Balwant
Singh (Dead) Vs. Jagdish Singh & Ors. [2010] INSC 484 (8 July 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL No. 1166 OF 2006 Balwant Singh
....Petitioner Versus Jagdish Singh & Ors. ...Respondents
Swatanter
Kumar, J.
1.
The Learned Single Judge of the High Court of Punjab and Haryana
at Chandigarh vide its Judgment dated 21 st May, 2003 set aside the concurrent
Judgment passed by the Appellate Authority, Ambala, dated 11th December, 2001
and that of the Rent Controller dated 27th September, 2000, passing an order of
ejectment against the respondents in exercise of the powers conferred under
Section 15 of the Haryana Urban Rent (Control of Rent and Eviction) Act, 1973
(for short `the Act'). The petition had been instituted by the landlord against
the tenant on the ground of non-payment of rent. The tenant had denied the
relationship of landlord and tenant and even claimed title to the said property
on the basis of an agreement dated 21st November, 1953 entered into between the
predecessor in interest of the petitioner. The ground taken for ejectment of
the tenant in the eviction petition was non- payment of rent which was only Rs.
200/- per month. As already noticed, the judgment of the Appellate Authority
was set aside by the High Court vide its judgment dated 21st May, 2003 and it
is this judgment of the High Court which has been assailed by way of a Special
Leave Petition before this Court. The leave to appeal was granted by the Court
vide order dated 13th February, 2006.
2.
During the pendency of the appeal on 28th November, 2007, the sole
petitioner died. From the record, it appears that no steps 2 were taken to
bring on record the legal representatives of the deceased appellant for a
considerable period of time on record.
Somewhere
on 15th April, 2010, I.A. No. 1 of 2010 has been filed along with I.A. No. 2 of
2010 praying for condonation of delay in filing the application for bringing
the legal heirs on record. As is evident from the above narrated facts, the
appellant died on 28th November, 2007 while the present applications have been
filed on or about 15th April, 2010. Thus, there is delay of 778 days in filing
these applications. The application for condonation of delay was seriously
contested on behalf of the non-applicants. It was argued that no sufficient
cause or even a reasonable cause has been shown for condoning the delay of more
than two years and the appeal has already abated. The application, besides
being vague at the face of it, contains untrue averments. As such, it is prayed
that the application should be dismissed and consequently, the appeal would not
survive for consideration.
3.
Firstly, we have to deal with I.A. No. 2 of 2010, which is an
application for condonation of delay in filing the application for bringing the
legal representatives on record. The Learned Counsel appearing for the
applicant stated that though no specific 3 provision had been stated in the
headings of any of the applications, I.A. No. 1 of 2010 should be treated as an
application under Order 22 Rule 3 read with Section 151, of Code of Civil
Procedure (hereinafter referred to as `CPC') while I.A. No. 2 of 2010 should be
treated as an application under Order 22 Rule 9 read with Section 5 of the
Limitation Act, 1962.
4.
At the very outset, we may notice that the delay in filing the
application I.A. No. 1 of 2010 is considerable and it cannot be disputed that
the onus to show that sufficient cause exists for condonation of delay lies
upon the applicant.
5.
It is obligatory upon the applicant to show sufficient cause due
to which he was prevented from continuing to prosecute the proceedings in the
suit or before the higher Court. Here there is admittedly, a delay of 778 days
in filing the application for bringing the legal representative on record. To
explain this delay, the applicant has filed a one page application stating that
they were not aware of the pendency of the appeal before the Court and came to
know, only in March, 2010 from their counsel that the case would be listed for
final disposal during the vacations in May, 4 2010. Then the applications, as
already noticed, were filed on 15 th April, 2010. In order to examine the
reliability and worthiness of the alleged sufficient cause for condonation of
delay, it will be appropriate to refer to paragraph 2 of the application which
is the only relevant paragraph out of the four paragraph application:
"That
the LRs. of the applicants are residing on different addresses because the LRs.
