Full Judgment Text
REPORTABLE
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
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Effect 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
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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.
3. Before 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
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property including the 1/12 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.
4. Respondent 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.
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5. Respondent 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.
6. Appellant 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
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Nos.2 and 3. Consequently, as indicated hereinbefore, it was held that the
appeal had abated.
7. Mr. 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.
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8. Mr. 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.
9. Before 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 sue survives.
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
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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).
Explanation.--Nothing in this rule shall be
construed as barring, in any later suit, a defence
based -on the facts which constituted the cause of
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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 party.
10. It 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.
11. Parties 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
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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 prescribed.
In Union of India v. Ram Charan & Ors. [(1964) 3 SCR 467], a Three
Judge Bench of this Court, held :
“… 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
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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 opined :
“The period of limitation prescribed for making
such an application is three months, under Art.
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
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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.”
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(Emphasis supplied)
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
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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 observed :
“15. The 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 justice”
Reliance has also been placed on a recent decision of this Court in
Perumon Bhagwathy Devaswom, Perinadu Village v. Bhargavi Amma
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(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.
Those observations 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.”
The principles 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 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 the appellant.
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(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
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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-à-vis an appeal is pending
before a High Court, stating :
“ 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
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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
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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.
Appellants have 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.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
April 8, 2009