Devaswom Perinadu VILL Vs. Bhargavi Amma (D) Thr. LRS.  INSC 1097 (11
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4440 OF 2008 [Arising
out of SLP (C) No.6111 of 2006] Perumon Bhagvathy Devaswom, Perinadu Village
... Appellant (s) Bhargavi Amma (Dead) By LRs & Ors. ... Respondents ORDER
appeal is by the appellant in Second Appeal No.147 of 1993 on the file of the
High Court of Kerala. During the pendency of the said appeal, the second
respondent before the High Court, died on 17.4.2002. In that behalf, the
appellant filed the following three applications on 9.10.2003 : (i) an
application to set aside the abatement of the appeal against second respondent
in the second appeal; (ii) an application to condone the delay in 2 filing the
said application to set aside the abatement; and (iii) an application to bring
on record, the LRs of the deceased second respondent in the second appeal. The
High Court, being of the view that the delay of 394 days was not satisfactorily
explained, dismissed the application for condonation of delay as also the
application for setting aside the abatement and consequently, dismissed the
application for bringing the LRs on record, by three separate orders dated
5.10.2005. As the deceased second respondent in the second appeal was the sole
plaintiff in the original suit from which the second appeal arose, the second
appeal was closed on 5.10.2005, as having abated. The said four orders are
challenged in this appeal by special leave.
appellant contends that there was no negligence or laches on its part and it
had satisfactorily explained the reasons for the delay which were due to
circumstances beyond its control. The appellant, a Devoswom managed by a
Committee, gave the following explanation for the delay:
When the second
appeal was filed in 1993, it was managed by an earlier Managing Committee.
Later in a suit relating to the management of the Devoswom, the Sub-Court,
Kollam appointed a Receiver to manage the Devoswom. Thereafter elections were
held on 25.5.2003 and the newly elected Committee of Management assumed office
on 8.6.2003. The new 3 Committee of Management was unaware of the pendency of
the second appeal and, therefore, not in a position to file necessary
applications in time. The Committee came to know about the appeal only when it
received a communication dated 7.9.2003 from the lawyer about the case.
Thereafter it ascertained the particulars of the LRs. of the deceased and filed
the applications on 9.10.2003.
question that therefore arises for our consideration is whether the High Court
ought to have condoned the delay and set aside the abatement.
To consider this
question, it is necessary to refer to the relevant provisions of order 22 CPC
and their scope.
22 Rule 11 CPC provides that in the application of Order 22 to appeals, as far
as may be the words `plaintiff', `defendant' and `suit' shall respectively
include an appellant, a respondent and an appeal. Rule 1 of Order 22 provides
that the death of a respondent shall not cause the appeal to abate if the right
to sue survives.
4 of Order 22 prescribes the procedure in case of death of a respondent.
Sub-Rule (1) of Rule 4 provides that where a respondent dies 4 and the right
to sue does not survive against the surviving respondents alone or where the
sole respondent dies and the right to sue survives, the court on an application
made in that behalf, shall cause the legal representative of the deceased
respondent to be made a party to the appeal and shall proceed with the appeal.
Sub-rule (3) provides that where no application is made to cause the legal
representative of the deceased respondent to be made party, the appeal shall
abate as against the deceased respondent. (The word `abate' in the context of
Order 22 CPC means termination of the suit or appeal on account of the death of
a party materially interested).
Article 120 of the Limitation Act, 1963, the period of limitation to have the
legal representative of a deceased respondent made a party to an appeal under
the Code of Civil Procedure, is 90 days from the date of death of the
respondent. Article 121 provides that for an application under the Code of
Civil Procedure for an order to set aside abatement, the period of limitation
is 60 days from the date of abatement. Section 5 of the Limitation Act provides
that any application may be admitted after the prescribed period if the
applicant satisfies the court that he had sufficient cause for not making the
application within such period.
(5) of Rule 4 of Order 22 now gives a clear indication as to what will be
sufficient cause. It provides that where the appellant was ignorant of the
death of a respondent, and for that reason could not make an application for
the substitution of the legal representative of the deceased respondent under
Rule 4 within the time specified in the Limitation Act, 1963, and in
consequence, the appeal has abated, and the appellant applies after the expiry
of the period specified in the Limitation Act for setting aside the abatement
and also for the admission of that application under section 5 of the
Limitation Act, on the ground that he had by reason of such ignorance,
sufficient cause for not making the application within the period specified in
the Limitation Act, the court shall, in considering the application under
section 5 of the Limitation Act, have due regard to the fact of such ignorance,
10A of Order 22 provides that whenever a pleader appearing for a party to the
suit comes to know of the death of that party, he shall inform the court about
it, and the court shall thereupon give notice of such death to the other party.
