A.K.Banerji - (1.) THIS revision has been filed by one of the defendants against the judgment and order dated 8-10-1992 passed by the XIII Additional District Judge, Agra allowing a substitution application filed by the plaintiff-opposite party and permitting consequential amendment in the plaint.
(2.) BRIEFLY stated the facts so far as relevant for the purposes of the present revision are that the plaintiff Murari Lal Singhal has filed a suit for partition of the properties in Suit, a declaration and for rendition of accounts together with other consequential reliefs The suit was filed against Babu Lal Singhal and others who are interse coming from their common ancestor Bihari Lal Modi. Bengali Mal Singhal, who was arrayed as defendant no. 2 in the Suit, died on 4-8-1989 during the pendency of the Suit. The sons of the deceased defendant were already on record of the Suit. On 15-1-1990 the defendant-applicant filed an application before the trial court stating that the defendant no 2 had died on 4-8-1989 but no application for substituting his heirs was filed and, therefore, the Suit deserved to be abated against him After this application was filed the plaintiff on 29-1-1990 filed an application purporting to be under Order 22 Rule 4 CPC for substitution duly supported by affidavit In this application and affidavit it was stated by the plaintiff that the sons of the deceased defendant no. 2 were already on record as defendants no, 8 to 13 and apart from the sons the widow of the deceased and two daughters were also the heirs and legal representatives who should be substituted as defendants no 2/1 to 2/3 in the Suit. It was further stated that the courts were dosed due to lawyers' strike from 28-7-1989 to 10-12-1989 and after the strike the case was luted for the first time on 29-1-1990 on which date this application was filed. The reason for the delay in filing the application was given that the plaintiff was unable to ascertain the addresses of the proposed heirs no. 2/2 and 2/3 earlier than 27-1-1990 and it was prayed that the delay. if any, which was for the said reason, may be condoned. It was also prayed that the application be allowed and the consequential amendment may be allowed to be incorporated in the plaint. This application was initially allowed by the trial court on 1-4-1991. Thereafter the defendants filed an application for setting aside the order dated 1-4-1991 stating that the said order was an exparte order and an opportunity may be given to the defendants to contest the substitution application filed by the plaintiff. After the parties had exchanged counter and rejoinder affidavits, the matter was ultimately heard by the trial court which, as already stated above, by order dated 8-10-1992 allowed the substitution application and by implication rejected the applications filed by the defendants for recalling the earlier order and rejecting the substitution application. Aggrieved by the said order the defendant-applicant, Virendra Kumar Singhal has filed the present revision before this Court. I have heard Shri Santosh Kumar, learned counsel appearing for the defendant-applicant and Shri Sushil Harkauli, appearing for the plaintiff-opposite party, who had filed a caveat in this revision. With the consent of learned counsel for the parties I am disposing of the revision finally at the admission stage itself. The first submission of the learned counsel for the applicant is that the defendant no. 2 died on 4-8-1989 and the application for substitution was filed on 29-1-1990 after more than 150 days, the Suit has therefore, abated automatically against the defendant no. 2. Alongwith the substitution application which was filed by the plaintiff-opposite party much beyond 150 days no separate application under section 5 of the Limitation Act for condoning the delay and no application under Order 22 Rule 9 CPC for setting aside the abatement had been made and, therefore, neither the abatement could be set aside nor the substitution application could be allowed by the court below. It was further contended by the learned counsel that the Suit being for partition, assuming that the sons of the deceased defendant were already on record, the widow and the daughters were also the necessary parties and without them the estate will not be deemed to be represented. Hence, according to the learned counsel the Suit will have to abate as a whole. The second contention of the learned counsel is that each day's delay had to be explained which was not done by the plaintiff-opposite party and the court below has not applied its mind to this aspect of the matter and allowed the application mechanically without even discussing the objections filed by the defendants. It is. therefore, fit and proper that this Court should interfere in Its revisional jurisdiction and set aside the said order.
