TMI Blog1983 (2) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and for taking accounts. The preliminary decree was dated Jan 11, 1972. Plaintiff Maharaj Swaroop preferred 1st Appeal No. 67 of 1972 in the High Court of Judicature for Rajasthan at Jaipur. It appears that during the pendency of the appeal, appellant Maharaj Swaroop died and his heirs and legal representatives were substituted. In this appeal Ganesh Narain Mathur, original defendant No. 1, was impleaded as respondent No. 1. During the pendency of the appeal, respondent No. 1 (original defendant No. 1) Ganesh Narain Mathur died on Feb. 10, 1977. On Aug. 30, 1981, Mool Chand, respondent No. 2 (original defendant No. 2) moved an application that original respondent No. 1 Ganesh Narain Mathur having expired on Feb. 10, 1977 and his heirs and legal representatives having not been substituted, the appeal abates as a whole. It was alleged that appellant No. 2 Sh. Dhanna Lal, appellant No. 3 Sh. Sital Prashad, appellant No. 4 Sh. Amba Swaroop and pro forma respondent No. 3 Sh. Manmohan Lal were Cully aware of the demise of respondent No. 1 Ganesh Narain Mathur on Feb. 10. 1977 because all of them attended the funeral of Shri Ganesh Narain Mathur. It was further contended that even then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No. 1, as contended on behalf of the contesting respondent No. 2. There is some force in the contention that when a specific provision is made as provided in Order 22, R. 4, a resort to the general provision like Order 1, Rule 10 may not be appropriate. But the laws of procedure are devised for advancing justice and not impeding the same. In Sangram Singh v. Election Tribunal, Kotah [1955]2SCR1 , this Court observed that a Code of Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in Kalipar Das v. Bimal Krishna Sen AIR1983SC876 . 5. In a suit for partition, the position of plaintiffs and defendants can be interchange-' able. It is that each adopts the same position with the other parties. Other features which must be noticed are that the appeal was filed somewhere in 1972. It had not come up for hearing and the matter came on Board only upon the application of the second respondent intimating to the Court that the 1st respondent had died way back and as his heirs and legal representatives having not been substituted, the appeal has abated. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the judgment of the High Court dated 27th Jan., 1982 abating First Appeal No. 67 of 1972 preferred by the present appellants. The application made by the appellants before the High Court as well as the one made by the heirs and legal representatives of deceased respondent No. 1 are allowed and the heirs and legal representatives of deceased respondent No. 1 are substituted and brought on record after setting the abatement and condoning the delay in making the application. The matter is remitted to the High Court for disposal on merits. Appellants shall pay as and by way of costs ₹ 1,000/- to respondent No. 2 Mool Chand. A.N. Sen, J. 9. I have read the judgment and order proposed to be delivered by my learned brother Desai, J. 10. My learned brother in his judgment has set out the facts material for the purpose of disposal of this case. It does not, therefore, become necessary to reproduce the same. 11. My learned brother in his judgment has held: It is equally true that the appellants were negligent in moving the proper application, We would not question the finding of the High Court that appellants Nos. 2, 3 and 4 know about the death of the deceased resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lem arises for the Court for considering whether any lapse in the observance of the procedural law needs to be excused or overlooked. As I have already observed depending on the facts and circumstances of a particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best. 13. Excuse of lapses in compliance with the laws of procedure, as a matter of course, with the avowed object of doing substantial justice to the parties may in many many cases lead to miscarriage of justice. 14. Civil Procedure Code requires that in the event of death of a particular party, heirs and legal representatives of the deceased have to be brought on record within a particular period, provided the cause of action survives. If the legal representatives are not brought on record within the stipulated period, certain consequences follow and the action abates either wholly or partially depending on the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provided an overall picture of the entire case, requires such course for furthering the cause of justice. When negligence and laches are established on the part of the party who seeks to set aside the abatement, the application of such a party should be entertained only in the rarest of cases for furthering the ends of justice only and on proper terms. 16. In the present case, the appeal has been filed against a preliminary decree in a partition suit. A partition suit stands on a peculiar footing. In a partition suit any of the party can claim transposition from the category of the defendant to the category of the plaintiff and vice-versa. With the passing of the preliminary decree, shares of the parties are declared and rights of the parties pending the passing of the final decree are to an extent determined. As a result of the passing of the preliminary decree, certain rights do accrue to the parties subject to the results of the appeal filed. There is no doubt that there has been some amount of negligence on the part of the appellant in not making the application for substitution within time. The appellant had full knowledge of the death of the respondent who was a near rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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