Allowed

Durga v. Smt. Sangiyano Died Through Legal Heirs Smt. Ompati

Chhattisgarh HC6 May 2022MCC/727/2017

Case brief

AI extract

What is this about?

This judgment deals with condonation of a 1232-day delay in filing an application for restoration of a Second Appeal dismissed as abated due to the death of a respondent. The single judge allowed the application, condoned the delay, set aside abatement, restored the appeal, and permitted substitution of legal heirs.

What did the court decide?

IA No.01 allowed; delay condoned; abatement set aside; Second Appeal restored; legal representatives to be substituted on or before 31.05.2022; costs of Rs.1,000 awarded to respondent counsel.

Durga Vs Smt. Sangiyano Died Through… — Pension and Retirement Benefits | Chhattisgarh HC (2022)

MCC-727-2017

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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MCC No. 727 of 20 17

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Durga S/o Budhram Gond, Aged About 45 Years R/o Village Parvatipur, P.S. And Tahsil Surajpur, District Surguja, Chhattisgarh

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---- Applicant

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Versus

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Smt. Sangiyano (Died) through Legal Heirs Smt. Ompati W/o Raghu Singh, D/o Sevbalak Gond, Aged About 55 Years, By Caste Gond, R/o Village Nawaparakala, P.S. And Tahsil Premnagar, District Surajpur, Chhattisgarh

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State Of Chhattisgarh, Through Collctor, Surguja, District Surguja, Chhattisgarh, Now Surajpur, District Surajpur, Chhattisgarh, District : Surajpur, Chhattisgarh

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---- Non-applicants

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For Applicant : Mr. Vidya Bhushan Soni, Advocate For Respondent No.1 : Mr. Lekhram Dhruw, Advocate For Respondent No.2 : Mr. Somya Rai, Panel Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal Order On Board

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06.05 .2022

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Heard on IA No.01, which is an application for condonation of delay in filing the present MCC as well as on main application.

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The present MCC has been preferred by the applicant under Order 41 Rule 19 read with Order 22 Rule 9 of CPC, seeking restoration of Second Appeal No.521 of 2003 and setting aside abatement.

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Second Appeal No.521 of 2003 was dismissed as abated by order dated 27.03.2014 for not bringing legal representatives of deceased respondent No.01- Smt. Sangiyano on record.

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Learned counsel for the applicant submits that the applicant is a member belonging to Scheduled Tribe community and is poor rustic villager who lives in

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MCC-727-2017

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Page 2 of 4

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remote area of District Surajpur and due to poverty and lack of legal knowledge he could not inform the counsel about the death of Smt. Sangiyano within the period of limitation and meanwhile appeal was listed and on account of not bringing legal heirs of deceased respondent No.1- Smt. Sangiyano on record the appeal was dismissed as abated. However, as soon as applicant came to know about dismissal of the appeal, he contacted the counsel and filed this application on 21.09.2017, as such, delay in filing the present application be condoned, abatement be set aside, second appeal be restored and applicant be permitted to substitute legal heirs of the deceased- Smt. Sangiyano in the second appeal.

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On the other hand, learned counsel appearing for the respondent No.01 opposed the submissions made by learned counsel for the applicant and submits that there is deliberate delay on the part of the applicant to substitute legal heir of the deceased- Smt. Sangiyano, thus, the second appeal has been rightly declared as abated and the present application deserves to be dismissed at the threshold.

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I have heard learned counsels for the parties, considered their rival submissions made hereinabove and also went through the record with utmost circumspection.

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True it is that Smt. Sangiyano died on 04.11.2009, which fact came to the notice of this Court on 08.01.2014 and for not bringing legal representatives of deceased- Smt. Sangiyano the second appeal came to be dismissed as abated by order dated 27.03.2014 and, thereafter, this application for restoration of second appeal and setting aside abatement has been filed on 21.09.2017 with delay of 1232 days.

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Admittedly, there is huge delay in filing the present application, but the

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MCC-727-2017

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Page 3 of 4

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Supreme Court in the case of Banwari Lal (D) by LRs and another vs. Balbir Singh¹ with reference to setting aside abatement has said that it has to be construed liberally and has held as under:

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“10. Provisions of Order XXII 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, (2003) 3 SCC 272, a Five Judge Bench of this Court held as under:-

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“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…” (Underlining added)”

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Now reverting to the facts of this case in the light to the principle laid

1 AIR 2015 SC 3573

MCC-727-2017

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down by their Lordship in the case of Banwari Lal (supra) it is quite vivid that the case of the applicant is that he is a member belonging to Scheduled Tribe community and is a poor rustic villager, who lives in Village Parvatipur which is a remote area of District Surajpur and on account of his poverty and lack of legal knowledge he could not inform the counsel engaged about the death of Smt. Sangiyano within the period of limitation and, therefore, the second appeal was dismissed as abated on 27.03.2014 for not bringing legal heirs of Smt. Sangiyano on record and it was also not informed by the counsel appearing on behalf of the applicant/appellant, as the Court has granted time to file application for substitution.

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After going through the additional affidavit filed on behalf of the applicant on 30.03.2022 and in view of the principle laid down by their Lordship in the case of Banwari Lal (supra) , I am of the considered opinion that sufficient cause has been shown for condoning the delay in filing the present application, for setting aside abatement and for restoration of second appeal.

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Accordingly, IA No.01 is allowed . The delay of 1232 days in filing the present application is hereby condoned and abatement is set aside. Second Appeal No.521 of 2003 is restored to its original number for hearing in accordance with law subject to payment of cost of Rs.1,000/- (Rupees One Thousand Only) to the learned counsel for the respondent No.1 and filing proof thereof before this Court. The applicant is permitted to substitute legal representatives of Smt. Sangiyano in second appeal on or before 31.05.2022.

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The MCC is allowed .

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Sd/- (Sanjay K. Agrawal) Judge

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s@if

Durga v. Smt. Sangiyano Died Through Legal Heirs Smt. Ompati

Case brief

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Durga v. Smt. Sangiyano Died Through Legal Heirs Smt. Ompati

Case brief

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