of the appellant/deceased are in service and they were not aware of the
pendency of any appeal before this Hon'ble Court. However, when the letter from
the counsel for Sh. Balwant Singh were received at home at Ambala that the
appeal is being listed for final hearing during vacation in the month of May,
2010 then these LRs. came to know about the pendency of the appeal. Thereafter
these LRs. contacted the counsel in the month of March, 2010 to find out the
position of the case. When they contacted the counsel at New Delhi these LRs.
the counsel was told about the death of Sh. Balwant Singh which had taken place
in November, 2007. It was further pointed out to the counsel that the LRs. were
not aware about the pendency of the appeal in this Court or about the
requirement of law to bring the LRs. on record after the death of Balwant
Singh. It is now they have come to know that the LRs. of Balwant Singh are
required to be brought on record otherwise the appeal would abate."
6.
It is clear from the bare reading of the above paragraph that the
applicants were totally callous about pursuing their appeal.
5 They
have acted irresponsibly and even with negligence. Besides this, they have not
approached the Court with clean hands. The applicant, who seeks aid of the
Court for exercising its discretionary power for condoning the delay, is
expected to state correct facts and not state lies before the Court.
Approaching the Court with unclean hands itself, is a ground for rejection of
such application. In para 2 of the I.A. NO. 1 of 2010, it has been shown that all
the legal representatives of the deceased are residents of 9050/5, Naya Bas,
Ambala City, (Haryana) and that there are no other legal heirs of the deceased.
However, in para 4 of the I.A. No. 2 of 2010, it has been stated that the LRs.
of the deceased were in service and were not aware of the pendency of the
appeal, implying that they were living at different places and the letter of
the lawyer was received at their residential address of Ambala.
The stand
taken in one application contradicts the stand taken in the other application.
Furthermore, it is stated that they were not aware of the pendency of the
appeal. This, again, does not appear to be correct inasmuch as one of the legal
representatives of the deceased, namely Har-Inder Singh was examined in the
Trial Court as AW4, who is the son of the deceased. It is difficult 6 for the
Court to believe that the person who has been examined as a witness did not
even take steps to find out the proceedings pending before the highest Court of
the land. Even the letter, alleged to have been written by the counsel, has not
been placed on record and the application ex facie lacks bona fide. There is no
explanation on record as to why the application was not filed immediately in
March 2010, as they had come to know that the appeal was to be listed for
hearing in the month of May, and still, till 15th April, 2010, no steps were
taken to file the application. The cumulative effect of the above conduct of
the legal representatives of the sole deceased, appellant clearly shows that
they have acted with callousness, irresponsibly and have not even stated true
facts in the application for condonation of delay. The approach and conduct of
the applicants certainly would invite criticism.
Moreover,
it will be difficult for the Court to exercise its discretionary power in
favour of the applicants. There is not even a whisper in the entire application
as to why, right from the death of the deceased in November, 2007, the
appellant did not take any steps whatsoever till 15th April, 2010 to inform
their counsel about the death of the deceased and to bring the legal 7
representatives on record.
7.
