dismissing application under Order 22 Rules 3, 9 read with Section 151 CPC. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 2. The further case of the petitioner is that Jaswant Singh plaintiff No.2 had died on 28.12.2001 and an application for bringing on record his legal representatives was filed but that application could not be filed within the statutory period as the petitioner was under the impression that heirs of Jaswant Singh would file such application for bringing them on record in place of deceased. But no such application was filed by them, therefore, petitioner had filed the application under Order 22 Rules 3, 9 CPC for bringing on record legal representatives of plaintiff No.2 Jaswant Singh alongwith an application for condonation of delay. The application is supported by an affidavit. 3. The application for condonation of delay was opposed by the defendants on the grounds that sufficient cause has not been explained. It was the duty of petitioner to file an application for bringing on record legal representatives of Jaswant Singh after his death. It has been submitted that an application under Order 1 Rule 10 read with Section 151 C.P.C. was filed in another consolidated suit stating therein that Jaswant Singh has died. It is thus clear that counsel for the petitioner was aware that Jaswant Singh had died on 28.12.2001. 4. The learned Civil Judge has held that petitioner has failed to show sufficient cause and, therefore, the application under Section 5 of the Limitation Act was 3 dismissed so also the application under Order 22 Rules 3, 9 C.P.C. 5. I have heard learned counsel for the parties. On behalf of the petitioner Mr. G.C.Gupta, learned Senior Advocate has submitted that Civil Suit No. 457/1 of 1996/91 and Civil Suit No. 458/1 of 1996/91 were consolidated on 5.4.1994, thereafter proceedings continued in Civil Suit No. 457/1 of 1996/91. Jaswant Singh plaintiff No.2 had died on 28.12.2001 and for bringing on record his legal representatives, an application under Order 22 Rules 3, 9 CPC was filed by Hardyal Singh alongwith an application for condonation of delay. The learned Civil Judge has erred in not condoning the delay even though, sufficient cause was shown for filing condonation of delay application. He has prayed for setting-aside of the impugned order. Mr. Ajay Sharma, learned counsel for the respondents No. 1 to 3 has supported the impugned order. 6. The Civil suit No. 457/1 of 1996/91 was filed by Anil Kumar and others against Jaswant Singh, Pargat Singh, Hardyal S/o Pargat Singh, Parkash Kaur wife of Pargat Singh and others. Civil Suit No. 458/1 of 1996/91 was filed by Pargat Singh and Jaswant Singh against Shamsher Chand and others. The two suits were consolidated on 5.4.1994 and thereafter proceedings continued in Civil Suit No. 457/1 of 1996/91. In Civil Suit No. 457/1 of 1996/91 an application dated 10.12.1998 was filed under Order 22 Rule 4 read with 4 Section 151 CPC for bringing on record the legal representatives of Pargat Singh. Similarly, application under Order 22 Rule 3 read with Section 151 C.P.C. dated 5.10.1998 was filed in Civil Suit No. 458/1 of 1996/91 for bringing on record Parkash Kaur widow and Hardyal Singh, son legal representatives of Pargat Singh after the death of Pargat Singh. An application dated 1.5.2003 was filed by Hardyal Singh in Civil Suit No. 458/1 of 1996/91 for deleting the name of Parkash Kaur. In Civil Suit No. 457/1 of 1996/91 an application was filed by plaintiff that Jaswant Singh and Parkash Kaur have died and their legal representatives are already on record, therefore, their names may be deleted. Hardyal Singh filed an application dated 3.7.2002 under Order 22 Rules 3, 9 read with Section 151 C.P.C. in Civil Suit No. 458/1 of 1996/91 for bringing on record legal representatives of plaintiff No.2 Jaswant Singh alongwith an application under Section 5 of the Limitation Act. The application under Section 5 of the Limitation Act has been rejected on 24.8.2004 by the learned Civil Judge and the order dated 24.8.2004 has been assailed in the revision. 7. The application under Section 5 of the Limitation Act has been opposed by filing reply on the grounds that sufficient cause has not been shown for condonation of delay. It has been submitted that it was the duty of the surviving plaintiff to bring on record the legal representatives of the deceased plaintiff and he could not wait that such application 5 would be filed by the legal representatives of deceased plaintiff. In the reply to condonation of delay application, no plea of negligence, lack of bonafides on the part of Hardyal Singh have been pleaded. Hardyal Singh in the application for condonation of delay has submitted that he was under the impression that the legal heirs of deceased Jaswant Singh would make an application for bringing them on record. This impression of Hardyal Singh might not be correct but in opposition to condonation of delay application the respondents have not come forward with the plea that this impression of Hardyal Singh was not bonafide. 8. In State of Nagaland Vs. Lipok Ao and others (2005) 3 SCC 752, the Supreme Court has held as follows:- “What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co. Ltd. v. Shanti Misra (1975) 2 SCC 840 this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression “sufficient cause” should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram ILR (1918) 45 Cal 94 : AIR 1917 PC 156 it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 : AIR 1969 SC 575 a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. In Concord of India Insurance Co. Ltd. v. Nirmala Devi (1979) 4 SCC 365 : 1979 SCC (Cri) 996 which is a 6 case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan (1969) 2 SCC 770 this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.” 9. The learned Civil Judge has held that plaintiff has not been looking after for his interest with diligence. It has also been held that it is a case of clear lack of inaction and negligence on the part of plaintiff Hardyal Singh. Simply because application was not filed within time, it cannot be said that it is a case of negligence on the part of Hardyal Singh more particularly when the opposite side has not taken the plea of negligence on the part of Hardyal Singh while contesting the application for condonation of delay. In so far due diligence and inaction is concerned, Hardyal Singh has come forward with the plea that he was under the impression that legal representatives of deceased plaintiff would file an application for bringing them on record. 10. It is a case of mistake not of negligence or inaction or due diligence. The mistake may be due to wrong impression as to who in law is actually required to file application for bringing on record legal representatives of Jaswant Singh. The petitioner was not to gain anything by 7 making his suit defective. The two suits are pending and consolidated. In Civil Suit No. 457/1 of 1996/91 it is the case of the plaintiff that legal representatives of Jaswant Singh are already on record. In these circumstances and keeping in view State of Nagaland (Supra), I am satisfied that petitioner has made out a case for condonation of delay in filing the application under Order 22 Rules 3, 9 C.P.C. for setting aside abatement and bringing on record the legal representatives of Jaswant Singh. Therefore, application under Section 5 of the Limitation Act as well as application under Order 22 Rules 3, 9 CPC filed by Hardyal Singh are liable to be allowed. 11. No other point was urged. 12. The result of the above discussion, the revision is allowed, the order dated 24.8.2004 passed by the learned Civil Judge (Jr.Division) Court No.3, Shimla is set-aside. Application under Section 5 of the Limitation Act and application under Order 22 Rules 3, 9 CPC filed by Hardyal Singh in Civil Suit No. 458/1 of 1996/91 are allowed, abatement of the suit is set-aside and legal representatives of Jaswant Singh in Civil Suit mentioned in the application under Order 22 Rules 3, 9 CPC are ordered to be taken on record. The learned Civil Judge is directed to proceed with the two suits in accordance with law. The parties through their counsel are directed to appear before the learned Civil Judge (Junior Division) Court No.3, Shimla on 12.3.2010. The suits are quite old, the learned Civil Judge is directed to decide the 8 suits expeditiously and preferably within six months from the date files are received by the Court below. The Registry is directed to send the record to the trial Court immediately so as to reach before the date fixed. . February 22, 2010. ( Kuldip Singh ) (GR) Judge.