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CASE NO.: Appeal (civil)  5477 of 2003

PETITIONER: Kaushalya Devi                                           

RESPONDENT: Saro Devi & Ors.                                                 

DATE OF JUDGMENT: 01/08/2003

BENCH: R.C. LAHOTI & ASHOK BHAN.

JUDGMENT:

O R D E R   

(Arising out of S.L.P.(C) No.55 of 2000)

       Leave granted.

       Shorn of details the bare necessary facts for decision in  this appeal are noted hereinafter. As regards the very same  immovable property, two suits came to be filed.  One suit was  filed by the appellant seeking eviction of one Churaman Pasi  alleging him to be a tenant in the suit property.  Another suit, in  the nature of cross suit, was filed by heirs of Churaman Pasi  disputing the title of the appellant.  Both the suits were tried  together and disposed of by one common judgment resulting  into two decrees based on one judgment.  The appellant lost in  both the suits.

       He filed two appeals registered as TA No.9/80 and       TA  No. 10/80 in the District Court.  In TA No.9/80 Churaman Pasi  was the sole respondent.  He died.  The appellant moved an  application seeking to bring on record the legal representatives  of Churaman Pasi and seeking condonation of delay in filing the  application, also seeking setting aside of abatement.  The  application was rejected and consequently the appeal was also  dismissed as having abated.  Feeling aggrieved by such  judgment of the  District Court, the appellant filed an appeal in  the High Court which, unfortunately, came to be dismissed in  default of appearance.  The appellant moved an application for  restoration of the appeal in the High Court which application was  registered as MJC 210/97.  This application too came to be  dismissed by the High Court by a brief order a reading whereof  indicates that the High Court looked into the merits of the appeal  also and formed an opinion that restoration was unmerited.  This  appeal, by special leave, has been filed against the above-said  order of the High Court.  

       We have heard the learned counsel for the parties.  We are  satisfied that the Title  Appeal No.9/80 could not have been  dismissed as having abated for failure to bring on record the  legal representatives of the respondent Churaman Pasi and this  we say for two reasons.  Firstly, the application, duly supported  by an affidavit, did make out a sufficient cause for condoning the  delay, setting aside the abatement, if any, and bringing the legal  representatives of the deceased-respondent on record.  It is well  settled that a liberal and not too rigid, technical or pedantic  approach, has to be adopted in such like matters as an  opportunity of hearing on merits, should not be denied to a  litigant unless a case of gross negligence or contumacy is made

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out.  Secondly, in the background of the facts of the case, the  two appeals were to be heard together being two appeals arising  out of decrees in cross suits based on the same common  judgment.  In one of the appeals, the legal representatives,  already available on record, were well aware of the litigation and  their defence.  Bringing them on record in the connected appeal  was a matter of almost a formality which should have been  permitted once an application in that regard was made.   Dismissing the appeal as abated has occasioned a grave failure  of justice and just for technicality.  Such dismissal of appeal  cannot be sustained.  

       As we have formed an opinion that the District Court could  not have dismissed TA No.9/80 as abated and the application for  bringing the legal representatives of the deceased-respondent  should have been allowed, it will be futile to remand the matter  back to the High Court by restoring the appeal pending before it  and to deal with the question of abatement.

       In the backdrop of the above-said facts, the appeal is  allowed.  The dismissal of MJC No.210/97 as also the dismissal  of the appellant’s appeal in the High Court are both set aside.   The appeal in the High Court shall stand restored and allowed  and then treated as disposed of. TA No.9/80 in the District Court  shall stand restored on the file of the District Court.  Substitution  of legal representatives in place of the deceased-respondent  shall be permitted.   TA No.9/80 and TA No. 10/80 shall, both,  then be taken up for hearing and decision in accordance with  law.

       The appeal is allowed.  No order as to the costs.