& Ors. Vs. Koppisetti Subba Rao & Ors.  INSC 699 (8 April 2009)
IN THE SUPREME
COURTOF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2240 OF 2009
(Arising out of SLP (C) No.10553 of 2007) Katari Suryanarayana & Ors. ...
Appellants Versus Koppisetti Subba Rao & Ors. ... Respondents
S.B. Sinha, J.
of abatement of an appeal, as envisaged under Order 22 Rule 9 of the Code of
Civil Procedure is involved in this appeal which arises out of a judgment and
order dated 26.12.2006 passed by a learned Single Judge of the High Court of
Judicature Andhra Pradesh at Hyderabad in Second Appeal No.192 of 1997
dismissing an application of the appellant herein to 2 condone the delay of
2381 days and 2601 days respectively in bring on records, the legal heirs and
representatives of two respondents therein being respondents No.2 and 3 holding
that the second appeal preferred by them must be dismissed having abated, since
cause of action therefor was indivisible.
adverting to the question involved, we may notice the fact of the matter.
The parties hereto
are neighbours. The dispute between them arose in relation to user of a lane.
Appellants claim that they were entitled to use the passage in exercise of
their right of easement. They purchased some property including the 1/12th
right of the vendors in the disputed suit land on or about 6.11.1985. Prior
thereto, they were said to have been enjoying an easmentary right thereover.
filed a suit in the Court of Principal District Munsif, Ramachandrapuram on or
about 27.12.1985 praying, inter alia, for a decree for grant of mandatory
injunction as also a decree for permanent injunction against the appellants
restraining them from using the land in dispute. The said suit was dismissed by
the learned Trial Judge by a judgment and decree dated 15.6.1993.
preferred an appeal thereagainst. The Subordinate Judge, Ramachandrapuram
allowed the said appeal by a judgment and decree dated 22.11.1996 holding that
they being the owners of the land in suit, were entitled to a decree for
mandatory as also permanent injunction.
approached the High Court in the year 1997 aggrieved by and dissatisfied with
the said judgment and decree of the First Appellate Court by preferring a
second appeal which was marked as SA No.192 of 1997. Indisputably during the
pendency of the said appeal; whereas Respondent No.3 expired on 31.5.1999,
Respondent No.2 expired on 14.1.2000. No application for their substitution
within the period prescribed under Order XXII Rule 9 of the Code of Civil
Procedure was filed.
Appellant filed an
application for bringing on record the heirs and legal representatives of the
said respondent Nos.2 and 3 only in December 2006 alleging that they had been
informed thereabout by their counsel only on 19.11.2006. An application for
condonation of delay in filing the said application was also filed. The said
applications, as noticed hereinbefore, were barred by 2381 days and 2601 days
respectively. By reason of the impugned judgment and order, the High Court
refused to condone the delay in bringing on records the heirs and legal
representatives of respondent Nos.2 and 3. Consequently, as indicated
hereinbefore, it was held that the appeal had abated.
G. Ramakrishna Prasad, learned counsel appearing on behalf of the appellant,
would urge :
(1) The High Court
committed a grave error insofar it failed to take into consideration the fact
that the appellants were not aware of the consequences of the death of the
respondents and they had come to know thereabout only through the counsel at a
much later state. In any event, the provision of Order 22 Rule 10A of the Code
of Civil Procedure mandating the counsel of the deceased to duly inform the
Court in regard to their clients passing away having not been complied with,
the impugned judgment cannot be sustained.
(2) A distinction
must be borne in mind in regard to application of Order 22 Rule 9 in a civil
suit where the parties are required to appear on each and every date of hearing
and a Second Appeal and an appeal as the same where the matter is listed after
a few years and in that view of the matter, a liberal view in the matter of
condonation of delay should be taken.
T.V. Ratnam, learned counsel appearing on behalf of the respondents, on the
other hand, would urge :
(i) The parties
having been living in a village and that too being neighbours, it is idle to
contend that they were not aware of the dates of death of the original
respondent Nos. 2 and 3.
(ii) As limitation
for filing application for setting aside the abatement of the proceedings runs
from the date of death and not from the date of knowledge thereabout, the High
Court must be held to have correctly determined the issue before it.
adverting to the rival contentions of the parties, as noticed hereinbefore, we
may notice the relevant provisions of the Code of Civil Procedure.
Order XXII of the
Code provides for the consequences arising out of death, marriage and
insolvency of parties. Rule 1 thereof provides that the death of a plaintiff or
defendant shall not cause the suit to abate if the right to sue survives. Rule
2 lays down the procedure where one of several plaintiffs died and the right to
Order XXII Rule 3
lays down the procedure in case of death of one of the several plaintiffs or
sole plaintiff for bring on record the heirs and legal 6 representatives of a
deceased plaintiff or one of the plaintiffs, an application is required to be
filed within the period prescribed therefor. The period prescribed for such an
application indisputably is 90 days. Sub-rule 2 of Rule 3 of Order XXII
provides for the consequences of not filing such an application, that is, that
the suit shall abate so far as the deceased plaintiff is concerned. A similar
procedure has been laid down in case of death of one of the several defendants
or a sole defendant in Rule 4 of Order XXII.
