Supreme Court allows appeal after death of respondent, permits substitution of heirs & legal representatives. Costs awarded to respondent.

The Supreme Court allowed the appeal, set aside the High Court's judgment abating the appeal due to the death of a respondent, and permitted the substitution of the heirs and legal representatives of the deceased respondent. The matter was remitted to the High Court for disposal on merits, with the appellants directed to pay costs to respondent No. 2. Justice A.N. Sen concurred, emphasizing procedural laws are meant to advance justice, and in the interest of substantial justice, minor lapses can be excused.

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Issues Involved:
1. Abatement of appeal due to the death of a respondent.
2. Substitution of legal representatives of the deceased respondent.
3. Application of procedural laws in the context of advancing justice.
4. Negligence of appellants in complying with procedural requirements.

Issue-wise Detailed Analysis:

1. Abatement of Appeal Due to the Death of a Respondent:
The appeal in question was filed against a preliminary decree in a partition suit. During the pendency of the appeal, the original defendant No. 1 (respondent No. 1) passed away. The High Court held that the preliminary decree was indivisible, and proceeding with the appeal in the absence of the deceased respondent's legal representatives would result in inconsistent decrees. Consequently, the High Court declared that the appeal abated as a whole.

2. Substitution of Legal Representatives of the Deceased Respondent:
The appellants failed to substitute the legal representatives of the deceased respondent No. 1 within the stipulated time. Subsequently, the heirs of the deceased respondent moved an application under Order 1, Rule 10, CPC to be impleaded as legal representatives. However, the High Court rejected this application, stating that the provisions of Order 1, Rule 10 could not override the specific provisions of Order 22. The High Court emphasized that the limitation for taking action under Order 22 had expired, and thus, the application was not maintainable.

3. Application of Procedural Laws in the Context of Advancing Justice:
The Supreme Court highlighted that procedural laws are designed to facilitate justice and not to impede it. It referred to precedents such as Sangram Singh v. Election Tribunal, Kotah, and Kalipar Das v. Bimal Krishna Sen, which emphasized that procedural laws should not be used to trip people up but to advance justice. The Court noted that in a partition suit, the positions of plaintiffs and defendants are interchangeable, and the heirs of the deceased respondent had no grievance about the delay in substitution. The Court criticized the High Court's hyper-technical approach, which could result in a miscarriage of justice.

4. Negligence of Appellants in Complying with Procedural Requirements:
The Supreme Court acknowledged that the appellants were negligent in not moving the proper application in time. However, it emphasized that the heirs of the deceased respondent were willing to be substituted and had no objection to the delay. The Court stated that procedural lapses should not be allowed to defeat substantial justice. It held that the application for substitution should have been allowed, and the abatement should have been set aside, condoning the delay.

Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's judgment abating the appeal, and permitted the substitution of the heirs and legal representatives of the deceased respondent No. 1. The matter was remitted to the High Court for disposal on merits. The appellants were directed to pay costs of Rs. 1,000/- to respondent No. 2 Mool Chand.

Separate Judgment by A.N. Sen, J.:
Justice A.N. Sen concurred with the judgment delivered by his learned brother, emphasizing that procedural laws are enacted to advance justice. He acknowledged that procedural laws should be observed, but in the interest of substantial justice, minor lapses could be excused. He noted that in partition suits, the positions of parties are interchangeable, and the appeal from a preliminary decree should be heard on merits. Although he had reservations about interfering with the High Court's order, he agreed with the decision to set aside the abatement and allow the substitution of the legal representatives.

Final Order:
The appeal was allowed, the High Court's judgment was set aside, and the matter was remitted for disposal on merits. The appellants were directed to pay costs to respondent No. 2.

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