Tilotama Bewa Vs. Tirtha Dehuri and anr. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 2. there is some force in the contention that when a specific provision is 'made as provided in 0. 22, r, 4, a resort to the general provision like 01, r. as i have already observed depending on the facts and circumstances of a particular case in the larger interests of administration of jusfice .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.a.k. padhi, j.1. plaintiff is the appellant. appeal arises out of a suit for partition. the admitted relationship as per the genealogy is as follows : brusabha - w. nirasa bewa (d. 2) | ____________________________|_____________________________ | | | | aditya (died) tirtha (son) mathura (son) uttama (daughter) in 1980) (d. 1) (d. 3) died (d. 4) = tilotama on 25-4-1982during pendency of the suit defendant no. 2 died. on 25-4-1982 defendant no. 3 died leaving behind her husband, sons and a daughter as her legal representatives. the advocate for the defendants filed a memo intimating the court regarding the death of defendant no. 3. in spite of the intimation by the advocate for the defendant no. 3, the plaintiff did not take any step for substitution in time. an application for substitution was filed without being supported by an affidavit. only on 16-11-1982 after the abatement had set in, applications for substitution, to set aside the abatement along with an application under section 5 of the limitation act were filed. the advocate for the defendant filed objection asserting that as plaintiff after being duly intimated about the death of defendant no. 3 has not brought the legal representatives on record in time, the suit has abated, so far as defendant no. 3 is concerned and she should not be permitted to bring the legal representatives of defendant no. 3 on record. application for substitution of defendant no. 3 was rejected on 21-12-1982. on 25-2-1983 the trial court pronounced the judgment holding that:(a) the plaintiff is entitled to a share, she being the widow of the co-sharers ;(b) the suit has abated so far as defendant no. 3 is concerned who had share in the properties; and(c) the suit being a suit for partition, |t shall abate as a whole; and with the above findings dismissed the suit. this finding of the teamed trial court dismissing the suit, is challenged in this first appeal.2. during pendency of the first appeal, another application had been filed to bring the legal representatives of deceased defendant no. 3 on record. notice has been duly served on this application.3. though notices have 'been served on the respondents, perso- nally, there is no appearance on behalf of respondents-defendants.4. the learned advocate for the appellant submits that though it is true that there were laches on the part of the plaintiff, she being a widow, the trial court should have condoned the delay, set aside the abatement and substituted the legal representatives of defendant no. 3. it is further submitted that the coda of civil procedure is designed to facili- tate justice and further its ends the substitution should have been allowed for advancement of justice. for such a submission reliance has been placed on a decision reported in a.i.r. 1983 s. c. 3.5 (bhagwan swaroop and ors. v. mool chand and others), in the said decision justice desai has observed :'...it is equally true that the appellants were negligent in moving the proper application. we would not question the findings of the high court that appellant nos. 2, 3 and, 4 knew about the death of the deceased respondent no. 1. this being a suit for partition of joint; family property, parties are closely inter- related and it is reasonable to believe that atleast some of the' appellants must have attended the funeral of deceased respon- dent 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 0. 22, r, 4, a resort to the general provision like 01, r. 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) 2 s.c.r. 1, air 1955 s. c. 425), 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, (1983) 1 scc. 14'.in paragraph 12 justice sen has observed as follows :'...it is no doubt true that a code of procedure 'is designed to facilitate justice and further its ends and it is nor. a penal enact- ment for punishment and penalty and not a thing designed to trip people up. procedural laws are no doubt' devised and enacted for the purposes of advancing justice. procedural laws, however, are also laws and are enacted to be obeyed and implemented. the laws of procedure by. themselves do not create any impediment or obstruction in the matter of doing justice to the parties. ' on the other hand, the main purpose . and object of enacting procedural laws is to see that justice is done to the parties. in the absence of procedural laws regu- lating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. difficulties arise when parties are at default in complying with the laws of procedure. as proce- dure is aptly described to be the hand-maid of justice, the court may in appropriate cases ignore or excuse a mere irregu-;.'. larity in the observance of the procedural law in the larger interest of justice., it is, however, always to be borne in.mind. that procedural laws as are valid as any other law and are. enacted to be observed and have not been. enacted merely to be brushed aside by the court. justice means justice. to the parties in any particular case and justice according to law. -.if procedural laws are properly observed, as they should be obser- ved, no problem arises for the . court for considering .whether any lapse in the odservance 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 jusfice ..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.'in my opinion, the ratio of this case applies to this case at hand. in this case the plaintiff is an illiterate widow. it is true that she was negligent in moving a proper application, this being a suit for partition of the joint family properties and parties are closely related. the finding of the trial court tha't the plaintiff was 'negligent also cannot be questioned, but still for advancement of justice this breach of procedural law is to be excused and the substitution of the' legal representatives of the defendant no. 3 should be allowed.5. admittedly, as . recorded by the trial court defendant n. 2 nirasa bewa died after the death of defendant no. 3. ah her legal representatives are already on record except the legal representatives of defendant no. 3 who also are her legal representatives. as the substitutionof defendant no. 3 of allowed in this first appeal and have directed the legal representatives of defendant no. 3 to be brought on record, no further substitution shall be necessary so far as- defendant no. 2 ntrasa bewa is concerned.6. accordingly, i allow the appeal and set aside the findings of the trial court. application for substitution of the legal representatives of defendant no. 3, application to- set aside the abatement and application for condonation of delay are allowed. the matter is remitted to the trial court for disposal on merit after allowing the substitution. since the plaintiffappeflant had some l]aches, in my opinion, rs. 250/- as cost should be paid to the defendants. the plaintiff-appellant is directed to deposit the cost before the trial court within three months from the date of the judgment failing which the appeal will stand dismissed. on depositing the cost the trial court shall allow the application for substitution, set aside the abatement and condone the delay and proceed with the trial of the suit afresh in accordance with law after giving opportunity to the legal representatives of the deceased defendant no. 3 to adduce evidence and alter notice to all the parties.