Kalideen And Others vs Mansaram And Others
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Allahabad High Court

Kalideen And Others vs Mansaram And Others on 2 April, 2025

Author: Jaspreet Singh

Bench: Jaspreet Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:18399
 
Court No. - 8
 

 
Case :- WRIT - C No. - 1000364 of 2002
 

 
Petitioner :- Kalideen And Others
 
Respondent :- Mansaram And Others
 
Counsel for Petitioner :- S.K. Mehrotra,I.D. Shukla,Ishwar Dutt Shukla,S.K. Mehrotra
 
Counsel for Respondent :- Rakesh Kumar Srivastava
 

 
Hon'ble Jaspreet Singh, J.
 

1. Heard Shri I. D. Shukla, learned counsel for the petitioners and Shri Rakesh Kumar Srivastava, learned counsel appearing for the private respondents.

2. Under challenge is the order dated 18.12.2001 passed by the Court of Additional District Judge, Court No.10, Faizabad in Regular Civil Appeal No.48 of 1990 (Kalideen and others Vs. Ram Nihore and others) whereby the Civil Appeal No.48 of 1990 has been abated.

3. In order to appreciate the controversy involved in the instant petition certain facts leading upto the instant petition are being noticed first.

4. Regular Suit No.394 of 1983 was filed by Ram Nihore seeking a decree of possession [the predecessor in interest of the private respondents no.1, 2 and 3] against Kalideen who was the petitioner no.1 (after his death now represented by his legal heirs). The suit of Ram Nihore came to be decreed by means of judgment and decree dated 26.03.1990. Kalideen being aggrieved preferred regular civil appeal under Section 96 C.P.C which was registered as Appeal No.48 of 1990. Ram Asrey the father of the petitioners no.3 and 4 died on 02.12.1992. An application for substitution was moved before the first appellate court on 16.03.1993. However, while the said application were pending, two other persons, namely, Turanti and Gangu also died and an application to bring on record the heirs of the said deceased Turanti and Gangu was also moved.

5. In the aforesaid backdrop, while the said application for substitution was pending, Ram Nihore, the father of the private respondent also expired. However, in so far as the application for substitution of Ram Nihore is concerned, there was a discrepancy regarding his date of death. As per the petitioners, the date of death of Ram Nihore was mentioned as 28.05.1997 whereas per the private respondent Ram Nihore died on 19.01.1996.

6. It is in the aforesaid backdrop that when the application for substitution came to be considered by the first appellate court, it allowed the application regarding Ram Asrey, and application for substitution relating to Turanti and Gangu were not pressed as they were proforma parties. However, the main contest was in respect of the substitution application moved by the petitioners (who were the appellants before the first appellate court). The application for substitution was contested by the private respondents and the first appellate court by means of order dated 18.12.2001 dismissed the application for substitution on the ground that the petitioners had not disclosed the true and correct date of death of Ram Nihore. It also noticed that there was no proper application for seeking condonation of delay and setting aside abatement. Accordingly, in absence of any proper application or explanation, the application for substitution was not bonafide, hence rejected the same, as a consequence, the first appeal preferred by the petitioners stood abated.

7. This order has been challenged by the petitioners and it is urged that the first appellate court was not justified in dismissing the application for substitution, since it was the duty of the pleader of the respondents in the first appeal (counsel of Ram Nihore) to have informed the first appellate court regarding the date of death of Ram Nihore.

8. It is urged that even if there was a discrepancy in the date of death but the same was not deliberate and in any case once the legal heirs of Ram Nihore were contesting the proceedings, the court ought to have taken liberal view and delay in moving the application for substitution could be compensated in terms of costs and by abating the appeal, the substantial legal rights of the present petitioners have been jeopardized and the manner in which the impugned order has been passed, is not in sound exercise of jurisdiction by the first appellate authority.

9. It is also urged that even in absence of a formal application for condonation of delay for setting aside abatement, the court ought to have taken note of the facts and considering the technicalities raised by the respondent, herein, and in contradistinction looking to the substantive rights of the petitioners, herein, the application should have been allowed or at least an opportunity should have been granted to move an appropriate application but even the same was not done and for the aforesaid reason the impugned order is patently erroneous and as such is liable to be set aside.

