- (1.) THIS is a second appeal under Section 331 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and order, dated 13-9-1993, passed by the learned Additional Commissioner, Varanasi Division, Varanasi in Appeal No. 164/25 of 1985, abating the appeal in respect of the deceased Respondent No. 1, Man while proceeding with the same in respect of other respondents, fixing 5-10-1993 for hearing.
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Matru instituted a suit under Section 229-B of the Act against the defendants, Man etc. for declartion of his rights was co- tenant along with the defendants second set, disclosing the family pedigree. On notice, the defendants contested the suit, denying the allegations. The learned trial Court after completing the requisite trial, dismissed the suit of the plaintiff, vide its judgment and decree, dated 19-9-1995. The plaintiff went up in appeal before the learned Additional Commissioner, during the pendency of which, the Respondent No. 1 Man died and the appellant moved as substitution application for substitution of his heirs. The learned Additional Commissioner after hearing the parties concerned, vide his order dated 13-9-1993, abated the appeal in respect of the Respondent No. 1, Man and ordered the appeal to continue against the remaining respondents, fixing 5-10-1993 for hearing. It is against this order that the instant second appeal has been preferred by Matru before the Board. I have heard the learned Counsel for the parties and have also perused the record, on file. Assailing the impugned order, the learned Counsel for the appellant contended that the learned Court below was wrongly and illegally refused to condone the dealy in filing the substitution application, as the same has very satisfactorily explained in the affidavit, filed by the appellant along with the substiution application and therefore, its order is grossly unjust and arbitrary; that since no reason whatsoever has been given for not believing the affidavit filed by the appellant, the impugned order is irrational; that the learned Court below has grossly erred in ignoring the settled principles of law that the Court should take liaberal view in the matters of condonation of dealy under Section 5 of the Indian Limitation Act; that since the appellant has proved to the hilt about the ignorance of the death of Man, the learned Court below ought to have given its finding on the aforesaid fact as to whether or not the same is incorrect and therefore, the impugned order is no order in the eyes of law; that in any view of the matter, the learned Additional Commissioner has not applied his mind to the facts and circumstances of the instant case and has wrongly and arbitrarily abated t he appeal in respect of the deceased respondent, Man, which cannot be allowed to sustain, at any stretch of imagination and therefore, this second appeal very richly deserves to be allowed. The learned Counsel for the respondent, in reply, urged that no second appeal lies against the impugned order and that in the facts and circumstances of the instant case, the learned Court below was perfectly justified in refusing to condone the delay in filing the substitution application and rendering the impugned order and therefore, this second appeal, having no force, very righly deserves dismissal outright. I have closely and carefully considered the arguments, advanced before me, by the learned Counsel for the parties and have also scanned the record on file. At the very outset, it is not out of place to mention here that it is the settled principle of law that Courts should always adopt an attitude in favour of hearing and not to shut it out. It is also the law of the land that endeavour of the Courts should always be in favour of decision on merits of the case and not on technical grounds. In the instant case, after the death of Man, Respondent No. 1, the appellant moved an application for his substitution along with an application under Section 5 of the Indian Limitation Act and an affidavit in support of his claim, contending that since he was serving in the Hindustan Aluminium Limited at Renukoot, he could not know of the death of the deceased Respondent No. 1, Man and when it came to his notice, he promptly applied for his substitution. This application was contested by the otherside, inter-alia, pleading that since the deceased was the real brother of the appellant, it cannot be believed that he had no information about his death. The learned Additional Commissioner has refused to believe the facts, narrated in the affidavit and therefore, did not condone the delay in filing the substitution application. It is noticeable here that since btoh, the plaintiff and the deceased brother, Man were litigating each other before the Court of law and were at daggers drawn position, the plainitiff cannot be expected to have information about his death, especially when he was in service outside the place of death and therefore, in my considered opinion, the delay in filing the substituion application ought to have been condoned and technicalities should not have come in the way of decision of the case, on mertis, as per the settled principle of law that justice should not be denied on mere technicalities and therefore, I am of the view that the sub stitution application ought to have been allowed by the learned Court of first appeal and as such, this second appeal deserves to be allowed. Needless to say, since the instant first appeal is one of the oldest pending cases, the learned Additional Commissioner shall dispose of the same expeditiously, on merits, after hearing the parties concerned.
(3.) CONSEQUENTLY, this second appeal is, accordingly, allowed, the impugned order passed by the learned Additional Commissioner is set aside the dealy is condoned the substitution application in question subject to payment is hereby allowed of Rs. 300/- (Rs. three hundred ) and the first appeal is hereby remanded to the learned lower appellate Court for decision, on merits, according to law, after affording an opportunity of being heard, to the parties, concerned. Let records be returned forthwith, to the Courts concerned. Parties to appear before the Court concerned on 16-4-2003. Appeal allowed. .;