regard to the wording of Rule 4, it is clear that when a respondent dies and an
application to bring his legal representative on record is not made, abatement
takes place on the expiry of the prescribed period of 90 days, by operation of
law. Abatement is not dependent upon any judicial adjudication or declaration
of such abatement by a judicial order. It occurs by operation of law. But
nevertheless `abatement' requires judicial cognizance to put an end to a case
as having abated. To borrow a phrase from Administrative Law (used with
reference to void orders), an appeal bears no brand on its forehead that it has
`abated', nor does it close itself automatically on abatement. At some stage,
the court has to take note of the abatement and record the closure of the case
as having abated (where deceased was a sole respondent) or record that the
appeal had abated as against a particular respondent (if there are more than
one and the cause of action survives against the others).
should be the approach of courts while considering applications under section 5
of Limitation Act, 1963, has been indicated in several decisions. It may be
sufficient to refer to two of them. In Shakuntala Devi Jain v. Kuntal Kumari
[AIR 1969 SC 575], this Court reiterated the following classic statement from
Krishna vs. Chathappan [1890 ILR 13 Mad 269] :
7 "... Section
5 gives the courts a discretion which in respect of jurisdiction is to be
exercised in the way in which judicial power and discretion ought to be
exercised upon principles which are well understood; the words `sufficient
cause' receiving a liberal construction so as to advance substantial justice
when no negligence nor inaction nor want of bona fides is imputable to the
In N.Balakrishnan v.
M.Krishnamurthy [1998 (7) SCC 123], this Court held:
"It is axiomatic
that condonation of delay is a matter of discretion of the court. Section 5 of
the Limitation Act does not say that such discretion can be exercised only if
the delay is within a certain limit. Length of delay is no matter,
acceptability of the explanation is the only criterion.
Sometimes delay of
the shortest range may be uncondonable due to a want of acceptable explanation
whereas in certain other cases, delay of a very long range can be condoned as
the explanation thereof is satisfactory.
Once the court
accepts the explanation as sufficient, it is the result of positive exercise of
discretion and normally the superior court should not disturb such finding,
much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or arbitrary or perverse. But it is a different matter
when the first court refuses to condone the delay. In such cases, the superior
court would be free to consider the cause shown for the delay afresh and it is
open to such superior court to come to its own finding even untrammeled by the
conclusion of the lower court.
The primary function
of a court is to adjudicate the dispute between the parties and to advance
substantial justice...... Rules of limitation are not meant to destroy the
rights of parties. They are meant to see that parties do not resort to dilatory
tactics, but seek their remedy promptly.
A court knows that
refusal to condone delay would result in foreclosing a suitor from putting forth
his cause. There is no presumption that delay in approaching the court is
always deliberate. This Court has held that the words "sufficient
cause" under Section 5 of the Limitation Act should receive a liberal
construction so as to advance substantial justice.
It must be remembered
that in every case of delay, there can be some lapse on the part of the
litigant concerned. That alone is not enough to turn down his plea and to shut
the door against him. If the explanation does not 8 smack of mala fides or it
is not put forth as part of a dilatory strategy, the court must show utmost
consideration to the suitor. But when there is reasonable ground to think that
the delay was occasioned by the party deliberately to gain time, then the court
should lean against acceptance of the explanation."
Court has also considered the scope of Rules 4 and 9 of Order 22 in several
decisions. We will refer to them. In Union of India vs. Ram Charan (Deceased)
by LRs. [AIR 1964 SC 215], this Court observed thus :
of the Code are with a view to advance the cause of justice. Of course, the
Court, in considering whether the appellant has established sufficient cause
for his not continuing the suit in time or for not applying for the setting
aside of the abatement within time, need not be over-strict in expecting such
proof of the suggested cause as it would accept for holding certain fact
established, both because the question does not relate to the merits of the
dispute between the parties and because if the abatement is set aside, the
merits of the dispute can be determined while, if the abatement is not set
aside, the appellant is deprived of his proving his claim on account of his
culpable negligence or lack of vigilance.
It is true that it is
no duty of the appellant to make regular enquiries from time to time about the
health or existing of the respondent."
This Court also made some observations in Ram Charan (Supra) about the need to
explain, in addition to alleging that the plaintiff/appellant not being aware
about the death, the reasons for not knowing about the death within a
reasonable time. Those observations have stood diluted in view of subsequent
insertion of sub-rule (5) in Rule 4 and addition of Rule 10A in 9 Order 22 CPC
by Amendment Act 104 of 1976, requiring (i) the court to take note of the
ignorance of death as sufficient cause for condonation of delay, (ii) the
counsel for the deceased party to inform the court about the death of his
In Ram Nath Sao vs.