10. Shri Rakesh Srivastava, learned counsel for the private respondents has raised an objection regarding the maintainability of the instant petition on the ground that an order whereby the Court had declined to set aside the abatement is appealable in terms of Order 43 Rule 1(r) of CPC and in this view, the instant writ petition was not maintainable.

11. Shri Srivastava further submits that though the petitioners had moved the application for substitution appropriately in so far as Ram Asrey is concerned as well as for Turanti and Gangu but only to keep the matter pending the application for bringing on record the heirs of deceased Ram Nihore was moved with an incorrect date of death as well as it was defective as it was not accompanied by an application seeking condonation of delay and setting aside abatement.

12. It is urged that the first appellate court has rightly considered the submissions of the respective parties before it and has observed that since the application for substitution was not accompanied by an application for condonation of delay and setting aside abatement, it would be clear that after 150 days of the date of death of the party, the proceedings abate and the courts are not required to pass any formal order of abating the proceedings. In the instant case, in any view of the matter whether the date of death of Ram Nihore as taken as 28.05.1997 or as per private respondents 19.01.1996 yet the application for substitution was moved after 150 days and as such the proceedings had already abated. Since there was no prayer for setting aside abatement or an application moved in this regard, consequently the order dated 18.12.2001 cannot be termed to be bad or erroneous in law, hence the writ petition deserves to be dismissed.

13. The Court has heard the learned counsel for the parties and also perused the material on record.

14. At the outset in so far as the submissions made by the counsel for the respondents that the instant petition is not maintainable in terms of Order 43 Rule 1(r) CPC is concerned, the same does not impress this Court for the reason that the instant petition has been pending before this Court since 2002 and more than 22 years have lapsed and this preliminary objections was not raised except when the matter was argued before this Court.

15. It is also relevant to notice that if there are two modes of invoking the jurisdiction of the Court and as in the instant case the petitioners instead of filing the appeal has preferred the writ petition, then it cannot be said that the court does not have jurisdiction rather its merely the jurisdiction which is excercised by the court as per the roaster assigned and that is only an issue of convenience but not a case of lack of jurisdiction. Moreover, the preliminary issue either could have been raised and decided at the earliest but not having done so as it has been raised at the eleventh hour and at this stage relegating the parties to file an appeal in terms of Order 43 Rule 1(r) CPC will not be sound reasoning. In any case where it is a petition under Article 227 of the Constitution of India or the appeal in terms of Order 43 Rule 1(r) both would be cognizable by a Single Judge of this Court and there is no element of prejudice has been established which may persuade this Court to relegate the parties to file an appeal at this late stage. In any case the power of superintendence in terms of Article 227 of the Constitution of India cannot be abridged and the supervisioning powers can always be utilized and exercised by the Court in a befitting case.

16. For all the aforesaid reasons, this Court does not find that the preliminary objections regarding non-maintainability of the writ petition under Article 227 of the Constitution of India has force, consequently, it is turned down.

17. Now coming to the merits, it is not disputed between the parties that the predecessor in interest of the petitioners had filed a regular civil appeal registered as Regular Civil Appeal No. 48 of 1990. During pendency of the proceedings, some of the parties had expired. It is also not disputed that an application for substitution was moved to bring on record the heirs of deceased Ram Asrey which came to be allowed.

18. As far as the substitution of Turanti and Gangu is concerned, the said application came to be not pressed as they were merely formal and proforma parties. It is also not disputed that there was a direct fight between the predecessor in interest of the petitioners vis-a-vis the predecessor in interest of the private respondents. In such circumstances, the first appellate court was pitted on one hand with the technicalities that there was no formal application for seeking condonation of delay and setting aside abatement and in contrast the regular appeal against the judgment and decree passed in a suit for possession was to be adjudicated on merits.

19. The law regarding substitution and setting aside abatement is now well settled by the Constitutional Bench of the Apex Court in Sardar Amarjeet Singh Kalra (dead) by LRS Vs Promod Gupta (Smt) (dead) by LRS, (2003) 3 SCC 272.

