The Division Bench rejected an application seeking to recall an order dismissing a civil appeal for abatement due to the respondent's demise, finding no merit in the claim of lack of knowledge or reasonable delay in filing substitution applications.
The application to recall the order dated 17.09.2013 and set aside the abatement was rejected.
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{1} DB CIVIL MISC. APPLICATION NO.245/2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
JUDGMENT
D.B. CIVIL MISC. APPLICATION NO.245/ 2013 IN D.B. SPECIAL APPEAL(CIVIL) NO.63/ 1997 HANS RAJ Vs. GOPI VALLABH
DATE:06.12.2013
HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Mr. Amit Jindal, for the applicant/ appellant. ****
BY THE COURT (PER HON'BLE THE CHIEF JUSTICE):
Heard Mr. Amit Jindal, the learned counsel for the applicant.
The factual background, in short, is that the applicant had preferred an appeal before this Court being D.B. Special Appeal (Civil) No.63/ 1997, challenging the judgment and order dated 28.05.1996 passed by the learned Single Judge in S.B. Civil First Appeal No.108/ 1980. It has been contended that one Gopi Vallabh is the sole respondent, who expired on 30.12.2011. Meanwhile, the execution petition had been filed by him. Thereafter, an application was filed before the learned Executing Court on 01.10.2012, mentioning about his demise and seeking substitution of his heirs and legal representatives in his place.
The aforementioned appeal i.e. D.B. Special Appeal (Civil) No.63/ 1997 had, in the meantime, been dismissed for non-prosecution.
{2} DB CIVIL MISC. APPLICATION NO.245/2013
The same was, however, restored on 30.07.2013. Subsequent thereto, on
17.09.2013 the appeal was listed and the Division Bench noticing that heirs and legal representatives of the deceased-respondent had not been substituted in his place by then, dismissed it for having abated.
The instant application has been filed to recall the order dated 17.09.2013 and to set aside the abatement of the appeal. It has been further stated in the present application that on 19.09.2013, the learned counsel for the applicant, being under the impression that on 17.09.2013 one week's time had been granted to file an appropriate application for substitution of the heirs and legal representatives of the deceased-respondent, in fact, filed such applications on 19.09.2013 under Order 22 Rule 4 and Order 22 Rule 9 of the Code of Civil Procedure (for short, hereafter referred to as 'the Code'). However, as these applications were not listed for quite a long time, he, on inquiries, could come to learn that the appeal had been dismissed on 17.09.2013 for having abated.
The learned counsel for the applicant has urged that as he (applicant) did not have the information of the demise of the sole respondent prior to 01.10.2012, there is no intentional delay in substituting his heirs and legal representatives in the accompanying appeal. As the appeal, meanwhile dismissed for non-prosecution, had been restored on 30.07.2013, applications under Order 22 Rule 4 and Order 22 Rule 9 of the Code, filed on 19.09.2013, are in time and,
{3} DB CIVIL MISC. APPLICATION NO.245/2013
therefore, the order dated 17.09.2013 ought to be recalled and the appeal ought to be restored by setting aside the abatement thereof.
We are not persuaded to accept these assertions. Even
assuming that the applicant, for the first time, came to know about the death of the sole respondent on 01.10.2012, he ought to have taken immediate steps for revival of the appeal and substitution of his heirs and legal representatives therein. In any view of the matter, as contended, the period of limitation for filing the application for substitution of the heirs and legal representatives, cannot be reckoned from 30.07.2013. There is as such no reason assigned to explain the delay from 01.10.2012 to 17.09.2013 to file the application for setting aside
the abatement of the appeal and have the heirs and legal representatives of the deceased-respondent substituted in his place.
In the above view of the matter, we do not see any merit in the instant application, which is, accordingly, rej ected.
In I.A. No.26018/2013
In view of the order passed above, no further order is called
for in this application, It is, therefore, closed.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J.
/ KKC/
Certificate:
All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
KAMLESH KUMAR P.A.
2 issues framed by the court
Whether the dismissal of the appeal for abatement owing to the death of the respondent should be recalled and set aside.
Whether the delay in filing the application for substitution of heirs is explainable.
2 provisions across 1 enactments
Hans Raj
Gopi Vallabh (deceased)
Amitava Roy
Veerendr Singh Siradhana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