Gobardhan Sao [2002 (3) SCC 195] this Court observed thus :
"12. Thus it
becomes plain that the expression "sufficient cause" within the
meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other
similar provision should receive a liberal construction so as to advance
substantial justice when no negligence or inaction or want of bona fides is
imputable to a party. In a particular case whether explanation furnished would
constitute "sufficient cause" or not will be dependent upon facts of
each case. There cannot be a straitjacket formula for accepting or rejecting
explanation furnished for the delay caused in taking steps. But one thing is
clear that the courts should not proceed with the tendency of finding fault
with the cause shown and reject the petition by a slipshod order in
over-jubilation of disposal drive. Acceptance of explanation furnished should
be the rule and refusal, an exception, more so when no negligence or inaction
or want of bona fides can be imputed to the defaulting party. On the other
hand, while considering the matter the courts should not lose sight of the fact
that by not taking steps within the time prescribed a valuable right has
accrued to the other party which should not be lightly defeated by condoning
delay in a routine-like manner. However, by taking a pedantic and
hypertechnical view of the matter the explanation furnished should not be
rejected when stakes are high and/or arguable points of facts and law are
involved in the case, causing enormous loss and irreparable injury to the party
against whom the lis terminates, either by default or inaction and defeating
valuable right of such a party to have the decision on merit. While considering
the matter, courts have to strike a balance between resultant effect of the
order it is going to pass upon the parties either way."
10 In Sital Prasad Saxena (dead) by LRs. v. Union of India & Ors. [1985 (1)
SCC 163], this Court stated :
appeal is pending in the High Court, the heirs are not expected to keep a
constant watch on the continued existence of parties to the appeal before the
High Court which has a seat far away from where parties in rural areas may be
residing. And in a traditional rural family the father may not have informed
his son about the litigation in which he was involved and was a party. Let it
be recalled what has been said umpteen times that rules of procedure are
designed to advance justice and should be so interpreted as not to make them
penal statutes for punishing erring parties."
In State of Madhya
Pradesh vs. S. S. Akolkar - 1996 (2) SCC 568, this Court held :
"Under Order 22
Rule 10A, it is the duty of the counsel, on coming to know of the death of a
party, to inform it to the Court and the Court shall give notice to the other
party of the death. By necessary implication delay for substitution of legal
representatives begins to run from the date of knowledge.
It is settled law
that the consideration for condonation of delay Under Section 5 of Limitation
Act and setting aside of the abatement under Order 22 are entirely distinct and
different. The Court always liberally considers the latter, though in some
cases, the Court may refuse to condone the delay Under Section 5 in filing the
appeals. After the appeal has been filed and is pending, Government is not
expected to keep watch whether the contesting respondent is alive or passed
away. After the matter was brought to the notice of the counsel for the State,
steps were taken even thereafter after due verification belated application
came to be filed. It is true that Section 5 of Limitation Act would be
applicable and delay is required to be explained. The delay in official
business requires its broach and approach from public justice perspective."
principles applicable in considering applications for setting aside abatement
may thus be summarized as follows :
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
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.
decisive factor in condonation of delay, is not the length of delay, but
sufficiency of a satisfactory explanation.
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.
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.
us next also refer to some of the special factors which have a bearing on what
constitutes sufficient cause, with reference to delay in applications for
setting aside the abatement and bringing the legal representatives on record.
first is whether the appeal is pending in a court where regular and periodical
dates of hearing are fixed. There is a significant difference between an appeal
pending in a sub-ordinate court and an appeal pending in a High Court. In lower
courts, dates of hearing are periodically fixed and a party or his counsel is
expected to appear on those dates and keep track of the case. The process is
known as `adjournment of hearing'. In fact, this Court in Ram Charan (supra)
inferred that the limitation period for bringing the legal representative might
have been fixed as 90 days keeping in mind the adjournment procedure :
might have expected that ordinarily the interval between two successive
hearings of a suit will be much within three months and the absence of any
defendant within that period at a certain hearing may be accounted by his
counsel or some relation to be due to his death or may make the plaintiff
inquisitive about the reasons for the other party's absence."
