Miraben WD of Dineshbharthi Bava and others vs District Collector and others

Honourable Mr. Justice Anant S. Dave

Heard the learned counsel for the petitioners and the learned AGP Considering the fact that respondent Nos. 2 to 5 are original plaintiffs Nos. 2 to 5, their presence is not necessary and, accordingly, at the request of the learned counsel for the petitioners, they are permitted to be deleted as respondent Nos. 2 to 5 in this petition.

Challenge in this petition under Articles 226 and 227 of the Constitution of India is to the order dated 17th July 2012 passed by the learned Second Additional Senior Civil Judge, Deesa, below Exh. 27 and 28 in Special Civil Suit No. 39 of 2004, by which, the request of the petitioners [original plaintiffs] to set aside abatement and to bring legal heirs of deceased plaintiff No. 3, Dineshbhai Dalpatbharti Bava, came to be rejected.

Special Civil Suit No. 39 of 2004 was filed by the plaintiffs for a declaration and permanent injunction, but, in view of the fact that the case on hand is solely based on a legal contention, details about factual aspects are not necessary to be narrated except death of plaintiff No. 3 who died on 5.5.2006. According to the Court below, legal heirs of plaintiff No. 3 were to be brought on record within 90 days and the applications were filed after about four years, namely, on 20.8.2010 and, in absence of merit, both applications came to be rejected.

Learned counsel for the petitioners, original plaintiffs, has placed reliance on the decision of the Apex Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by LRs. and Others, , more particularly paragraph 13, wherein the principles applicable for consideration of application for setting aside abatement, are summarized as under:

The principles applicable in considering applications for setting aside abatement may thus be summarized as follows :

(i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ''sufficient cause'' in section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics want of bonafides, deliberate inaction or negligence on the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.

(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer''s lapses more leniently than applications relating to litigant''s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.

(v) Want of ''diligence'' or ''inaction'' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.

In view of the above, it is submitted that, in the peculiar facts and circumstances of the case and inability on the part of the petitioners to bring the legal heirs on record within limitation so stated in both applications Exh. 27 and 28, the trial court ought to have exercised power by condoning delay and permitting the petitioners to bring legal heirs on record by setting aside abatement.

Considering the overall facts and circumstances of the case and in view of what is held by the Apex court in Perumon Bhagvathy Devaswom Perinadu Village [supra] in paragraph 13, this is not a case where, on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the petitioners, delay had occurred and the law laid down by the Apex court in Perumon Bhagvathy Devaswom Perinadu Village [supra] is squarely applicable to the facts of the present case. In the result, this petition succeeds. The order dated 17th July 2012 passed by the learned Second Additional Senior Civil Judge, Deesa, below Exh. 27 and 28 in Special Civil Suit No. 39 of 2004 is quashed and set aside. Abatement of the suit is set aside. Legal heirs of deceased plaintiff No. 3, Dineshbhai Dalpatbharti Bava, are permitted to be brought on record of the suit. The suit be proceeded further in accordance with law.