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Judgment
M. Sharma, J.—This application under Order 22 Rule 3 and u/s 151 of the CPC for amending the cause title of the Civil Revision No. 17 of 1983 along with a condonation petition for substituting the original opposite party by his heirs, has arisen under a peculiar course of event.
The original Plaintiff, Jugal Kishore, who was opposite party in appeal died during the pendency of appeal before the Assistant District Judge and his legal representatives has been brought on record by order dated 11.3.81. But the lower appellate court dismissed the appeal preferred by the present revision Petitioner by confirming the trial Court''s judgment. Against that judgment of the lower appellate court, the present Revision Petitioner preferred a revision petition before this Court.
The Revision before this Court was admitted and execution stayed, but by mistake, deceased Jugal Kishore was shown as the Respondent instead of his legal representatives. But all the heirs of Jugal Kishore entered appearance and filed Vakalatnama on 11.8.83 in the Civil Revision. On information by the office, the Petitioner''s Advocate came to know about the mistake as he was not informed by the Petitioner earlier and on examining the Vakalatnama and going through the case record came to learn for the first time that the original Plaintiff Jugal Kishore and expired during the pendency of the appeal and his heirs were duly substituted. To rectify the mistake the counsel lifted to make contact with the Applicant, bat as be was lying ill at Calcutta he could not be contacted and consequently formal substitution was delayed. Hence this application under Order 22 Rule 3 with a petition for condonation of delay u/s 5 of the Limitation Act being Misc. Case No. 370/87 and Misc. Case No. 369 of 1987 respectively.
These applications have been streneously opposed by the learned Counsel for Respondents Mr. D.N. Barua. His contention was that the revision against the dead man being a nullity, and an application u/s 22 Rule 3 can not stand. He submitted that the application for condonation of delay for substitution further aggravated the Petitioners claim as inordinate delay in filing the condonation petition has been explained to satisfy the court and lack of diligent and, negligence on the part of the Appellant can not be taken technically by the High Court to consider such applications. He further submitted that in this instant case an application under Order 22 and Section 5 of the limitation Act, court can not amend the defects where the Applicant apparently failed to satisfy the court with sufficient seasons of the delay. In support of Lift contention Mr. D.N. Baruah, learned Counsel for the Respondents referred some decisions to substantiate his submissions. Mr. Baruah referred AIR 1961 Cal 417 S.C. Chakravarty v. J.N. Singh Roy wherein the Respondent died after filing the appeal and in appeal substitution was sought to be nude after filing the Memo of appeal. It is held that the court can not allow the cause title to be amended by entering the names of the legal representatives of the dead man u/s 153 of the Code of Civil Procedrure where the Respondent had died before the presentation of the Memo of appeal, as the case is not one of more addition of parties, but is in substance a case where an appeal is being filed against the legal representatives of the dead party on the day on which the application for adding him as party Respondent to the appeal is filed. Section 153 can not be invoked by a party who is guilty of laches to cover up his default. The power thereunder can be executed by the Court in a case where the defect or error" which would vitiate the proceeding is not due to a party''s default. A negligent party can not ask the court to allow laches and rectify the defects.
Mr. Baruah further referred the decisions in AIR 1963 Tripura 44 Abdul Wahed v. Shukdev Wasti wherein the court held that the revision petition against a dead person is a nullity and no question of Substuting the names of the legal representatives in place of the deceased person arises at all, Order XXII. CPC will not apply to such a case. A revision petition against a dead person is void and of no legal effect. If the memo of revision petition is sought to been amended, it will mean, even if amended, that a fresh revision petition is filed on the date of the amendment against the legal representative of the deceased person, Where the application for amendment is barred by limitation and the Petitioner had knowledge of the death even ID the trial court before passing of the order or decree complained against no question of condonation of delay can arise at all u/s 5 of the Limitation Act, The court further viewed that Section 153 can not also apply to such a case because there is no proceeding before the court. It is only in a proceeding before the court that an amendment can be made u/s 153 Code of Civil Procedure. But in the facts and circumstance of the present case the view is not applicable, as in the case, during the pendency of the appeal, the deceased Respondent was substituted and accordingly, the memo of appeal before the ''lowed court was amended.
The Anr. reference made by Mr. Baruah in Karim Ismail Vs. Abdul Rahiman, relates to Section 5 of the Limitation Act wherein the plea of limitation was taken first in'' appeal In this case the point was that the delay was barred by the law of limitation. It is to be noted that in the trial court, the plea of limitation was not taken by the Defendant and therefore this case has no bearings with the present case.