The counsel appearing for the applicant, while relying upon the
judgment of this Court in the case of Ram Sumiran v. D.D.C. [(1985) 1 SCC 431],
Mithailal Dalsangar Singh v. Annabai Devram Kini, [(2003) 10 SCC 691] and
Ganeshprasad Badrinarayan Lahoti v. Sanjeevprasad Jamnaprasad Chourasiya
[(2004) 7 SCC 482] argued that this Court should take a liberal view and should
condone the delay, irrespective of the above facts and in all these judgments
the delay has been condoned by the Court. As per contra, the submission of the
counsel for the non-applicants is that the appeal has abated and no cause, much
less sufficient, has been shown for setting aside the abatement. A right
accrues in favour of the respondents in appeal and it will be unfair and unjust
to take away their vested right on such flimsy and baseless grounds. It is a
settled position of law that a suit or an appeal abates automatically if the
legal representatives, particularly of the sole plaintiff or appellant, are not
brought on record within the stipulated period. Rule 1 of Order 22, CPC
mandates that the death of a defendant or a plaintiff shall not cause the suit
to abate if the right to sue survives. In other words, in the event of death of
8 a party, where the right to sue does not survive, the suit shall abate and
come to an end. In the event the right to sue survives, the concerned party is
expected to take steps in accordance with provisions of this Order. Order 22
Rule 3, CPC therefore, prescribes that where the plaintiff dies and the right
to sue has survived, then an application could be filed to bring the legal
representatives of the deceased plaintiff/appellant on record within the time
specified (90 days). Once the proceedings have abated, the suit essentially has
to come to an end, except when the abatement is set aside and the legal
representatives are ordered to be brought on record by the Court of Competent jurisdiction
in terms of Order 22 Rule 9 (3), CPC. Order 22 Rule 9 (3) of the CPC
contemplates that provisions of Section 5 of the Indian Limitation Act,
1963 shall apply to an application filed under Sub Rule 2 of Rule 9 of Order
22, CPC. In other words, an application for setting aside the abatement has to
be treated at par and the principles enunciated for condonation of delay under
Section 5 of the Limitation Act are to apply para materia. Section 3 of the Limitation
Act requires that suits or proceedings instituted after the prescribed period
of limitation shall be dismissed. However, in 9 terms of Section 5, the
discretion is vested in the Court to admit an appeal or an application, after
the expiry of the prescribed period of limitation, if the appellant shows
`sufficient cause' for not preferring the application within the prescribed
time. The expression `sufficient cause' commonly appears in the provisions of
Order 22 Rule 9 (2), CPC and Section 5 of the Limitation Act, thus categorically demonstrating that they are to be
decided on similar grounds. The decision of such an application has to be
guided by similar precepts. It will be appropriate for us to trace the law
enunciated by this Court while referring, both the provisions of Order 22 Rule
9, CPC and Section 5 of the Limitation Act. In the case of Union of India v.
Ram Charan, [AIR 1964 SC 215], a three Judge Bench of this Court was concerned
with an application filed under Order 22 Rule 9, CPC for bringing the legal
representatives of the deceased on record beyond the prescribed period of
limitation. The Court expressed the view that mere allegations about belated
knowledge of death of the opposite party would not be sufficient. The Court
applied the principle of `reasonable time' even to such situations. While
stating that the Court was not to invoke its inherent powers under Section 151,
10 C.P.C. it expressed the view that the provisions of Order 22 Rule 9, CPC
should be applied. The Court held as under:
"8.
There is no question of construing the expression `sufficient cause' liberally
either because the party in default is the Government or because the question
arises in connection with the impleading of the legal representatives of the
deceased respondent.
The
provisions 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.
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 applying within time for the
impleading of the legal representatives of the deceased or for setting aside
the abatement.
xxx xxx
xxx 10....The procedure, requires an application for the making of the legal
representatives of 11 the deceased plaintiff or defendant a party to the suit.
It does not say who is to present the application. Ordinarily it would be the
plaintiff as by the abatement of the suit the defendant stands to gain.
However, an application is necessary to be made for the purpose. If no such
application is made within the time allowed by law, the suit abates so far as
the deceased plaintiff is concerned or as against the deceased defendant. The
effect of such an abatement on the suit of the surviving plaintiffs or the suit
against the surviving defendants depends on other considerations as held by
this Court in State of Punjab v.
Nathu
Ram, [AIR 1962 SC 89 and Jhanda Singh v. Gurmukh Singh, C.A. No. 344 of 1956,
D/- 10-4-1962 (SC). Anyway, that question does not arise in this case as the
sole respondent had died.
xxx xxx xxx
12....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. 171 for an application to set aside the abatement of the
suit, but also made the provisions of Section 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 12 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 and 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."
8.
In the case of P.K. Ramachandran v. State of Kerala, [(1997) 7 SCC
556] where there was delay of 565 days in filing the first appeal by the State,
and the High Court had observed, "taking into consideration the averments
contained in the affidavit filed in support of the petition to condone the
delay, we are inclined to allow the petition". While setting aside this
order, this Court found that the explanation rendered for condonation of delay
was neither reasonable nor satisfactory and held as under:
13
"3. It would be noticed from a perusal of the impugned order that the
court has not recorded any satisfaction that the explanation for delay was
either reasonable or satisfactory, which is an essential prerequisite to
condonation of delay.
