Jainendra Kumar Ranka, J. - (1.) An application u/Ord.22 Rule 3 (2) read with Section 151 CPC for abatement of appeal came to be submitted on behalf of the respondent inter-alia bringing to the notice of the Court that the sole appellant-Dau Dayal expired on 09.07.2005 and no steps in this regard have been taken either by the legal heirs of the deceased appellant or by the counsel for the appellant and it was contended that the appeal is liable to dismissed as having been abated long back.
(2.) It is then thereafter that application u/Ord. 22 R.3 read with O.22 R.9 CPC and Section 5 of the Limitation Act, 1963 came to be submitted by the legal heirs of the appellant on 15.02.2016 inter-alia admitting the factum of death of deceased Dau Dayal on 09.07.2005 and it was contended that the right to sue survives upon the legal heirs. It was also submitted that the applicants were not at all aware of pendency of the Civil Second Appeal as their father-Shri Dau Dayal himself was looking after the case and none were aware and on receipt of the application which was provided by the counsel for the respondent of abatement of the appeal, the counsel for appellant sent a letter on the address of the deceased-appellant without further delay in the first week of February, 2016. On having noticed and brought to the notice about pendency of the appeal, the applicant-Shri Hari Shankar S/o Dau Dayal contacted the counsel at Jaipur and got the application prepared and filed immediately. It is further contended that the application is within time from the date of knowledge about pendency of appeal and the delay in filing the application for substitution is bonafide and deserves to be condoned and the abatement, if any, deserves to be set aside and the aforesaid legal representatives deserves to be substituted in place of appellant in the interest of justice which is supported by an affidavit.
(3.) Counsel for the respondent contended that the legal heirs themselves ought to have filed an application within time prescribed under the law and after more than 10 years, the application came to be filed which cannot be considered and the appeal has abated long back and deserves to dismissed at the threshold. Counsel contended that it cannot be said that none in the family of the appellant would be knowing about the litigation which was pending for years together, particularly when more than 11 legal heirs have been shown including the wife and three sons and even a son Shri Hari Shankar, who is said to have filed his affidavit, he is shown aged 55 years and it cannot be understood that a large family of the deceased-appellant may not be aware of such a litigation being pending in this Court and contended that the appeal deserves to be dismissed as having been abated. Counsel also contended that on identical facts, the Apex Court as well as this Court repeatedly has held that the delay can be condoned if appears to be reasonable but not a delay of more than 10 years. Counsel relied upon Judgment of the Apex Court in the case of Balwant Singh (Dead) Vs. Jagdish Singh and Others, 2010 8 SCC 685, Jeevan Lal Vs. Thakurji Shri Jagan Nathji Maharaj Brajman Mandir Shri Jagannathji & Ors. in (SB Civil Second Appeal No.298/1996) decided on 22.09.2016 & Jagdish Prasad Chaudhary Vs. Nathu Lal & Ors. Decided on 08.09.2016 in (SB Civil Second Appeal No.34/2000).;