1 S.B. CIVIL MISC. APPLICATION NO. 67/2006. IN S.B.CIVIL REGULAR FIRST APPEAL.NO.172/1994. (Food Corporation of India & Ors. Vs. Chandanmal) Date of Order :: 26th September 2008. HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr. Nitin Trivedi, for the applicants. Mr. B.R. Mehta ] Mr. Swanand Jasmatiya ], for the non-applicants. ....... The applicants, appellants in S.B. Civil First Appeal No. 172/1994, have moved the present applications for setting aside the abatement, for condonation of delay in filing the application for setting aside abatement, and for substitution of the legal representatives of the deceased respondent. These applications were filed on 28.09.2005, only after the said appeal was consigned to record for having abated as per the order passed by this Court on 16.08.2005. Briefly put, the relevant background aspects are that the applicants-appellants preferred the said first appeal under Section 96 of the Code of Civil Procedure (CPC) against the judgment and decree dated 30.07.1994 as passed in Civil Suit No. 136/1986 by the Additional District Judge No.1, Jodhpur whereby the civil suit for money recovery as filed by the plaintiff-respondent towards the amount of due bills, security deposit and interest in relation to a contract of loading, 2 unloading, handling and transportation of goods was decreed holding the plaintiff entitled to recover an amount of Rs. 1,18,251/- together with interest @ 18% per annum from the date of filing of the suit; and whereunder the counter-claim as taken by the defendants-appellants seeking recovery of an amount of Rs. 1,06,950.39 was rejected. The said appeal was admitted on 05.12.1994, notices were issued to the respondent and by way of interim order, the execution of the decree was stayed on the condition that the decreetal amount be deposited in the Court within three months. After service upon the respondent, the stay order was confirmed on 22.03.1995. Thereafter, on 04.11.1996, this Court permitted the respondent to withdraw the decreetal amount deposited by the appellants after furnishing solvent surety to the satisfaction of the learned Trial Court. The appeal was thereafter placed for hearing in due course. On 22.10.2002, an application came to be moved in the appeal on behalf of one of the legal representatives of the respondent stating therein that the sole respondent Chandanmal had expired on 24.04.2002 and the information of his death was advertised in the newspapers also. The names of 8 legal representatives of the deceased respondent were given out and it was stated that the appellants had failed to bring on record the legal representatives of deceased respondent within time and consequently, the appeal stood 3 abated; and it was prayed that the appeal be dismissed as such. The copy of the aforesaid application was of course not delivered to the appellants and it was noted on the application by the counsel for the applicant that fresh Vakalatnama had not been filed for appellants and hence, their copy was attached. Taking note of the peculiar circumstances of the case, this Court considered the position that the appellant Corporation might not be aware of the factum of demise of the sole respondent and, therefore, by the order dated 07.01.2003 directed that notices be issued to the appellant No.2 along with copy of the application so filed. Thereafter, on 16.08.2005, when the said application as moved on behalf of one of the legal representatives of the deceased respondent seeking dismissal of the appeal was taken up for consideration, this Court noticed the fact that in pursuance of the order dated 07.01.2003, the notices were served on the Senior Regional Manager of the appellant Corporation at Jaipur on 24.05.2003 and on the District Manager on 28.02.2004 and fresh Vakalatnama was filed on behalf of the appellants on 27.03.2004 and the appellants, despite having been made aware of the fact of demise of the sole respondent, chose not to move any application for substitution of his legal representatives or for setting aside the 4 abatement or for condonation of delay. On the other hand, the learned counsel appearing for the appellants merely submitted that it had been a technical and inadvertent error of having not moved an application for substitution and so also the application for setting aside the abatement. However, no any application was moved on behalf of the appellants at that stage; and this Court finding that the appeal had already abated, ordered the same to be consigned to record with the following order: “Having considered the record of the case, this Court finds that so far the fact of the sole respondent having expired on 24.4.2002 is concerned, the same has not been disputed or controverted by the appellants. The application, which has been moved on behalf of one of the legal representatives of the deceased-respondent is only with the prayer that the appeal be dismissed as abated. The appellants despite being aware of the appeal having already abated, have chosen not to move any application for setting aside the abatement or for condonation of delay. In that view of the matter, the appeal having already abated on account of the death of the sole respondent as back as