Madhow Sao vs Rambha Devi and Others

N.K. Agarwal, J.—This order shall govern the disposal of I.A. No. 03, an application under Order 22 Rule 9(2) 3 read with Rules 3 and 11 of the CPC (for short ''the Code'') for setting aside the abatement of appeal, I.A. No. 1, application under Order 22 Rule 3 of the Code for bringing L.Rs. of deceased/appellant on record and I.A. No. 2, an application u/s 5 of the Limitation Act for condonation of delay in filing the application (I.A. No. 03) for setting aside the abatement. Plaintiffs/respondents No. 1 to 10 filed a suit for declaration of title, possession and permanent injunction against the defendants including appellant.

The Additional Judge to the court of District Judge, Khairagarh, District Rajnandgaon decreed the plaintiffs'' suit vide judgment and decree dated 09.01.1993.

Feeling aggrieved and dissatisfied with the judgment and decree impugned, the instant appeal u/s 96 of the Code has been preferred by the appellant/defendant No. 3-Madhow Sao.

The sole appellant-Madhow Sao died on 26.9.1998 and his legal representatives were not brought on record in time.

It is only after a lapse of 11 years, the applicants i.e. legal representatives of deceased/appellant have moved an application for bringing them on record in place of deceased/appellant; and for setting aside the abatement after condoning the delay in filing the application for setting aside the abatement. The ground taken in the application for condonation of delay is reproduced as under:

That, the appellants are rustic villagers and had no knowledge that their case was pending before the Hon''ble High Court and when the appellant No. 3 namely Divya Tamrakar searching for the some paper then she saw the memo of appeal of the present case then she tell about her family members then they inquire the matter and filed the present application.

Shri Anand Shukla, learned counsel appearing for the proposed legal representatives of deceased/appellant would submit: as the appellants are rustic villagers and were not aware about the pendency of appeal when the sole appellant-Madhow Sao died and, therefore, the delay occurred in filing application for setting aside the abatement deserves to be condoned and the application for setting aside the abatement and for substitution of the applicants in place of deceased/appellant-Madhow Sao may be allowed.

Per contra, the submission of learned counsels appearing for the respondents, is that the appeal already abated and no cause much less sufficient cause, has been shown for setting aside the abatement after condoning the delay in filing the application for setting aside the abatement. The valuable right had already accrued in favour of the respondents in appeal and it will be unfair and unjust to take away their vested right on such flimsy and baseless ground for which no foundation has been led in the application. It is further contended by learned counsels for the respondents, the fact of pendency of appeal was just within the knowledge of the applicants since its inception; they are not rustic villagers but are educated persons; the application has been filed after an inordinate delay of 11 years and the same deserves to be dismissed.

I have heard learned counsel for the parties and perused the record of the trial Court.

Order 22 of the Code provides for consequences arising out of death, marriage and insolvency of parties. Rule 1 thereof provides that the death of a plaintiff defendant shall not cause the suit to abate if the right to sue survives. Rule 2 lays down the procedure where one of the several plaintiffs died and the right to sue survives. Order 22 Rule 3 lays down the procedure in case of death of one of the several plaintiffs or the sole plaintiff for bringing on record the heirs and legal representatives of a deceased plaintiff or one of the plaintiffs. Order 22 Rule 4 lays down the procedure in case of death of one of the several defendants or the sole defendant for bringing on record the heirs and legal representatives of deceased defendant or one of the defendants, an application is required to be filed within the time prescribed therefor. The period prescribed for such an application indisputably is 90 days. Sub-rule (3) of Rule 4 of Order 22 provides for consequences of not filing such an application, i.e., that the suit shall abate so far as the deceased defendant is concerned.

Vide Rule 11 of Order 22, the above procedure has been made applicable in case of appeals.

Order 22 Rule 9 of the C.P.C. reads thus:

Effect of abatement or dismissal.--(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the Receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2).

Explanation.-- Nothing in this Rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.

The Supreme Court in the case of Balwant Singh (Dead) Vs. Jagdish Singh and Others, , dealt with the subject in detail. After considering its several earlier pronouncements, the Supreme Court has held as under:

Liberal construction of the expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable, The expression "sufficient cause" implies the presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention.

Even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of its acting vigilantly.

The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as welt as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. Delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.

It is difficult to state any straitjacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case.

Reverting to the facts of the present case, proposed LRs No. 3(a) namely Divya Tamrakar has signed the affidavit in English. A bare perusal of Vakalatnama signed by proposed LRs of the deceased/appellant would reveal: ail the proposed legal representatives of the deceased/appellant are educated persons; therefore, the plea of rustic villagers taken in the application, on the face, is not correct. Applicants No. 2, 4, 5, 6, 7, 8 and 9 are major sons of deceased/appellant. It is very difficult to accept their plea that they were not aware about the pendency of the appeal, especially in case, in which they have come forward with an incorrect plea that they are rustic villagers.

Liberal construction of expression "sufficient cause" is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. The applicants filed the application for bringing them on record as heirs and legal representatives of deceased-appellant after a period of 11 years for which the ground taken by the applicants in the application, by no stretch of imagination, can be termed as "sufficient cause".

Section 5 of Limitation Act, 1963 confers power to condone delay if the applicant is successful in showing that he was prevented from preferring the appeal/revision/M.C.C. for sufficient cause. It is the sufficient cause which gives jurisdiction to a court to condone the delay. Normally, after the expiry of the period right to sue extinguishes and the other side acquires right which normally should not be disturbed. Only in case of proving a sufficient cause the applicant is entitled to continue the litigation further, in which applicants utterly failed. In view of above, the applicants failed to make out a case for condoning the delay of 11 years in filing the application for setting aside abatement.

For the reasons mentioned hereinabove, I.A. No. 2/2009 for condonation of delay in filing the application for setting aside the abatement and I.A. No. 3/ 2009 for setting aside the abatement deserve to be and are hereby dismissed. Consequently, the appeal having already abated, also stands dismissed. No order as to costs.