Jagan vs Raghuveer Singh and Others

Alok Sharma, J.—This civil misc. appeal has been filed against the order dated 14.09.2006, passed by the Additional District & Sessions Judge, Hindaun City, Karauli by which the application filed by the plaintiffs-appellants (hereinafter ''the plaintiffs'') under Order 22 Rule 9 CPC for setting aside the abatement of their appeal was dismissed.

The facts of the case are that the plaintiff Jagan along with five others, all the legal heirs of his deceased brother Mawasi, filed a suit for cancellation of a will dated 19.02.1994 executed by one Krishna their nephew/cousin, who expired on 04.03.1994. It was stated that the will dated 19.02.1994 executed in favour of one Raghuveer Singh pertained to the ancestral property of which the plaintiffs were in cultivatory possession thereof by virtue of their nephew/cousin, Krishna not having any male heir. It was stated that the revenue entries in the name of Krishna were fraudulently obtained. The said suit however on consideration of written statement filed and evidence on record was dismissed by the trial court vide order dated 20.02.1999. Aggrieved, the plaintiffs filed a civil regular first appeal before the Court of Additional District & Session Judge, Hindaun city, Karauli, which was registered as appeal No. 9/1999.

That it appears that Jagan expired-on 18.09.1999 during the pendency of the appeal. No steps were taken to bring his legal representatives on record until an application moved on 18.12.2004 inter alia praying that the abatement of the appeal qua Jagan be set aside and his LRs be impleaded. An application under Section 5 of the Limitation Act was also filed. The reason proffered for the delay in filing of the application for setting aside the abatement under Order 22 Rule 9 CPC as also application under Section 5 of the Limitation Act was that the LRs of Jagan had been out of station and worked at Delhi and Ahmedabad making a living. Vide order dated 14.09.2006, the application filed by the plaintiffs before the appellate Court for setting aside the abatement of the appeal was dismissed. However, by the same order, the LRs of defendant-respondent Smt. Sugari, wife of Krishna, in the appeal, were taken on record as prayed. Hence this appeal.

Mr. Ajay Shukla, appearing for the plaintiff i.e. LRs of deceased plaintiff Jagan has submitted that the impugned order dated 14.09.2006, passed by the lower appellate court is wholly arbitrary and illegal and even though good grounds had been advanced relating to the illiteracy and the poverty of LRs of Jagan and their sojourn in Delhi and Ahmedabad to eek out a living, the said grounds were arbitrarily overlooked. He submits that the appeal is presently being agitated by the LRs of Mawasi and consequently in the event the plaintiffs, now the appellants in this appeal, were to be impleaded as LRs of Jagan, no prejudice would be caused to the defendants in the suit, the respondents before the lower appellate court as also herein in this appeal. It has been submitted that the impugned order dated 14.09.2006 is also arbitrary inasmuch as even while the LRs of defendant in the suit Sugari were impleaded in spite of an equivalent delay of about five years in the appeal before the lower appellate court, the same indulgence was not granted to the appellants herein as LRs of the plaintiff Jagan before the lower appellate court for delay of about the same period.

Mr. H.K. Sharma, appearing for the respondent-defendant No. 3, Chanda, has submitted that the LRs of Sugari were taken on record for the reason that Chanda her daughter was already on record as defendant No. 3 in the appeal before the lower appellate court. He submits that the delay at the instance of the LRs of the appellant should not be casually condoned for the mere asking as the trial court has not found good cause therefor.

Heard the counsel for the contesting parties.

The order dated 14.09.2006, passed by the lower appellate court, has been passed in its discretion judicially exercised. To my mind as also held by the Hon''ble Supreme Court, discretionary order of the courts below should not be interfered with by the superior courts without good cause. It is an admitted fact that the application for substitution of the LRs of co-appellant Jagan in the appeal before the lower appellate court along with the application under Section 5 of the Limitation Act was filed about 5 years subsequent to his death. The reason proffered were as vague as possible and were stated to be generally rooted in the illiteracy, ignorance and poverty of the applicants. No details of the period during which the applicants were alleged in Delhi and Ahmedabad was given out nor was the employer or the nature of employment of the applicants detailed in the application under order 22 Rule 9 CPC or the application under Section 5 of the Limitation Act. The law limitation as a statute of repose has its own role to place in the course of litigation and for needs of public policy to have finality in human affairs. Neither the statute nor the public policy underlying it can be jettisoned mechanically on generalised grounds. Specifies to assure the courts of the vigilance and bona fides of the applicants seeking condonation of delay and overcoming the law of limitation are essential otherwise the law of limitation becomes a dead letter. No specifies were pleaded by the plaintiff. Necessary facts for the exercise of discretion to condone delay were absent. Aside of the aforesaid, in my considered opinion, in the facts of the case the appeal against the judgment dated 20.02.1999 dismissing the suit for cancellation of will dated 19.02.1994 is presently being agitated by the LRs of Mawasi, now respondent Nos. 3 to 7 in this civil misc. appeal. In fact, if the LRs of Mawasi were to succeed in the appeal before the lower appellate court and the will dated 19.02.1994 were to be cancelled, it would also ensure to the benefit of the appellants in this civil misc. appeal.

For the reason aforesaid, I find no force in this civil misc. appeal and the same is dismissed.