2004 INSC 0984
                                    SUPREME COURT OF INDIA

                                                Dhan Kumar

                                                      Vs.

                                                Iqbal Hussain

                                       S.L.P.(C) No.19977 of 2002

                                 (Arijit Pasayat and C. K. Thakker JJ.)

                                                 06.09.2004

                                                JUDGMENT

Arijit Pasayat, J.

Heard learned counsel for the parties.

1. Leave granted.

2. The application filed in terms of Order XXII, Rule 9 of the Code of Civil Procedure, 1908
(in short 'the CPC') read with Section 5 of the Indian Limitation Act, 1963 (in short 'the
Limitation Act') was rejected. The appellant's father had filed an appeal in the Court of
District Judge, Guna, Madhya Pradesh. He died on 09.01.1991. Thereafter, the application in
terms of Order XXII, Rule 9 CPC came to be filed on 02.10.1991. The explanation offered
for the delay was that the appellants had no knowledge about the pendency of the appeal and,
therefore, they could not take steps earlier. The plea was resisted by the respondent in the
appeal before the District Court on the ground that no satisfactory explanation has been
offered. The District Court accepted the plea of the respondent and rejected the application
filed. The High Court, by the impugned judgment, affirmed the view of the District Court.

3. Learned counsel for the appellants submitted that all that was possible to be done, had, in
fact, been done in the courts below. The photostat copy of the letter on the basis of which
subsequent action was taken, was filed. It was explained as to how the appellants filed the
application the moment they came to know about the pendency of the appeal. Learned
counsel for the respondent submitted that two courts have came to the conclusion that the
plea set up by the appellants is not tenable and these being findings of fact, should not be
interfered with.

4. We find that the plea taken by the appellants and the materials placed were not really
inadequate to support their stand. That being so, the technical view, as adopted, should not
have been taken about the non-production of the original letter. The courts below should
have accepted prayer of the appellants. Be that as it may, the respondents have been put to

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unnecessary expenses by fighting litigation. The costs of Rs.5, 000/- would meet the ends of
justice. The amount of Rs.5, 000/- as costs shall be paid within four weeks from today. On
the amount being paid, the appeal shall be restored by the District Court and the application
in terms of Order XXII, Rule 9 red with Section 5 of the Limitation Act shall be allowed and
the proper parties shall be impleaded in terms of the application.

The appeal is disposed of accordingly.

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