on 24th April, 2002 and the appellant having not made any application for setting aside the abatement, no further proceedings could be taken in this appeal. The appeal having abated be consigned to record as such.” As noticed at the outset, the applicants-appellants, thereafter, moved the applications for revival of the appeal. Essentially, the submissions on behalf of the applicants in the said applications are to the effect that the application for setting aside the abatement has been preferred belatedly and could not be preferred in time by their earlier counsel Shri 5 Mohan Lal Kala who expired on 21.02.2004 and thereafter by his son Shri Shailendra Kala and it was an inadvertent error as admitted by the learned counsel on 16.08.2005. While giving out the names of the legal representatives of the deceased respondent, the applicants have prayed for condonation of delay, for setting aside the abatement and for substitution of the said legal representatives. On these applications, notices were issued and after filing of the reply on behalf of the proposed respondents, when the matter was considered by the Court certain queries were put, particularly regarding the steps taken, if at all, by the applicants to pursue the matter in appeal. Thereafter, an additional affidavit came to be filed on behalf of the applicants on 03.09.2008 and, while annexing copies of several of the communications dated 27.02.2003, 11.06.2003, 19/21.08.2003, 14.11.2003, 27.01.2004, 26.03.2004, 21/05.2004, 16.07.2004 and 13.08.2004, it has been stated that the then counsel was regularly asked to do the needful for further proceedings but inadvertently, the application for setting aside the abatement was not filed by the counsel and thus occurred the delay in filing. Arguing for the applicants, the learned counsel has referred to the decisions of the Hon'ble Supreme Court in the cases of M. Balakrishnan Vs. M. Krishnamurthy: (1998) 7 SCC 123 and Sardar Amarjit Singh Kalra (Dead) By LRs & 6 Ors. Vs. Pramod Gupta (Smt.)(Dead) by LRs & Ors. :(2003) 3 SCC 272 and submitted that in a liberal approach towards the matter, the bona fide delay and defaults on the part of the applicants may be condoned and while setting aside abatement, the appeal may be considered on merits after substitution of the legal representatives of the deceased respondent. While putting the applications to contention, and particularly with reference to the fact that an application was indeed moved in the appeal on behalf of one of the legal representative of the deceased respondent himself, it has been argued on behalf of the non-applicants that there was no justification that the applicants did not move the appropriate applications in time and the applications now moved do not make out any sufficient cause for condonation of delay and for setting aside abatement. It has also been contended by the learned counsel appearing for the non-applicants that the applications are not maintainable for the order dated 16.08.2005 being an appealable one under Order XLIII Rule 1 (k) CPC and once this Court has passed the order that the appeal had abated, no fresh order could be passed now on the prayers as made by the applicants in these applications. So far the objections as raised on behalf of the non- applicants on the maintainability of these applications are concerned, the submissions are not in accord with the 7 meaning and purport of the order dated 16.08.2005 nor are in correct interpretation of Rule 1 (k) of Order XLIII of the Code of Civil Procedure. Per Order XLIII Rule 1(k) CPC, appeal lies from an order under Rule 9 of Order XXII CPC if made in refusing to set aside the abatement or dismissal of the suit. In the present case, as on 16.08.2005, no application for setting aside of abatement was moved and there was no occasion to pass any such order as contemplated by Order XXII Rule 9 CPC. On the given date, the obtainable position was that the sole respondent was reported to have died as back as on 24.04.2002 and no application for substitution of his legal representatives was moved and hence, the appeal had already and automatically abated. At the given stage, no further proceedings could have been taken in the appeal, particularly for the appellants having not made any application for substitution and for setting aside the abatement and hence, the appeal was ordered to be consigned to record. The applications for setting aside the abatement and for condonation of delay in filing the application for setting aside abatement have been moved only after passing of the order dated 16.08.2005 and are being considered herein. The order dated 16.08.2005 was not an appealable one; and in fact, nothing was decided in the said order except recording the facts as available on record, the omission on the part of the appellants, and the consequential operation of law that the 8 appeal had abated. The objection on maintainability of these applications remains wholly untenable and is rejected. So far the prayer for condonation of delay in filing the application for setting aside the abatement is concerned, this Court finds in the first place that the applicants are not justified in shifting the entire burden on their erstwhile