4. That
apart, we find that in the application filed by the respondent seeking
condonation of delay, the thrust in explaining the delay after 12.5.1995 is:
".....at
that time the Advocate General's office was fed up with so many arbitration
matters (sic) equally important to this case were pending for consideration as
per the directions of the Advocate General on 2.9.1995."
5. This
can hardly be said to be a reasonable, satisfactory or even a proper
explanation for seeking condonation of delay.
In the
reply filed to the application seeking condonation of delay by the appellant in
the High Court, it is asserted that after the judgment and decree was
pronounced by the learned Sub-Judge, Kollam on 30-10-1993, the scope for filing
of the appeal was examined by the District Government Pleader, Special Law
Officer, Law Secretary and the Advocate General and in accordance with their
opinion, it was decided that there was no scope for filing the appeal but later
on, despite the opinion referred to above, the appeal was filed as late as on
18.1.1996 without disclosing why it was being filed. The High Court does not
appear to have examined the reply filed by the appellant as reference to the
same is conspicuous by its absence from the order. We are not satisfied that in
the facts and circumstances of this case, any 14 explanation, much less a
reasonable or satisfactory one had been offered by the respondent-State for
condonation of the inordinate delay of 565 days.
6. Law of
limitation may harshly affect a particular party but it has to be applied with
all its rigour when the statute so prescribed and the courts have no power to
extend the period of limitation on equitable grounds. The discretion exercised
by the High Court was, thus, neither proper nor judicious. The order condoning
the delay cannot be sustained.
This
appeal, therefore, succeeds and the impugned order is set aside. Consequently,
the application for condonation of delay filed in the High Court would stand
rejected and the miscellaneous first appeal shall stand dismissed as barred by
time. No costs."
9.
In the case of Mithailal Dalsangar Singh (supra), a Bench of this
Court had occasion to deal with the provisions of Order 22 Rule 9, CPC and
while enunciating the principles controlling the application of and exercising
of discretion under these provisions, the Court reiterated the principle that
the abatement is automatic and not even a specific order is required to be
passed by the Court in that behalf. It would be useful to reproduce paragraph 8
of the said judgment which has a bearing on the matter in controversy before
us:
15
"8. Inasmuch as the abatement results in denial of hearing on the merits
of the case, the provision of abatement has to be construed strictly. On the
other hand, the prayer for setting aside an abatement and the dismissal
consequent upon an abatement, have to be considered liberally. A simple prayer
for bringing the legal representatives on record without specifically praying
for setting aside of an abatement may in substance be construed as a prayer for
setting aside the abatement. So also a prayer for setting aside abatement as
regards one of the plaintiffs can be construed as a prayer for setting aside
the abatement of the suit in its entirety. Abatement of suit for failure to
move an application for bringing the legal representatives on record within the
prescribed period of limitation is automatic and specific order dismissing the
suit as abated is not called for. Once the suit has abated as a matter of law,
though there may not have been passed on record a specific order dismissing the
suit as abated, yet the legal representatives proposing to be brought on record
or any other applicant proposing to bring the legal representatives of the
deceased party on record would seek the setting aside of an abatement. A prayer
for bringing the legal representatives on record, if allowed, would have the
effect of setting aside the abatement as the relief of setting aside abatement
though not asked for in so many words is in effect being actually asked for and
is necessarily implied. Too technical or pedantic an approach in such cases is
not called for."
10.
Another Bench of this Court in a recent judgment of Katari
Suryanarayana v. Koppisetti Subba Rao, [AIR 2009 SC 2907] again had an occasion
to construe the ambit, scope and application of the expression `sufficient
cause'. The application for setting aside the abatement and bringing the legal
heirs of the deceased on record was filed in that case after a considerable
delay. The explanation rendered regarding the delay of 2381 days in filing the
application for condonation of delay and 2601 days in bringing the legal
representatives on record was not found to be satisfactory. Declining the
application for condonation of delay, the Court, while discussing the case of
Perumon Bhagvathy Devaswom v. Bhargavi Amma [(2008) 8 SCC 321] in its para 9
held as under:
"11.
