Sharad Manohar, J.
1. This appeal has been filed against the order of the learned Judge of the Bombay City Civil Court who has dismissed the appellants chamber summons for bringing themselves as heirs of the original plaintiff on record on the ground that the same was barred by limitation and that there was no justifiable ground for condonation of the delay. By the self-same order, the learned Judge also held that the suit stood abated.
For the reasons which will be mentioned presently, both the orders passed by the learned Judge have got to be and are being set aside by this order.
2. The facts are very few and simple.
Original plaintiff, one Sonu Balu Surve, filed a suit against defendant Ramchandra Ragho Sawant, Suit No. 3000 of 1969, for various reliefs. From the reliefs claimed, it will be seen that the property involved was of an extremely valuable character. A declaration was sought from the Court that the suit property, namely, 'Chawl House No. 512' and the land thereunder was of the plaintiff's ownership. Further, possession of the same was asked for and also an injunction against the defendant in connection with the said property was claimed. In addition to the same, certain monetary claims were made against the defendant. By Clause (f) of the Prayer Clause in question, the plaintiff also asked for appointment of the Receiver of the said property pending the hearing and disposal of the suit.
Along with the suit, it appears from the Roznama, the plaintiff also took out a notice of motion. The Roznama does not mention as to what were the prayers in the notice of motion and that question is not even very much relevant for the purpose of this appeal. But probably the notice of motion was taken out for appointment of the Receiver of the suit property, or for suitable injunction in respect of the same, during the pendency of the suit. From the Roznama it appears that the suit was filed some time before 27-8-1969 because the first date mentioned in the Roznama about the hearing of the same is 27-8-1969. From the Roznama, it is further seen that the notice of motion is 27-8-1969. From the Roznama, it is further seen that the notice of motion was dated 31-7-1969 and it came up for hearing on 28-8-1969. The order passed on that date makes it clear that even though the affidavit in support of the notice of motion was received by the defendant, he had not filed any affidavit by way of reply to the same. Instead of, however, giving further time to the defendant to file the affidavit in reply the plaintiff's Advocate agreed that he was prepared to proceed with the hearing of the notice of motion upon the understanding that the statements made by the plaintiff in the affidavit in support of the notice of motion as well as in the plaint need not be taken as admitted by the defendant merely because no reply-affidavit was filed by the defendant. This was evidently with a view to avoiding any further delay in the matter of getting the interim relief claimed by the plaintiff.
It appears that after the notice of motion was heard for some time, the defendant was prepared to give certain undertakings. In that view of the matter, those undertakings were recorded by the Court and hence the prayer in the notice of motion was not pressed with by the plaintiff and the notice of motion was thus disposed of virtually in favour of the plaintiff.
3. The written statement was filed by the defendant on 17-12-1969 and thereafter the suit was transferred to the list of long causes and there it stood waiting in the long queue of the long cause suit knocking the door of justice from the Court. The plaintiff had no other alternative but to wait for his turn to have his suit decided. He waited long, for 10 years, but ultimately could wait no longer in the physical sense and in fact, died on 5-10-1979. The suit remained pending.
4. Quite a few relevant events had taken place during the period. The plaintiff's own Advocate Shri Tambwekar had died even before the plaintiff. His son left Bombay for practising at Delhi. The contention of the heirs of the plaintiff, who are the appellants before me, is that they were not even aware of the litigation which was fought by the plaintiff. As per the affidavit in support of the chamber summons filed by them on 3-2-1981, it appears that when they came to know about this litigation, they immediately contacted their former Advocate as well as the present Advocate and took every step for the purpose of getting necessary legal advice and after doing the needful in that took out the chamber summons for
(a) setting aside abatement of the suit;
(b) for condonation of delay that had been occasioned in that behalf as well as in connection with the application; and
(c) for bringing the heirs on record.
There is no dispute that the copy of the chamber summons was duly served upon the defendant and it is not the defendent's case that there was any delay on the part of the heirs of the plaintiff in serving the copy of the chamber summons dated 3-2-1981 upon him. The defendant chose to file no affidavit in reply to the said chamber summons. The chamber summons ultimately came up for hearing before the learned Judge Mr. Shambhu on 6-3-1982.
5. As will be presently pointed out, if the statement made in the affidavit in support of the chamber summons are believed, there can be found no justification for any Court for dismissing the chamber summons. It is already pointed out above that there was no reply-affidavit to the chamber summons at all. This means the statements made in the affidavit in support of the chamber summons had not been denied by the defendant. Inspite of this position, the learned Judge passed an order on 6-3-1982 that the affidavit in support of the chamber summons did not disclose any reasons why it should be held that there was sufficient reasons for plaintiff the delay to be condoned and taking such view. He dismissed the chamber summons. He also passed a further order that the suit itself stood abated. It is the correctness of the above order which is called in question before me by the heirs of the original plaintiff.
6. One has to merely pursue the avertments in paras 2 and 3 of the affidavits in support of the chamber summons to arrive at the conclusion that if they are believed the chamber summons must be allowed. I would rather set out the said paras verbatim.
Para No. 2
'I submit that the applicants were not knowing about the above-mentioned suit in the City Civil Court. They came to know about the same only when a file of old papers containing copy of the written statement in the suit was found by them. Immediately thereafter they caused an enquiry to be made in the City Civil Court and found that the above suit was pending in the City Civil Court at Bombay. Since the applicants had no knowledge about the suit they could not make an application for bringing their names as heirs on record earlier. Immediately after the applicants came to know about the pending suit they have made efforts to collect the papers from the plaintiff's former Advocate and for taking out this chamber summons for bringing their names as heirs and legal representatives of the deceased plaintiff. I submit that on enquiry it was learnt that the plaintiff's former Advocate Shri V.G. Tambwekar was also expired. The son of the plaintiff's former Advocate is also an Advocate but he is not residing in Bombay. He is practising in Delhi as an Advocate of the Supreme Court of India.'
