of Madhya Pradesh Vs. S.S. Akolkar  INSC 135
(25 January 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 AIR 1984 1996 SCC (2) 568 JT 1996 (2) 286 1996 SCALE (2)130
O R D
learned counsel for both sides.
respondent's Civil Suit No.2-B of 1970 to recover Rs.20,644/- with
proportionate costs was decreed by the District Court, Mandsaur. First Appeal
No.57/76 filed by the appellant was pending in the High Court. When the matter
had come up on March
16, 1983 for hearing,
the counsel for the respondent had informed that the respondent had died on December 31, 1980 and he gave the names of his legal
representatives. The application for substitution of the legal representatives
under Order 22, Rule 4 of the CPC was filed on April 8, 1983, with a delay of 15 days. The applications for setting
aside abatment and delay were dismissed by the High Court; consequently it
dismissed the appeal. Hence, this appeal by special leave.
contended by Shri Bachawat, learned senior counsel appearing for the State,
that the delay was properly explained. In the circumstances, the High Court was
not justified in refusing to condone the delay on bringing the legal
representatives on record and setting aside the abatement. Shri Gambhir,
learned counsel for the respondent, contended that in spite of the respondent's
counsel having informed the counsel for the State of the death and having given
the names of the legal representatives, no steps were taken and no diligence
was shown. The delay, therefore, was not properly explained. The High Court was
right in refusing to condone the delay. The High Court proceeded on the premise
that no explanation was given for not taking steps to bring legal representatives
on record and even accepting that respondent had come to know about the death
of the plaintiff on March 16, 1983, and though the application was signed on
April 7, 1983, the application had come to be filed on April 8,1983. This would
show that there was no diligence on the part of the respondent and no proper
explanation was given.
find that the approach of the High Court is wholly untenable and unsustainable.
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 notorious that in Government proceedings, no one takes personal
responsibility and each would pass over the responsibility to the other
officer. It is common knowledge that almost 50% of the cases filed in the
Supreme Court are barred by limitation. Delay is equally usual in private
cases. The Court examines each case on merits. The counsel for the respondent
had informed the death of the principal respondent Akolkar on March 16, 1983. It would be obvious that counsel
for the State has to intimate the concerned officer who in turn is required to
have the details ascertained through his subordinates by deputing the concerned
officer to ascertain the further details of the legal representatives and feed
the officer with all factual details. In the process, delay would occur.
the applications came to be prepared on April 7, 1983 and were filed next day. It would
be obvious that they had acted with diligence in collecting the information and
filing the petitnon. In the process, a short delay had occurred.
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 case, the Court may refuse to condone the delay under Section 5 in
filing the appeals.
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.
these circumstances, we are of the opinion that the High Court was not right in
refusing to set aside the abatement and to condone the delay in filing of the
petition to bring the by legal representatives on record.
delay is condoned. The abatement is set aside and the legal representatives are
brought on record. The High Court is requested to dispose of the appeal as
expeditiously as possible within two months from the date of the receipt of the
order as this is very old appeal.
appeal is allowed. No costs.
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