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."
11.
The Learned Counsel appearing for the applicant, while relying
upon the cases of Ram Sumiran, Mithailal Dalsangar Singh and Ganeshprasad
Badrinarayan Lahoti (supra), contended that the Court should adopt a very
liberal approach and the delay should be condoned on the mere asking by the
applicant. Firstly, none of these cases is of much help to the applicant.
Secondly, in the case of Ram Sumiran (supra), the Court has not recorded any
reasons or enunciated any principle of law for exercising the discretion. The
Court, being satisfied with the facts averred in the application and
particularly giving benefit to the applicant on account of illiteracy and
ignorance, condoned the delay of six years in filing the application. This
judgment cannot be treated as a precedent in the eyes of the law. In fact, it
was a judgment on its own facts.
12.
In the case of Ganeshprasad Badrinarayan Lahoti (supra), the High
Court had rejected the application, primarily, on the ground that no separate
application had been filed for substitution and for setting aside the
abatement. The Court held that the principles of res judicata were not
applicable and the application 18 could be filed at a subsequent stage. Thus,
the delay was condoned. We must notice here that the earlier judgments of the
equi benches and even that of larger benches (three Judge Bench) in the case of
Ram Charan (supra) were not brought to the notice of the Court. Resultantly,
the principles of law stated by this Court in its earlier judgments were not
considered by the Bench dealing with the case of Ganeshprasad Badrinarayan
Lahoti (supra).
13.
As held by this Court in the case of Mithailal Dalsangar Singh
(supra), the abatement results in the denial of hearing on the merits of the
case, the provision of abatement has to be construed strictly. On the other
hand, the prayer for setting aside an abatement and the dismissal consequent
upon an abatement, have to be construed liberally. We may state that even if
the term `sufficient cause' has to receive liberal construction, it must squarely
fall within the concept of reasonable time and proper conduct of the concerned
party. The purpose of introducing liberal construction normally is to introduce
the concept of `reasonableness' as it is understood in its general connotation.
The law of
limitation is a substantive law and has definite 19 consequences on the right
and obligation of a party to arise.
These
principles should be adhered to and applied appropriately depending on the
facts and circumstances of a given case. Once a valuable right, as accrued in
favour of one party as a result of the failure of the other party to explain
the delay by showing sufficient cause and its own conduct, it will be
unreasonable to take away that right on the mere asking of the applicant,
particularly when the delay is directly a result of negligence, default or
inaction of that party. Justice must be done to both parties equally. Then
alone the ends of justice can be achieved. If a party has been thoroughly
negligent in implementing its rights and remedies, it will be equally unfair to
deprive the other party of a valuable right that has accrued to it in law as a
result of his acting vigilantly. The application filed by the applicants lack
in details. Even the averments made are not correct and ex-facie lack bona
fide. The explanation has to be reasonable or plausible, so as to persuade the
Court to believe that the explanation rendered is not only true, but is worthy
of exercising judicial discretion in favour of the applicant. If it does not
specify any of the enunciated ingredients of judicial pronouncements, then the
20 application should be dismissed. On the other hand, if the application is
bona fide and based upon true and plausible explanations, as well as reflect
normal behaviour of a common prudent person on the part of the applicant, the
Court would normally tilt the judicial discretion in favour of such an
applicant.
Liberal
construction cannot be equated with doing injustice to the other party. In the
case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], this Court
had taken a liberal approach for condoning the delay in cases of the
Government, to do substantial justice. Facts of that case were entirely
different as that was the case of fixation of seniority of 400 officers and the
facts were required to be verified. But what we are impressing upon is that
delay should be condoned to do substantial justice without resulting in
injustice to the other party. This balance has to be kept in mind by the Court
while deciding such applications.