(3.) SO far as the first submission of the learned counsel for the applicant is concerned, I have perused the application dated 29-1- 1990 and the supporting affidavit filed by the plaintiff-opposite party for substituting the widow and the two daughters of the deceased defendant. The plaintiff had given reasons for not filing the application within the statutory period. It has been stated in paragraph 7 of the affidavit that the courts were closed from 28-7-1989 to 10-12-1989 due to lawyers' strike and since the plaintiff was not aware of the addresses of the daughters of the deceased defendant prior to 27-1-1990 the application could not be filed before 29-1-1990 which was the date fixed In the case after the strike was over. In paragraph 8 of the affidavit it was prayed that the delay in filing the application deserved to be condoned. It is apparent, therefore, that the prayer for condoning the delay was there in the application for substitution filed on 29-1-90. I am of the view that in the facts and circumstances of the case no separate application under section 5 of the Limitation Act was required. It was held by this Court in the case of Shakuntala Devi v. Banwari Lal, AIR 1977 ALL 551, relying upon a decision of the Punjab High Court reported in AIR 1959 Puj. 646 and a decision of this Court reported in AIR 1936 All 666 that the procedure is meant for advancing and not for obstructing the cause of justice. The language of section 5 does not provide that an application In writing must be filed before relief under the said provision can be granted. SO far as the submission that since no application under Order 22 Rule 9 CPC for setting aside the abatement is concerned, it has been held by this Court In the case of Sri Ram Prasad v. State Bank of Bikaner, AIR 1972 All, 456, that in cases where an applicant applies for condoning the delay and for bringing on record the Segal representatives the prayer for setting aside the abatement is implicit in the prayer for substitution. The said contention of the learned counsel for the applicant has, therefore, no force. SO far as the contention of learned counsel that the Suit being primarily a suit for partition the widow and the daughters of the deceased defendant were necessary parties, is concerned, in the facts of the present case, since the plaintiff had taken the precaution of filing the substitution application for substituting even the widow and the daughters of the deceased defendant which has been allowed by the court below, this submission of the learned counsel also loses force. Learned counsel, however, placed strong reliance upon the decision of the Rajasthan High Court is the case of Bhanwar Lal v. Bhuli Bal, AIR 1972 Raj. 203, In this case one Mohan Lal and his mother Smt. Bhuli Bai had filed a suit under Order 21 Rule 63 CPC for declaration that the decree in execution of which the property was sold is Inoperative and ineffective against the plaintiffs. The suit was decreed and the defendant-auction purchaser filed an appeal. During the pendency of the appeal Mohan Lal died. A belated application was filed for substituting the widow and the son and daughter of the deceased. The substitution application was contested by the plaintiff on which the appellant withdrew the substitution application. At the time of final hearing the respondent raised a preliminary objection that the appeal has abated for sot bringing on record the legal representatives of the deceased respondent Mohan Lal. On behalf of the appellant it was contended thai the father of Mohan Lal namely, Bal Mukund was the Manager and Karta of the joint Hindu family and he represented the interest of the deceased Mohan Lal. in the alternative it was argued that the mother of the deceased Mohan Lal was the respondent no. 1 in the appeal and if one of the heirs of the deceased was on record in any capacity there could be no abatement as the estate was represented. On these facts the Rajasthan High Court had he'd that the Karta of the Joint Hindu family could not represent the heirs of ths deceased Mohan Lal. With regards to the alternative submission that the estate of the deceased was represented through his mother who was already on record in a different capacity, the Court held that there was a joint decree in favour of Mohan Lal and his mother by the trial court against which the appeal had been filed and since the legal representatives of the deceased Moha* Ltd were not brought on record by filing any application and the application made earlier was withdrawn, the appeal would abate. In the present case before me the facts are entirely different. The plaintiff in this case had filed an application for substituting the widow and the daughters of the deceased and praying for condonation of delay and the court has allowed the said application; the delay has been condoned and the abatement. If any, has been impliedly set aside. Besides, in the case before the Rajasthan High Court there was already a joint decree in favour of the deceased and his mother. Here such is not the case. The suit is at the trial stage. Further, it has been held In the case of Mahavir Prasad v Jagey Ram, AIR 1971 SC 742, that where in a case a party dies and one of his legal representatives is already on record In another capacity it Is only necessary that he should be described by an appropriate application made in this behalf that he is also on record as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceedings will not abate I am, therefore, of the opinion that the suit in the present case will not abate. So far as the next submission of the learned counsel for the applicant that each day's