20. The Apex Court in Ram Nath Sao @ Ram Nath Sahu Vs. Goberdhan Sao & another, (2002) 3 SCC 195 has held that unless and until gross negligence can be attributed to a party till then the explanation furnished by a party must be accepted and the refusal should be exception. It further held that the word 'sufficient cause' which occurs either in terms of Order IX or Order XXII CPC or in context with Section 5 of the Limitation Act, 1963. It should be given an expensive and liberal meaning.

21. Lately, the Apex Court in Om Prakash Gupta alias Lalloowa (Now Deceased) & others Vs. Satis Chandra (Now Deceased), 2025 SCC OnLine SC 291 had the occasion to consider the law on substitution and abatement and it held as under:-

"9. The principles to guide courts while considering applications for setting aside abatement and application for condonation of delay in filing the former application are laid down by this Court in Perumon Bhagvathy Devaswom v. Bhargavi Amma; (2008) 8 SCC 321. An instructive passage from such decision reads as follows:

"13. The principles applicable in considering applications for setting aside abatement may thus be summarised as follows:

(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 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 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."

(emphasis supplied in original)

The aforesaid passage is followed by other instructive passages too on special factors which have a bearing on what constitutes "sufficient cause", with reference to delay in applications for setting aside abatement and bringing the legal representatives on record. To the extent relevant for decisions on these two appeals, the same are extracted hereunder:

"15. The 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 subordinate 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'. ...

16. 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 ten 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 lived in the immediate vicinity or were related or the court issues a notice to him informing the death of the respondent.

17. The 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 10-A 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 order-sheet/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 an indication of negligence or want of diligence.

18. The third circumstance is whether there is any material to contradict the claim of the appellant, if he categorically states that he was unaware of 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.

19. Thus 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.

(emphasis supplied)"

22. Taking note of the law laid down by the Apex Court and if the principles enunciated therein are applied to the facts of the instant case. It would reveal that the first appellate court had taken a hyper technical view. The Apex Court has clarified that even if there is no application for condonation of delay yet looking into the circumstances an oral prayer can also be entertained. The proposition which have been noticed above is only for the purpose that a message should percolate to the various tiers of the court, that issues such as substitution, condonation of delay and setting aside abatement are to be treated liberally as it is part of the procedural law and it does not impact the rights of the parties on merits. Unless and until there is gross negligence or despite having provided an opportunity to a party yet it fails to make good the opportunity so granted or deliberately misuses the liberty till then the appropriate orders leaning in favour of substantive justice should be preferred.

23. In the instant case where the parties were contesting the relief of possession tooth and nail, in such circumstance, the Court ought to have either granted an opportunity to the petitioners to move an appropriate application and in case if the petitioners failed to comply with the said liberty then the court could have passed an order rejecting the application. However, in the alternate considering the facts and circumstances the application for substitution could have been allowed and the delay if any could have been compensated in terms of costs as the application was on record even though defective. However, this aspect has not been considered by the first appellate court rather it has taken a hyper technical view that upon the passing of 150 days of the date of death of the party, the proceedings would abate automatically.

24. This Court finds that the manner in which the impugned order has been passed does not reflect sound exercise of jurisdiction by the first appellate court. For the aforesaid reason, this Court is of the view that the impugned order cannot be sustained and in order to do substantive justice the writ petition is allowed on a costs of Rs.25,000/- which shall be paid by the petitioners to the respondents before the first appellate court by 28.04.2025, where the appeal shall stand restored and the parties shall be appear before the first appellate court on 28.04.2025.

25. The petitioners herein would be at liberty of making a formal application for substitution to correct the array of the parties before the first appellate court which shall be allowed and thereafter the parties shall argue the appeal on merits. Any party who tries to misuse the liberty granted by the Court shall be appropriate dealt with by the first appellate court by imposing costs which are not ornamental but realistic and keeping in mind the principles laid down by the Apex Court in this regard in Vinod Seth v. Devinder Bajaj, (2010) 8 SCC 1 . The first appellate court shall endeavour to decide the appeal preferably within a period of six months from the date the parties appear before it i.e. 28.04.2025. It is clarified that in case the petitioners do not deposit or pay the costs to the private respondents before the first appellate court by the date fixed before the first appellate court, the proceedings of first appeal shall not revive and the petitioners shall not be entitled to the benefit of this orders.

26. With the aforesaid observations, the petition is allowed.

Order Date :- 2.4.2025

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