In the
case of Ramlal and Others v. Rewa Coalfields Ltd., [AIR 1962 SC 361] this Court
took the view:
"7.
In construing Section 5 it is relevant to bear in mind two important
considerations.
The first
consideration is that the expiration of the period of limitation prescribed for
making an appeal gives rise to a right in favour of the decree holder to treat
the decree as binding 21 between the parties. In other words, when the period
of limitation prescribed has expired the decree-holder has obtained a benefit
under the law of limitation to treat the decree as beyond challenge, and this
legal right which has accrued to the decree holder by lapse of time should not
be light heartedly disturbed. The other consideration which cannot be ignored
is that if sufficient cause for excusing delay is shown discretion is given to
the Court to condone delay and admit the appeal. This discretion has been
deliberately conferred on the Court in order that judicial power and discretion
in that behalf should be exercised to advance substantial justice. As has been
observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269.
It is
however, necessary to emphasize that even after sufficient cause has been shown
a party is not entitled to the condonation of delay in question as a matter of
right. The proof of a sufficient cause is a condition precedent for the
exercise of the discretionary jurisdiction vested in the court by Section 5. If
sufficient cause is not proved nothing further has to be done; the application
for condoning delay has to be dismissed on that ground alone. If sufficient
cause is shown then the Court has to enquire whether in its discretion it
should condone the delay.
This
aspect of the matter naturally introduces the consideration of all relevant
facts and it is at this stage that diligence of the party or its bona fides may
fall for consideration;..."
14.
In the case of Union of India v. Tata Yodogawa Ltd., [1988 (38)
Excise Law Times 739 (SC)], this Court while granting some 22 latitude to the
Government in relation to condonation of delay, still held that there must be
some way or attempt to explain the cause for such delay and as there was no
whisper to explain what legal problems occurred in filing the Special Leave
Petition, the application for condonation of delay was dismissed. Similarly, in
the case of Collector of Central Excise, Madras v. A.MD. Bilal & Co., [1999
(108) Excise Law Times 331 (SC)], the Supreme Court declined to condone the
delay of 502 days in filing the appeal because there was no satisfactory or
reasonable explanation rendered for condonation of delay. The provisions of
Order 22 Rule 9, CPC has been the subject matter of judicial scrutiny for
considerable time now. Sometimes the Courts have taken a view that delay should
be condoned with a liberal attitude, while on certain occasions the Courts have
taken a stricter view and wherever the explanation was not satisfactory, have
dismissed the application for condonation of delay. Thus, it is evident that it
is difficult to state any straight-jacket formula which can uniformly be
applied to all cases without reference to the peculiar facts and circumstances
of a given case. It must be kept in mind that whenever a law is enacted by the
legislature, it is intended to be 23 enforced in its proper perspective. It is
an equally settled principle of law that the provisions of a statute, including
every word, have to be given full effect, keeping the legislative intent in
mind, in order to ensure that the projected object is achieved. In other words,
no provisions can be treated to have been enacted purposelessly. Furthermore,
it is also a well settled canon of interpretative jurisprudence that the Court
should not give such an interpretation to provisions which would render the
provision ineffective or odious. Once the legislature has enacted the
provisions of Order 22, with particular reference to Rule 9, and the provisions
of the Limitation
Act are applied to the entertainment of such an
application, all these provisions have to be given their true and correct
meaning and must be applied wherever called for.
If we
accept the contention of the Learned Counsel appearing for the applicant that
the Court should take a very liberal approach and interpret these provisions
(Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act)
in such a manner and so liberally, irrespective of the period of delay, it
would amount to practically rendering all these provisions redundant and
inoperative. Such approach or interpretation would hardly be permissible in
law.
24
Liberal construction of the expression `sufficient cause' is intended to
advance substantial justice which itself presupposes no negligence or inaction
on the part of the applicant, to whom want of bona fide is imputable. There can
be instances where the Court should condone the delay; equally there would be
cases where the Court must exercise its discretion against the applicant for
want of any of these ingredients or where it does not reflect `sufficient
cause' as understood in law. [Advanced Law Lexicon, P.