Rule 9 of Order XXII
provides for the effect of abatement or dismissal, stating :
"9. Effect of
abatement or dismissal.--(1) Where a suit abates or is dismissed under this
Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or
the person claiming to be the legal representative of a deceased plaintiff or
the assignee or the receiver in the case of an insolvent plaintiff may apply
for an order to set aside the abatement or dismissal; and if it is proved that
he was prevented by any sufficient cause from continuing the suit, the Court
shall set aside the abatement or dismissal upon such terms as to costs or
otherwise as it thinks fit.
(3) The provisions of
section 5 of the 'Indian Limitation Act, 1877 (15 of 1877), shall apply to
applications under sub-rule (2).
in this rule shall be construed as barring, in any later suit, a defence based
-on the facts which constituted the cause of 7 action in the suit which had
abated or had been dismissed under this Order."
Rule 10A of Order
XXII provides for the duty of a pleader to communicate to the court death of a
is now trite by reason of various decisions of this Court that different
considerations arise in the matter of condoning the delay in filing an
application for setting aside an abatement upon condonation of delay in a suit
and an appeal. It is furthermore neither in doubt nor in dispute that such
applications should be considered liberally. The Court would take a more liberal
attitude in the matter of condonation of delay in filing such an application.
There are, however, exceptions to the said rule.
hereto were neighbours. They were fighting over the right to use a lane which
connects their respective residential houses. It is, therefore, difficult for
us to appreciate that the appellant was not aware of the dates of death of
respondent Nos.2 and 3.
It may be true that a
distinction exists where an application for setting aside of the abatement is
filed in a suit and the one which is required to be filed in a second appeal
before the High Court but the same, in our opinion, by itself may not be
sufficient to arrive at a conclusion that the parties were 8 not aware of the
consequences thereof. Appellants themselves rely on the provisions of Order
XXII Rule 10A of the Code of Civil Procedure, which was inserted by reason of
Code of Civil Procedure (Amendment) Act, 1976.
It does not, however,
provide for consequences. It does not take away the duty on the part of the
plaintiff or the appellant, as the case may be, to file an application for
condonation of delay in bringing on record the heirs and legal representatives
of a deceased plaintiff/appellant or defendant/respondent within the period
In Union of India v.
Ram Charan & Ors. [(1964) 3 SCR 467], a Three Judge Bench of this Court,
"... 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. This, however, does not mean that
the Court should readily accept whatever the appellant alleges to explain away
his default. It has to scrutinize it and would be fully justified in
considering the merits of the evidence led to establish the cause for the appellant's
default in 9 applying within time for the impleading of the legal
representatives of the deceased or for setting aside the abatement.
It is true, as
contended, that it is no duty of the appellant to make regular enquiries from
time to time about the health or existence of the opposite party, but it does
not mean that the mere fact of the appellant's coming to know of the
respondent's death belatedly will, by itself, justify his application for
setting aside the abatement. That is not the law. Rule 9 of O. XXII of the Code
requires the plaintiff to prove that he was prevented by any sufficient cause
from continuing the suit. The mere allegation about his not coming to know of
the death of the opposite party is not sufficient. He had to state reasons which,
according to him, led to his not knowing of the death of the defendant within
reasonable time and to establish those reasons to the satisfaction of the
Court, specially when the correctness of those reasons is challenged by the
legal representatives of the deceased who have secured a valuable right on the
abatement of the suit."
It was furthermore
"The period of
limitation prescribed for making such an application is three months, under
171 of the First
Schedule to the Limitation Act.
This is a
sufficiently long period and appears to have been fixed by the legislature on
the expectancy that ordinarily the plaintiff would be able to learn of the
death of the defendant and of the persons who are his legal representatives
within that period. The legislature might have expected that ordinarily the
interval between two successive hearings of a suit will be much within 10
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. The legislature further seems to have taken into account that there
may be cases where the plaintiff may not know of the death of the defendant as
ordinarily expected and, therefore, not only provided a further period of two
months under art. 176 for an application to set aside the abatement of the suit
but also made the provisions of s. 5 of the Limitation Act applicable to such
applications. Thus the plaintiff is allowed sufficient time to make an
application to set aside the abatement which, if exceeding five months, be
considered justified by the Court in the proved circumstances of the case. It
would be futile to lay down precisely as to what considerations would
constitute 'sufficient cause' for setting aside the abatement or for the
plaintiff's not applying to bring the legal representatives of the deceased
defendant on the record or would be held to be sufficient cause for not making
an application to set aside the abatement within the time prescribed.