Para No. 3.
'I submit that in the circumstances of the case it is just and proper that the delay in making this application be condoned and that the abatement of the suit be set aside.'
If the statement made in the above paras are not denied by the defendant by filing any affidavit, it is impossible to find any jurisdiction for holding that the statements are not true and if the statement are true, it is impossible to find any jurisdiction for not condoning the delay and for not setting aside the abatement of the suit. The applicants have clearly stated that they did not know about the suit. It is further stated that immediately when they learnt about it, they made all the efforts and collected all the papers from the plaintiff's former Advocate. The fact that the former Advocate was dead is an admitted fact. The further fact that his son who was practising for some time in Bombay left for Delhi is also an admitted fact. When I say admitted fact, what I mean is that the correctness of those facts were specifically conceded before me by Mr. Patel, the learned Advocate for the defendant. The fact that the plaintiff had no knowledge about the litigation and, what is more important, the fact that after getting the knowledge the heirs of the plaintiff took immediate requisite steps must be deemed to be admitted because there is no denial of the same. If that is the position, it really beats imagination as to by what process of logic it can be held that the plaintiff had not made out a case for condonation of delay.
7. Moreover, what the learned Judge has lost sight of is that on the previous occasion when the defendant argued the case without an affidavit in reply to the notice of motion, the Court did not allow the plaintiff to proceed with the same until he made a statement being to the effect that the absence of the reply-affidavit would not be taken as meaning that the statement in the plaint or in the affidavit in support of the notice of motion were admitted by the defendant. No such statement was made by the present appellants in the instant cases at the time of hearing of this chamber summons. In fact, Mr. Patel fairly conceded before me that he asked for time to file reply affidavit, but his application was rejected by the Court. If that is the position, the statements made in paras 2 and 3 of the affidavit in support of the chamber summons must be held to be admitted by the defendant or must be held not to have been denied by him.
8. What the learned Judge has lost sight of is that the suit has been pending for 10 full years and the deceased plaintiff was waiting in the queue hoping that some day he would get justice. He breathed his last, but justice did not come his way. It is a travesty of all nations of justice if the Court takes such harsh view when one of the parties and its heirs have been doing everything in their hands to get their suit decided and the Court just dismisses their application for condonation of delay and for bringing the heirs on record when the suit itself remains pending for 10 years before the Court. I am alive to the fact that this question is not directly related to the question to be considered by the Court having regard to the provisions of section 5 of the Limitation Act; but it has its own inevitable bearing upon the question of doing justice between the parties vis-a-vis this application for bringing the heirs on record. The Court must take a realistic view of the matter. The Court delayed justice for more then 10 years. It was helpless. It had its own reasons. The delay on the part of the Court was wholly unintended. But it cannot be denied that even delay by the plaintiff's heirs was unintended. It just cannot be conceived that the plaintiff's heirs were or are interested in delaying the litigation for any reason whatsoever. If at all, it would be the defendant who would be interested in delaying, not the plaintiff. If the Court could delay justice for more than 10 years, the Court must become somewhat introspective must turn the search-lights inwards as they but it, and must ask itself the question whether it would be justified in taking too very harsh a view and a cut-and-dried attitude towards a totally unintended delay on the part of the plaintiffs in getting themselves brought on record. Even while considering the question under section 5 of the Limitation Act, it is the bounden duty of the Court to consider all these realities of life. The learned Judge will also do well to be advised of the fact that justice untempered with mercy is the very negation of the concept of justice.
I do not for a moment suggest that in every case of delay by the heirs of the plaintiff, whatever may be its extent, the same must be condoned by the Court. What I mean to say is that the Court's inclination in such cases heirs is of a gross character and there are no means by which the Court can come to the heirs rescue. In the instant case, the Court had before it the factual explanation about the delay which was not denied by the defendant at all. This, therefore, should have been considered by any Court to be an eminently fit case where the delay should be readily condoned. Instead of doing so, the Court has resorted to the attitude of picking holes in the explanation given by the plaintiff's heirs. Such an approach to the question of administration of justice is an unfortunate approach.
9. I am alive to the fact that the courts are cowering and cracking under the burden of the arrears of litigation. But resorting to such a harsh attitude and dismissing the suit in this manner is not an answer to the monstrous question of litigation back-log. The justice is to be hastened not smothered.
10. The appeal is, therefore, allowed. The order passed by the learned Judge dismissing the chamber summons, as well as the order holding that the suit had abated are hereby set aside. The appellants are ordered to be brought on record as the heirs and legal representatives of the original deceased plaintiff. The suit to proceed for hearing immediately.
11. Having regard to the above criticism that I am constrained to make against the learned Judge, I direct that the learned Principal Judge should order the suit to be tried by some Judge other than learned Judge who dismissed the said chamber summons. The learned Principal Judge is also directed further to instruct the Board Department that if this suit's turn for hearing had already reached, in other words, if suits on the long cause list for the year 1969 have already been heard and if he finds that the present suit is not heard only because of eventuality about the wrong order passed by the learned Judge on the chamber summons, the learned Judge will direct the office to place the suit for hearing so as to be disposed of in any event before 31st October, 1982.
12. However, so far as the costs are concerned, there is no reason why the defendant should be saddled with the costs either of this appeal or of the chamber summons. The appellant shall, therefore, pay the costs to the respondent of this appeal as well as of the chamber summons in the trial Court.