Surtan vs Baboo and others

T.S. Doabia, J.

The brief facts which have led to the filing of this petition under article 226 of the Constitution of India, be noticed:

There was a civil litigation between one Raghunath, Bhogilal and Manila Rajodevi. The present petitioner figured as a defendant. The suit was decreed. The suit was decreed on 26th of September, 1977. The present petitioner, accordingly filed an appeal. An appeal was preferred on 5th of October, 1977. During the pendency of the appeal, Raghunath died. It is stated that he died some where in 1988. Application for bringing his legal representatives on record was not filed within limitation. The appeal was accordingly said to have abated partially. The reasoning given for coming to this conclusion was that the present petitioner had not taken any steps within the stipulated period. The fact that the factor of death was brought to the notice of the petitioner on 3rd of October 1989 and no application was filed was one of the factors which went against the petitioner. It is this portion of the order passed by the Court below which is being impugned in the present petition.

It is not a dispute that the petitioner belongs to a rural area. As to what parameters are to be applied in the matters of condonation of delay when litigants come from rural background be examined.

The Supreme Court of Ram Sumiran and Others Vs. D.D.C. and Others, condoned the delay of 6 years and set aside the abatement. In the above case, the defaulting party was aware of the death yet legal heirs were not brought on record. The relevant observations made by the Supreme Court be noticed. These are as under:-

But merely because no application was made by the appellants for bringing the legal representatives of the deceased respondent No. 5 on record we do not think that in the circumstances of the present case that would be a valid ground for refusing to grant the application of the appellants for setting aside the abatement and bringing the legal representatives of the deceased respondent No. 5 on record because the appellants are admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased respondent No. 5 should have been granted.

Again in another decision reported as Sital Prasad Saxena (dead) by Lrs. v. Union of India and others AIR 1985 SC, 1, delay was condoned. Reliance was placed on an earlier decision given by the Court in Bhagwan Swaroop v. Moolchand, (1983 SC 355). It was observed that once an appeal is pending then the parties are not expected to keep a constant watch on the continued existence of the parties to the appeal, The delay was accordingly, condoned and the matter was ordered to be decided on merits. Following observations were made:-

Approach to the application seeking condition of delay in moving the application for substitutions of parties who died during the pendency of civil appeal in the High Court has to be as observed by this Court in Bhagwan Swaroop and Others Vs. Mool Chand and Others, and Hansraj VS . Sunderlal Agarwal, (1982) 1 SCC 476 . In the present case the High Court unfortunately committed an error in rejecting the application for condoning the delay. It is the High Court which had to satisfy itself that the petitioner made out sufficient cause which prevented him from moving the application for substitution in time and not the trial Court. The High Court may call for report of the trial Court but then cannot adopt the approach of a Court exercising revisional jurisdiction. It must examine the material collected by the trial Court and come to its own conclusion. In this case the High Court observed that it was not persuaded to take a view different from the one taken by the trial Court. This is impermissible.

In the present case, the appeal was pending Since 1977. The death is said to have taken place in the year 1988. The fact that the legal representatives of Raghunath also preferred an application or coming on record on 24th of November 1987 can also not be ignored. Again the period between 3rd of October, 1989 that is filing of the application and the filing of the application is merely two months.

Thus, looking from any point of view this is a fit case for condoning the delay. Applying the ratio of the decisions noted above, it would be just and proper to condone the delay. The partial abatement which is said to have taken place is accordingly set aside. The appeal be decided on merits. The petitioner shall, however, pay costs, of litigation of this Court. Costs Rs. 200-

Disposed of accordingly.