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PETITIONER: MANI RAM AND ANR.

       Vs.

RESPONDENT: HARI SINGH AND ORS.

DATE OF JUDGMENT21/07/1992

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) THOMMEN, T.K. (J)

CITATION:  1992 AIR 1851            1992 SCR  (3) 592  1992 SCC  (3) 501        JT 1992 (4)   177  1992 SCALE  (2)44

ACT:      Code of Civil Procedure, 1908:      Order  22  Rules 3 and 9-Application  for  bringing  on record legal representatives-Delay-Condonation of.

HEADNOTE:      Applications   for   bringing  on  record   the   legal representatives  of  one  of the  appellants  in  a  Regular Second  Appeal, were dismissed by the High Court.   However, the High Court partly allowed the Regular Second Appeal.      The  present appeals have been filed against  the  High Court’s   orders.   It  was  contended  on  behalf  of   the appellants  that  since the decree made was in favour  of  a dead man also, the decree should be set aside.      Dismissing the appeals, this Court,      HELD: 1. Applications under Order 22 Rules 3 and 9 read with  section  151 CPC were made to bring the heirs  of  the deceased  on  record as appellants in the main  appeal  and, since  the appeal was allowed in part, the High Court  ought to  have  considered the applications on  merits.   However, this is not a good ground for setting aside the decree.   At the most, there would be a case for remand; but even that is not  necessary for the applications are  clearly  allowable. There was a delay of 15 days in the application to bring the heirs  on  record  and it was   explained,  supported  by  a medical  certificate,  that  the third  appellant,  who  was looking  after  the  appeals  before  the  High  Court,  has suffered  from typhoid during the relevant  period.  [593-H; 594-A]      Harjeet Singh v. Raj. Kishore & Ors., [1984] 3 SCC 573, relied on.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.  1267 and 1268 of 1978.         From  the  Judgment and Order dated  3.4.78  of  the Punjab &                                                        593 Haryana  High  Court in Regular Second Appeal Nos.  105  and

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601 of 1971.      D.V.  Sehgal,  S.K.  Bagga, Ms.  Shurestha  Bagga,  Ved Prakash Jyani and Seeraj Bagga for the Appellants.      Anil Kumar Gupta for the Respondent.      The Judgment of the Court was delivered by      BHARUCHA, J. The learned Single Judge of the High Court of Punjab & Haryana found no merit in Regular Second  Appeal No.601  of  1971  and  dismissed the  same  with  costs.  He allowed,  to the extent indicated in the judgment and  order under appeal, Regular Second Appeal No. 105 of 1971 with  no order as to costs.      Learned counsel for the appellants fairly stated  that, in  view  of the judgment of this Court in Atam  Prakash  v. state  of Haryana & Ors., [1986] 2 S.C.C. 249, there was  no merit  in  the appeal against the order  on  Regular  Second Appeal No. 601 of 1971.      Learned Counsel for the appellants, however,  contended that the decree made in Regular Second Appeal No.105 of 1971 was  in favour, inter alia, of dead man, namely, the  second appellant Rup Ram and that, therefore, the decree should  be set aside.      We  find that after Rup Ram died an application  (Civil Miscellaneous No.1122/C of 1975) under Order 22 Rule 9  read with  Section  151 of the Code of Civil Procedure  was  made praying that delay be condoned, the legal representatives of the  deceased appellant Rup Ram be allowed to be brought  on record   and   the  abatement,  if,  any,  be   set   aside. Simultaneously,  a second application  (Civil  Miscellaneous No.1123/C of 1975) was filed under order 22 Rule 3 read with Section 151 of the Code of Civil Procedure praying that  the three sons of Rup Ram be brought on record as appellants  in his  place.  In the order under appeal, the  learned  Single Judge,  stated,  "Since  R.S.A  No.601  of  1971  has   been dismissed,  Civil Miscellaneous Application  Nos.1122-C  and 1123-C of 1975 have become infructuous and the same are also dismissed".      Clearly,  there  a misapprehension in the mind  of  the learned  Single Judge. The aforesaid applications were  made to  bring the heirs of Rup Ram on  record as  appellants  in Appeal No.105 of 1971 and, since                                                        594 the  learned Single Judge was allowing that appeal in  part, he ought to have considered the two applications on  merits. However,  this  is not a good ground for setting  aside  the decree.  At the most, there would be a case for remand;  but even  that, we think, is not necessary for the  applications are  clearly allowable. There was a delay of 15 days in  the application  to  bring  the  heirs  on  record  and  it  was explained,  supported  by a medical  certificate,  that  the third  appellant, who was looking after the  appeals  before the  High  Court,  had  suffered  from  typhoid  during  the relevant  period. We are supported in the view that we  take by the judgment of this Court in Harjeet Singh v. Raj Kishor & Ors; [1984] 3 S.C.C. 573.      In the  result, the appeals are dismissed. There  shall be no order as to costs. G.N.                                     Appeals dismissed.                                                        595