counsel. The communications as referred by the appellants are either irrelevant or fall short of the requirement of due diligence on the part of the appellants. The communication dated 27.02.2003 had only been of asking the counsel to apply for early hearing of the appeal. Of course, in the communication dated 11.06.2003, the opinion of the Deputy Manager (Legal) was reproduced that was made with reference to the order passed by this Court on 09.01.2003 on the application filed by the son of the deceased respondent and the notice served thereupon; and it was opined that the proceedings could be taken under Order XXII Rule 4(4) & 4(5) CPC. However, by the said communication dated 11.06.2003 only the counsel was asked to take the action. The other communications dated 21.08.2003 and 14.11.2003 are only of information about adjournment and are of no relevance. By the communication dated 27.01.2004, again, the counsel was asked to take appropriate steps on the application moved by the son of the respondent to safeguard the interest of the appellant Corporation. The communication dated 26.03.2004 9 had only been of handing over Vakalatnama to Shri Shailendra Kala, Advocate. The communication dated 21.05.2004 had been of stating the proceedings dated 27.04.2004 that the case did not reach and the matter had been adjourned for service of notice to the legal representatives of the respondent. The other communications dated 16.07.2004 and 13.08.2004 are general in nature only asking for expeditious proceedings in pending cases. It is not borne out from any of the communications aforesaid or from the affidavit as filed on behalf of the applicants that any responsible person on their behalf presented himself in the chambers of the lawyers concerned for the purpose of drafting and preparing the requisite applications and affidavits with the necessary record and particulars. It appears that the persons in charge of the affairs of the litigations of the applicant Corporation took the things rather too casually and assumed that their responsibilities were over by simply addressing the letters to the lawyers. Whatever kind of applications were to be filed, that had to be supported by the affidavit of the officer concerned and it is not borne out in the entire length of submissions of the applicants as to who, if at all, on their behalf attended the chambers of the lawyers for drafting and filing of such applications and affidavits. 10 The approach on the part of the applicant-Corporation and its officers in merely shifting the entire burden either on the counsel who is no more or on the other counsel and then moving the present applications by change of counsel while not answering to their own defaults cannot be appreciated. But and however, the applicant Corporation remains an agency of the Government and the matter relates to the decree as granted against the applicants and of rejection of their counter-claim and it had been a regular first appeal, essentially requiring consideration on merits. For the faults, defaults and indiscretion on the part of the staff of the applicant Corporation in not taking timely and concrete steps in the matter, it does not appear appropriate to non-suit the applicants altogether and not to consider the matter on merits particularly when, otherwise, no malafide intention appears on the part of the applicants. It is true that the delay on the part of the applicants in moving the requisite applications and in taking appropriate steps despite being made aware of the demise of the sole respondent in the appeal had been inordinate and rather inexplicable but then, merely for such delay on their part, adjudication of the matter on merits deserves not to be denied; and this Court is of opinion that the application for condonation of delay deserves to be allowed while putting the applicants to the terms of costs, the application for setting aside the abatement also deserves to be 11 granted, and the legal representatives as mentioned in the application deserve to be substituted as respondents in place of the deceased respondent. Accordingly, the applications aforesaid are allowed in the manner that delay in filing the applications is condoned and the abatement of the appeal is set aside and the legal representatives of the sole-respondent as mentioned in the application are ordered to be substituted as respondents subject to the condition that it shall be required of the applicants to make payment of costs of Rs. 2,000/- (two thousand) to the legal representatives of the sole respondent within a week from today and also to file amended cause title in the main appeal within such period of one week. It is made clear that on any default in carrying out compliance of the requirements of this order, the applications shall stand rejected. It is also made clear that it shall be permissible for the applicants to recover the said amount of costs from the persons responsible in their staff for such delay and defaults, of course, strictly in accordance with law. Civil First Appeal No. 172/1994 shall stand revived for consideration upon compliance of the requirements of this order by the applicants and may be processed accordingly. (DINESH MAHESHWARI), J. Mohan/