But it can be said
that the delay in the making of such applications should not be for reasons
which indicate the plaintiff's negligence in not taking certain steps which he
could have and should have taken. What would be such necessary steps would
again depend on the circumstances of a particular case and each case will have
to be decided by the Court on the facts an circumstances of the case.
Any statement of
illustrative circumstances or facts can tend to be a curb on the free exercise
of its mind by the Court in determining whether the facts and circumstances of
a particular case amount to 'sufficient cause' or not. Courts have to use their
discretion in the matter soundly in the interests of justice."
The aforementioned decision has been noticed by this Court in Bhag Singh &
Ors. v. Major Daljit Singh & Ors. 1987 (Supp) SCC 685], to opined:
"The law is now
well settled by several decisions which have been cited before us, Prem Nath v.
M/s. Kandoomal Rikhiram and Hanuman Dass v. Pirthivi Nath as well as of this
Court reported in Union of Inaid v. Ram Charan that the court while considering
an application under Section 5 of the Limitation Act will consider the facts
and circumstances not for taking too strict and pedantic stand which will cause
injustice but to consider it from the point of taking a view which will advance
the cause of justice."
In that case,
however, the application for condonation was allowed.
Reliance has been
placed by Mr. Ramakrishna Prasad on a decision of this Court in Bhag Mal @ Ram
Bux & Ors. v. Munshi (Dead) by LRs & Ors. [(2007) 11 SCC 285], wherein
it was held :
"12. It is no
doubt true that in terms of Section 3 of the Limitation Act, 1963 as also the
provisions of the said Act, a suit must be filed within the prescribed period
of limitation. The civil court has no jurisdiction to extend the same.
13. However the
provisions of the Limitation Act should be construed in a broad manner.
Different 12 provisions of the Limitations Act may require different
constructions, as for example, the court exercised its power in a given case
liberally in condoning the delay may have to be taken into consideration for
examining its correctness by the court in each case. We however may not be
understood to lay down a law that the same principle would apply in case of
construction of section 3 of the limitation Act."
It was furthermore
provisions of statute of limitation cannot be construed in a pedantic manner.
This is now well known principle of law. Had the appeal been dismissed on merit,
indisputably the period of limitation would have started from the date of
dismissal of the second appeal. The respondents themselves preferred an appeal.
The appeal was a continuation of a suit. The appellants herein could not thus,
have been held to be aware of the fact that during the pendancy thereon Bansi
would die or the appeal shall abate. Let us consider a hypothetical situation.
An appeal abates after three years of the judgment and decree passed by the
first appellate court and in that situation the appellant would have no chance
to reap the benefit thereof, if the submission of the learned counsel appearing
on behalf of the respondent is accepted.
The law in our
opinion, cannot be construed in a manner which would defeat the ends of
Reliance has also
been placed on a recent decision of this Court in Perumon Bhagwathy Devaswom,
Perinadu Village v. Bhargavi Amma 13 (Dead) by LRs & Ors. [(2008) 8 SCC
321]. Raveendran J, speaking for the Bench, upon noticing a large number of
decisions, held :
"9. 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.
have stood diluted in view of subsequent insertion of sub-rule (5) in Rule 4
and addition of Rule 10A in 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 client."
applicable for the purpose of considering applications for setting aside
abatement had been summarized, inter alia, directing :
"(i) The words
"sufficient cause for not making the application within the period of
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.
14 (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 15 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."
Having said so, the
learned Judge referred to some factors which would have a bearing for the
purpose of determining `sufficient cause', in particular, where a regular suit
is pending vis-`-vis an appeal is pending before a High Court, stating :
when an appeal is pending in a High Court, dates of hearing are not fixed
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 16 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 lived in
the immediate vicinity or were related or the court issues a notice to him
informing the death of the respondent."
The learned Judge had
brought about a clear distinction between a case where the parties had been
living in immediate vicinity or were related to the Court or had issued notice
on him informing the death of the respondent and in other cases.
13. It is not in
dispute that the appellants were neighbours. They were co-sharers. The
respective dates of death of the respondent Nos.2 and 3, thus, were known to
them. It is difficult to conceive that the petitioners were not in touch with
their learned advocates from 1999 to December 2006. If not every week, they are
expected to contact their lawyers once in a year. Ignorance of legal
consequence without something more would, in our opinion, be not sufficient to
condone such a huge delay. Appellants are literates. They have been fighting
their cases for a long time. The High Court in its impugned judgment has
categorically arrived at a finding that 17 no sufficient cause has been shown
for the purpose of condonation of delay in bringing on record the names of the
heirs or legal representatives of the deceased respondent Nos.2 and 3.
pleaded about the intimation from their counsel.
There is nothing on
record to show whether the said intimation was written or oral.
14. In vies view of
the matter, we are of the opinion that it is not a fit case where this Court
should exercise its discretionary jurisdiction under Article 136 of the
Constitution of India. This appeal is dismissed accordingly. No costs.
[Dr. Mukundakam Sharma]