SANJAY KUMAR DWIVEDI,J. - (1.) This interlocutory application has been filed for granting leave to the appellant to pursue this Second Appeal.
(2.) Mr. Sahay Gaurav Piyush, learned counsel for the appellant submits that during the pendency of the appeal in the court below, the sole appellant died and inadvertently her legal heir/successor was not brought on record in the court below. However, the judgment was delivered after the death of the appellant that is why this Second Appeal has been filed by the legal heir/successor of the sole appellant. He further submits that similar issue was considered by the Hon'ble Supreme Court in the case of Banwari Lal (dead) by legal representatives and another v. Balbir Singh , reported in (2016) 1 SCC 607.
(3.) Paragraphs 8 to 11 of the said judgment are quoted herein below: "8. Since no steps were taken to bring on record the legal representatives of late Banwari Lal either in the first appeal or in the second appeal, the appellants have filed CM No. 1998 of 2012 (under Order 1 Rule 10 CPC read with Section 151 CPC) to implead (i) Shakuntala; (ii) Gaurav; (iii) Rachna; and (iv) Manju. Civil Procedure Code Order 22 stipulates the manner in which the legal representatives of the plaintiffs or the defendants ought to be brought on record. The prescribed procedure cannot be circumvented by filing application under Order 1 Rule 10 CPC read with Section 151 CPC. However, in our view, it would be unjust to non-suit the appellants on the ground of technicalities. 9. Provisions of Order 22 CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta, a five-Judge Bench of this Court held as under: "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice." (emphasis supplied) 10. In Sital Prasad Saxena v. Union of India, it was observed that the rules of procedure under Order 22 CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order cannot be sustained. 11. In the result, the impugned order is set aside and this appeal is allowed and the following directions are issued: 11.1 Necessary applications were filed to bring on record the legal representatives of Appellant 2 Swaraj. Since the suit is of the year 1986 and the second appeal is of the year 2008 and in the interest of justice, Applications Nos. 6342 of 2008 (for stay), 11811 of 2009 (for condonation of delay), 11812 of 2009 (under Order 22 Rule 9 CPC) and 11813 of 2009 (under Order 22 Rule 3 CPC) are allowed and legal representatives of Appellant 2 Swaraj are ordered to be brought on record. 11.2 CM No. 1998 of 2012 filed under Order 1 Rule 10 CPC is treated as an application under Order 22 Rule 3 CPC. The legal representatives of late Banwari Lal viz. (i) Shakuntala; (ii) Gaurav; (iii) Rachna; and (iv) Manju are ordered to be brought on record and the application is allowed. 11.3 RSA No. 100 of 2008 on the file of the High Court is ordered to be restored. Memorandum of the second appeal be suitably amended and amended memo of appeal shall be filed before the High Court within four weeks. The High Court shall afford sufficient opportunity of hearing to both parties and shall dispose of the second appeal in accordance with law as expeditiously as possible." ;