Municipal Corporation vs Sagarmal and Others

J.K. Jain, J.—Shri Rajendra Shrivastava, learned counsel for the appellant. Shri A. Vikas, Advocate on behalf of Shri Sunil Jain, learned counsel for the respondent No. 2.

Shri L.L. Sharma, Dy. Govt. Advocate for respondent No. 3 State.

Heard I.A. No. 6701/2014, an application under Order XXII Rule 4; I.A. No. 1761/2015, an application under Order XXII Rule 9 of Civil Procedure Code and I.A. No. 8567/2014 and 1762/2015 applications under section 5 of the Limitation Act.

Learned counsel for appellant submits that respondent No. 1 has expired, therefore, for substitution of his legal representatives the appellant has filed this application. Appellant could not file the application in time as the appellant is a Municipal Corporation and its employees were busy in the election. Meanwhile, appeal against the respondent has abated, therefore, the application for setting aside the abatement has been filed along with the application for condonation of delay. It is true that there is some delay in filing the application. The delay is bona fide, therefore, it may be condoned. He submits that the delay has been satisfactorily explained. The Hon''ble Apex Court in the case of D.D. Vaishnav Vs. State of M.P. and Others, AIR 2009 SC 2170 : (2009) 2 SCALE 75 : (2009) 16 SCC 777 : (2010) AIRSCW 209 : (2009) 7 Supreme 459 has condoned the delay of 589 days. He further submits that in case this Court reaches to the conclusion that the appeal has abated against respondent No. 1, even though the question as to whether the appeal has abated in toto, should be left open for the final hearing in this appeal. For this purpose, he placed reliance on the decision of this Court in the case of Mahadeo and Others Vs. Deo Chand and Others, (2015) 1 MPHT 441 .

On the other hand, learned counsel for respondent No. 2 vehemently opposes the prayer and submits that the respondent No. 2 had filed an application (I.A. No. 6363/2013) under Order XXII Rule 10 of Civil Procedure Code on 7-10-2013 informing that the respondent No. 1 has died on 15-7-2013. Even though, the appellant has not filed the application for substitution of legal representatives on record in time. The application under Order XXII Rule 4 was filed on 21-7-2014, whereas the application under Order XXII Rule 9 has been filed on 25-2-2015. Thus, the appellant has not shown any sufficient cause for condonation of delay and for setting aside the abatement. He further submits that the Government departments are under special obligation to ensure that they perform their duties with diligence and commitment and unless the Government departments have reasonable and acceptable explanation for the delay, only then the delay can be condoned. For this purpose, he placed reliance on the judgment of Apex Court in the case of Office of The Chief Post Master General and Others Vs. Living Media India Ltd. and Another, AIR 2012 SC 1506 : (2012) 113 CLT 1066 : (2012) 174 CompCas 387 : (2012) 2 CTC 240 : (2012) 277 ELT 289 : (2012) 348 ITR 7 : (2012) 2 SCALE 782 : (2012) 3 SCC 563 : (2013) 1 SLJ 320 : (2012) 207 TAXMAN 163 : (2012) AIRSCW 1812 : (2012) 2 Supreme 244 .

I have considered the submissions made by learned counsel for the parties. Undisputedly, respondent No. 2 is the son of respondent No. 1 Sagarmal who died during pendency of this appeal on 15-7-2013. It is settled law that when one of the legal representatives is already on record, the appeal does not abate and in such eventuality, person need not apply for the setting aside the abatement. Therefore, the appellant is not required to file an application for setting aside the abatement and an application under section 5 of the Limitation Act for condonation of delay in filing such an application.

In such circumstances, the application under Order XXII, Rule 4 of the Civil Procedure Code deserves to be and is hereby allowed. The appellant is directed to carry out the amendment in the memo of appeal within a week. Other applications stand disposed of, as aforesaid.

On payment of P.F. within a week along with amended copy of memo of appeal, notice be issued to the legal representatives of the respondent No. 1. Let the matter be fixed on 13-5-2015.