delay has not been explained and the plaintiff has given no explanation as to why the application was not filed Immediately after the courts reopened on the conclusion of the strike is concerned, it has already been seen that the explanation for the delay had been given by the plaintiff. It had been stated in the application and the affidavit that the plaintiff was not aware of the addresses of the daughters of the deceased defendant II may be noticed that both the daughters of the deceased defendant were married and were living at different places. If, therefore, the plaintiff was not aware of their addresses and for that reason was unable to move the application immediately after the conclusion of (he lawyers' strike it can not be said that the explanation could not be accepted or the same was unbelievable. Apparently, the trial court has accepted the said explanation. Learned counsel for the applicant, however, contended that the trial court has not given any reasons for condoning the delay or to show that it was satisfied by the cause shown by the plaintiff. In other words, ha contended that the trial court has not applied its mind to the facts and to the grounds raised in the objection and as such the order of the trial court should be set aside. I am unable to agree with the submission of the learned counsel. Even though the trial court has not said in so many words that it was satisfied with the explanation given by the plaintiff for condoning the delay, from the order passed by the court below it is evident that it has considered the explanation given by the plaintiff and has specifically referred to the same in its order and has, therefore, allowed the substitution application after being satisfied with regards to the cause shown for the delay. In this connection it will be relevant to refer to the decision of the Supreme Court in the case of Collector, Land Acquisition, Anatnag v. Mst. Katiji, AIR 1987 SC 1353. It has been observed as follows :- "Every day's delay must be explained" does not mean that pedantio approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner ......When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserve;, to be preferred for the other side can not claim to have vested right in injustice being done because of a non-deliberate delay.......There is no presumption that the delay has occasioned deliberately, or on account of culpable negligence, or on account of malaiides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk......It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so " I am in respectful agreement with the observations of the Division Bench of our Court in the case of Smt. Pari Bai v Bhagat Ram, AIR 1977 All. 549, that a court of law can not require a person to explain the delay with mathematical precision. The trial court has accepted the explanation given by the plaintiff and I see no reason to interfere with the said finding of the trial court Learned counsel for the plaintiff-opposite party has relied upon a decision of this Court in the case of Brij Gopal sharma v. Jagdish Nath Sharma, 1970 ALJ 1117, and has contended that a partition suit should not proceed without all parties Interested in the property being before the court to enable the court to pass an effective decree and no rule of limitation has been pointed which might prevent a court from impleading a person or persons who shares in the property which is the subject matter of a suit for partition. In this case the Court had gone to the extent of holding that assuming that the plaintiff's application for impleading the heirs of deceased respondent in an appeal arising out of a partition suit had been filed beyond time, there was nothing to prevent the heirs of that respondent from applying to be impleaded as parties to the appeal whilst it was still pending and there was nothing to prevent the Judge from accepting such a prayer in order to enable him to effectively and fully adjudicate upon the controversy before him. It was held that in a suit for partition the considerations applicable are substantially different from considerations that apply to suits of other nature. It is well settled proposition of law that no decree for partition can be made in the absence of any co-sharer interested in the property and the widow and the daughters of the deceased respondent in that case being the heirs and legal representatives had been rightly impleaded. Learned counsel also contended that the court below having condoned the delay and apparently being satisfied that sufficient cause was shown, this Court should not interfere with the said order in its revisional jurisdiction. I find sufficient force in the contention of the learned counsel. It has been held by the Supreme Court in the case of Manindra Land and Building Corporation United v. Bhoothnath Banerjl, AIR 1964 SC 1336, that the question whether there was sufficient cause is exclusively within the jurisdiction of the court and the court can decide it rightly or wrongly. In that case an application under Order 22 Rule 9 (2) for setting aside the abatement of the suit was made beyond the prescribed period. The trial court held that the plaintiff was prevented by sufficient cause and set aside the abatement. In revision the High Court had disagreed and held that the plaintiff had failed to make out any good cause for the delay. The Supreme Court held that the trial court had jurisdiction to determine whether there was sufficient cause for the plaintiff for not making the application for setting aside the abatement in time, and if so satisfied to admit it, the High Court fell in error in interfering with that finding of fact;