13 In contrast, when
an appeal is pending in a High Court, dates of hearing are not fixed
periodically. Once the appeal is admitted, it virtually goes into storage and
is listed before the court only when it is ripe for hearing or when some
application seeking an interim direction is filed. It is common for appeals
pending in High Courts not to be listed at all for several years. (In some
courts where there is a huge pendency, the non-hearing period may be as much as
10 years or even more). When the appeal is admitted by the High Court, the
counsel inform the parties that they will get in touch as and when the case is
listed for hearing. There is nothing the appellant is required to do during the
period between admission of the appeal and listing of the appeal for arguments
(except filing paper books or depositing the charges for preparation of paper
books wherever necessary). The High Courts are overloaded with appeals and the
litigant is in no way responsible for non- listing for several years. There is
no need for the appellant to keep track whether the respondent is dead or alive
by periodical enquiries during the long period between admission and listing
for hearing. When an appeal is so kept pending in suspended animation for a
large number of years in the High Court without any date being fixed for
hearing, there is no likelihood of the appellant becoming aware of the death of
the respondent, unless both 14 lived in the immediate vicinity or were related
or the court issues a notice to him informing the death of the respondent.
second circumstance is whether the counsel for the deceased respondent or the
legal representative of the deceased respondent notified the court about the
death and whether the court gave notice of such death to the appellant. Rule
10A of Order 22 casts a duty on the counsel for the respondent to inform the
court about the death of such respondent whenever he comes to know about it.
When the death is reported and recorded in the ordersheet/proceedings and the
appellant is notified, the appellant has knowledge of the death and there is a
duty on the part of the appellant to take steps to bring the legal
representative of the deceased on record, in place of the deceased. The need for
diligence commences from the date of such knowledge. If the appellant pleads
ignorance even after the court notifies him about the death of the respondent
that may be indication of negligence or want of diligence.
third circumstance is whether there is any material to contradict the claim of
the appellant, if he categorically states that he was unaware of 15 the death
of the respondent. In the absence of any material, the court would accept his
claim that he was not aware of the death.
it can safely be concluded that if the following three conditions exist, the
courts will usually condone the delay, and set aside the abatement (even though
the period of delay is considerable and a valuable right might have accrued to
the opposite party - LRs of the deceased - on account of the abatement) :
i. The respondent had
died during the period when the appeal had been pending without any hearing
dates being fixed;
ii. Neither the counsel
for the deceased respondent nor the Legal Representatives of the deceased respondent
had reported the death of the respondent to the court and the court has not
given notice of such death to the appellant.
iii. The appellant avers
that he was unaware of the death of the respondent and there is no material to
doubt or contradict his claim.
as in this case, the appeal was admitted in 1993 and did not come up for
hearing till 2005, and the respondent died in-between, the court should not
punish the appellant for his ignorance of the death of respondent, by refusing
to set aside the abatement. Lack of diligence or negligence can be attributed
to an appellant only when he is aware of the death and fails to 16 take steps
to bring the legal representatives on record. Where the appellant being unaware
of the death of respondent, does not take steps to bring the legal
representatives on record, there can be no question of any want of diligence or
this case, the appeal was not being listed periodically by the High Court.
Neither the counsel for the deceased second respondent in the High Court, nor
the legal representatives of the deceased respondent reported her death to the
High Court. There was no notice of death to the appellant. The appellant is an
institution which acts through its Managing Committee.
During the relevant
period, there was transition of management from a Court Receiver to an elected
managing committee. An affidavit was filed on behalf of the appellant that its
new Committee was unaware of the pendency of the appeal. Being unaware of the
pendency of appeal is equivalent to being unaware of the death of a respondent.
This may happen in two circumstances. First is where the appellant himself is
dead and his LRs have newly come on record. Second is where the appellant is an
institution or company and a new Committee or Board of Management takes over
its management. In such an event, even if they knew about the death of a
person, they may not know the significance or relevance of death of such a 17
person with reference to a pending appeal if they do not know about the appeal.
As the appeal had already been admitted in 1993, and as hearing dates were not
fixed periodically, the new Committee had no way of knowing that the appeal was
pending, that Bhargavi Amma was a party to the appeal and that the Legal Representatives
of the deceased Bhargavi Amma (second respondent before the High Court) had not
been brought on record. In the circumstances, we are of the view that the delay
was satisfactorily explained. The High Court ought to have condoned the delay,
set aside the abatement and permitted the appellant to bring the legal
representatives of the deceased respondent on record.
accordingly allow this appeal and set aside the orders dated 5.10.2005 of the
High Court dismissing the three applications and the consequential order dated
5.10.2005 closing the appeal as having abated.
delay is condoned. Abatement is set aside. The legal representatives of the
deceased second respondent in the second appeal are permitted to be brought on
record. The cause-title of the memorandum of second appeal before the High
Court shall be amended. The High Court will now proceed to hear the appeal on
merits in accordance with law. Parties to bear their respective costs.
(R. V. Raveendran)
(Lokeshwar Singh Panta)