On the point of the applicability of Section 5 of the Limitation Act in respect of substitution Mr. Baruah referred Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd., and The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, wherein the Apex Court held that failure to account for non diligence during the whole period of limitation prescribed for the appeal does not disqualify him from praying for the condonation of delay u/s 5 and in The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, it held that if a party bad acted on any particular manner on a wrong advice given by legal advisor he can be held guilty of negligence so as to entitle the party to plea sufficient cause u/s 5.
Mr. Baruah further referred Asi Bai Vs. Gomathi and Others, wherein the court held that in deciding what is sufficient cause for delay in filing the appeal, the true guide is whether the Appellant has acted with reasonable diligence in prosecution fat his appeal. In this case the High Court relied on AIR 1917 P.C. 156 wherein P.C, laid down a general rule for the exercise of the judicial discretion u/s 5 of the Limitation Act to admit for a "sufficient cause" an appeal which would otherwise be barred by limitation. The P.C. observed that the Appellant ought to have deemed to have acted, where, after deducting the time spout in prosecuting with due diligence a proper application for receive of judgment, the period between the date of the decree appealed from and the date of the presenting the appeal does not exceed the period prescribed for preferring an appeal, The gist of submissions of Mr. Baruah was that this Court has no jurisdiction to allow the Appellant to amend the Memo of appeal even if there la sufficient cause. Applicants'' failure to Show sufficient cause for delay and the cause shown as a fault if the lawyer can not be accepted as It was the seer negligence and lack of diligence of the Applicant Who was a literate man and a long period of time of not taking steps was not satisfactorily explained and the mistake in filing the revision against the dead person is not bonafide. His further submission is that, Section 153 of the CPC has no application if the Applicant can not show sufficient cause to satisfy the court for condonation of delay, That the petition under Order XXII was accompanied with a petition for deciding the abatement was not filed within the prescribed period of 60 days, that the Applicants relief lies only in filing a fresh revision petition subject to the limitation to file such application. In view of the Apex Court''s decision, those arguments of Mr. Baruah is not tenable, It is true, that in such a situation the revision petition cannot proceed further but the Applicant had the right to file the petition under Order XXII to substitute the Respondents if he is able to show that ha had sufficient cause to file the application. 11 that is so, he can likewise be permitted to rectify the defects for properly amending the revision petition if he can show good cause u/s 5 of the Limitation Act.
On the other hand Mr. A. Roy, learned Counsel for the Petitioner to substantiates his argument referred Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, Ramjeewan Vs. Chand Mohammed, In the S.K. Viswabrain''s case (sic) the view of the Apex court was that court should adopt a liberal view and justice oriented approach and further held that High Court erred in dismissing the appeal on hyper technical ground of bar of limitation. The Apex court further held that the legislature has conferred the power to condon delay by enacting Section 5 of the Limitation Act in order to enable delay by court to do substantial justice to Parties by disposing of matters on ''merits''. The expression ''sufficient cause'' employed by the legislature is adequately elastic to enable the courts to apply the low in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of the Court. In Ramjeewan Vs. Chand Mohammed, the Rajasthan High Court, in a similar case, held that Section-153 CPC empowers the courts to allow any defect or error in any proceeding in a suit the reference can be an amendment. In the case of suit the reference can be allowed to be intended, If the amendment is made within the period of limitation. In the case of appeal, the amendment can be permitted even beyond limitation if the Appellant can bring his case within the meaning of Section 5 of Limitation Act. I respectfully agree with this view of the Rajasthan High Court.
After perusing the words and bearing the arguments of both sides I find that the mistake on the part of the revision Petitioners cannot be taken unamenable as this fact of mistake was minimized when the legal heirs of the original Petitioner appeared in the Civil Revision No. 17 of 1983 by filling Vakalatnama further as the deceased Jugal Kishore was substituted in the appeal and heirs of the deceased contested the appeal it can not be held that the legal heirs were not substituted at all. The mistake in the Revision petition showing the deceased person as Respondent can be rectified because the Revision Petitioner explains the circumstances under which he has to file the Revision petition and I do not find to doubt his contentions. The apex Court guideline in (1987) S.C.C. 107 (Supra) (sic) clearly applicable in this case and in the facts and circumstance of this case, I am satisfied that sufficient cause exists for the delay.
In view of the above discussions I hold that the Appellant bas been able to make out sufficient cause about the peculiar course of events faced in filing the amendment petition for substitution of the legal representatives of deceased Jugal Kishore. The delay accordingly condoned and Applicant is allowed to amend the cause, title of the Revision Petition. No. 17 of 1983 and bring on record the names of the legal representatives who already made their appearance by filling Vakalatnama in the Civil Revision No. 17 of 1983.
Accordingly the application are allowed.