Ramanatha
Aiyar, 2nd Edition, 1997] The expression `sufficient cause' implies the
presence of legal and adequate reasons. The word `sufficient' means adequate
enough, as much as may be necessary to answer the purpose intended. It embraces
no more than that which provides a plentitude which, when done, suffices to
accomplish the purpose intended in the light of existing circumstances and when
viewed from the reasonable standard of practical and cautious men. The
sufficient cause should be such as it would persuade the Court, in exercise of
its judicial discretion, to treat the delay as an excusable one. These
provisions give the Courts enough power and discretion to apply a law in a
meaningful manner, while assuring that the purpose of 25 enacting such a law
does not stand frustrated. We find it unnecessary to discuss the instances
which would fall under either of these classes of cases. The party should show
that besides acting bona fide, it had taken all possible steps within its power
and control and had approached the Court without any unnecessary delay. The
test is whether or not a cause is sufficient to see whether it could have been
avoided by the party by the exercise of due care and attention. [Advanced Law
Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
15.
We feel that it would be useful to make a reference to the
judgment of this Court in Perumon Bhagvathy Devaswom (supra).
In this
case, the Court, after discussing a number of judgments of this Court as well
as that of the High Courts, enunciated the principles which need to be kept in
mind while dealing with applications filed under the provisions of Order 22,
CPC along with an application under Section 5, Limitation Act
for condonation of delay in filing the application for bringing the legal
representatives on record. In paragraph 13 of the judgment, the Court held as
under:- 26 "13 (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 the 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 decided the matter on merits. 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 27 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 re-filing 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.
We may
also notice here that this judgment had been followed with approval by an
equi-bench of this Court in the case of Katari Suryanarayana (supra)
16.
Above are the principles which should control the exercise of
judicial discretion vested in the Court under these provisions. The explained
delay should be clearly understood in contradistinction to inordinate
unexplained delay. Delay is just one of the ingredients which has to be
considered by the Court. In addition to 28 this, the Court must also take into
account the conduct of the parties, bona fide reasons for condonation of delay
and whether such delay could easily be avoided by the applicant acting with
normal care and caution. The statutory provisions mandate that applications for
condonation of delay and applications belatedly filed beyond the prescribed
period of limitation for bringing the legal representatives on record, should
be rejected unless sufficient cause is shown for condonation of delay. The
larger benches as well as equi-benches of this Court have consistently followed
these principles and have either allowed or declined to condone the delay in
filing such applications. Thus, it is the requirement of law that these
applications cannot be allowed as a matter of right and even in a routine
manner. An applicant must essentially satisfy the above stated ingredients;
then alone the Court would be inclined to condone the delay in the filing of
such applications.
17.
On an analysis of the above principles, we now revert to the
merits of the application in hand. As already noticed, except for a vague
averment that the legal representatives were not aware of the pendency of the
appeal before this Court, there is no other 29 justifiable reason stated in the
one page application. We have already held that the application does not
contain correct and true facts. Thus, want of bona fides is imputable to the
applicant.
There is
no reason or sufficient cause shown as to what steps were taken during this
period and why immediate steps were not taken by the applicant, even after they
admittedly came to know of the pendency of the appeal before this Court. It is
the abnormal conduct on the part of the applicants, particularly Har-Inder
Singh, who had appeared as AW4 in the trial and was fully aware of the
proceedings, but still did not inform the counsel of the death of his father.
The cumulative effect of all these circumstances is that the applicants have
miserably failed in showing any `sufficient cause' for condonation of delay of
778 days in filing the application in question.
18.
Thus, we have no hesitation in dismissing I.A.No.2 of 2010 and
consequently, I.A.No.1 of 2010 does not survive for consideration and is also
dismissed. Resultantly, the appeal having already abated also stands dismissed.
However, in the facts of the case, there shall be no orders as to costs.
........................................J. [ DR. B.S. CHAUHAN ]
........................................ J. [ SWATANTER KUMAR ]
New Delhi
July 8, 2010.
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