Rohit Mathur vs The State Of Madhya Pradesh

This Miscellaneous Appeal is directed against the order dated 10.02.2015 passed by 9 th Additional District Judge, Gwalior in Civil Suit No. 35-A/13, whereby the applications of the applicant/plaintiff under Order 22 Rule 4 of CPC, Order 22 Rule 9 of CPC and under Section 5 of Limitation Act has been rejected.

The brief facts of the case are that defendant No. 12 Bhagat Singh died on 21.04.2014. Thereafter, the applicant filed an application under Order 22 Rule 4 for bringing the legal representative of the deceased/defendant on record, together with an application under Order 22 Rule 9 read with Section 5 of Limitation Act on 03.09.2014 to condone the delay in filing the application under Order 22 Rule 4 of CPC and to set aside the abatement. But these applications have been dismissed by the trial Court on the ground that the applications were moved beyond the prescribed period i.e. 90 days and the applicant does not offer sufficient explanation for the delay caused in moving the application for bringing the Lrs on record, whereas the plaintiff should

have explained every day''s delay in filing the application.

Learned counsel for the applicant submits that the fact of the death of Bhagat Singh was brought to the notice of the trial Court on 20.06.2014 and within 90 days from the date of knowledge of factum of death of Bhagat Singh, the applicant filed an application under Order 22 Rule 4 of CPC on 03.09.2014. The trial Court has also overlooked the fact that late Bhagat Singh did not file any written statement and was exparte on 19.07.2010. In these circumstances, the suit could not have been abated against him. On the aforesaid grounds, learned counsel for the applicant prays for setting aside the impugned order.

Learned counsel for the respondents supported the impugned order and prayed for dismissal of the present revision application.

I have heard the learned counsel for both the parties and perused the impugned order.

It is not disputed that defendant No. 12 Bhagat Singh died on 21.04.2014 and the appellant filed an application for bringing his legal representative on 03.09.2014. Admittedly, after a period of 90 days of limitation prescribed for the same, when the suit stood abated against defendant No.12, the applicant moved an application under Order 22 Rule 9 of CPC for setting aside the abatement and an application under Order 22 Rule 4 of CPC for bringing the legal heirs of defendant No. 12 Bhagat Singh, on record. Since the applications were filed beyond the prescribed period of limitation, another application under Section 5 of Limitation Act for condonation of delay in filing the applications was filed which was supported with an affidavit of power of attorney of the appellant but there was no affidavit in rebuttal filed by the respondents/defendants. In these circumstances, contents of the applications cannot be

disbelieved. The trial Court has rejected the application under Section 5 of Limitation Act on the reason that the plaintiff should have explained every day''s delay. Thus, pedantic approach for considering the application for condonation of delay has been depreciated by the Hon''ble Supreme Court in the Case of Collector Land Acquisition, Anantnag & another Vs. Mst. Katiji & Ors. reported in AIR (1987)SC1353 made by the Supreme Court as follows:-

"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner."

In the case of Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (dead) by LRs & others, reported in 2009(1)MPLJ 510 the Hon''ble Supreme Court has held in para 8 that:-

"8. The principles applicable in considering applications for setting aside abatement may thus be summarised 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 bona fides, 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 the present matter nothing is on record which shows that the applicant had knowledge of the factum of death of defendant No. 12 Bhagat Singh from the beginning and he has not filed any application for bringing his legal representative on record.

From the perusal of the order-sheet dated 20.06.2014 of the trial Court. It appears that the counsel for the applicant first time invited the attention of the Court towards the death of defendant No. 12 and prays for time for moving appropriate application for bringing the legal heirs of defendant No. 12 on record, so it cannot be said that the applicant has filed the applications beyond 90 days from the knowledge of the death of defendant No. 12.

By taking this view of the matter, this miscellaneous appeal is allowed and the impugned order dated 10.02.2015 is set aside and the delay is condoned and abatement is set aside. The legal representative of the deceased defendant No. 12 are permitted to be brought on

record.

The trial Court is directed to proceed further with the suit in accordance with law.

Copy of the order be sent to the trial Court for information and compliance.