Andhra Pradesh High Court - Amravati
Mandadapu Lakshminarayana Died, vs Mandadapu Rama Rao, on 12 August, 2024
THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
I.A.Nos.1 to 3 of 2024
in
SECOND APPEAL No.464 OF 2005
COMMON ORDER:
1. As I.A.Nos.1 to 3 of 2024 in the Second Appeal are interrelated, they
are hereby disposed of by this common order.
2. I.A.No.1 of 2024 has been filed under Section 5 of the Limitation Act,
seeking to condone the delay of 3837 days in filing the petition to implead
the proposed Respondents 3 to 6 as legal representative of the
deceased/2nd Respondent.
3. I.A.No.2 of 2024 has been filed under Order 22 Rule 9 of C.P.C.,
seeking to set aside the abatement order in applying to implead the
proposed Respondents 3 to 6 as legal representative of the deceased/2 nd
Respondent.
4. Further, I.A.No.3 of 2024 has been filed under Order 22 Rule 3 and
Sec.151 of C.P.C., seeking to implead the proposed Respondents 3 to 6
on record as legal representative of the deceased/2 nd Respondent in the
Appeal.
5. Brief averments of the affidavits filed by the Petitioners/Appellants
accompanied with the petitions in I.As.No.1 to 3 of 2024, are as follows:
The 2nd Respondent remained unrepresented throughout the
proceedings, and there is no requirement to add his legal
representatives to the record. It was only recently, after the
Petitioners' counsel reviewed the situation, the Petitioners
realized the need to file these applications, which caused the
delay. The delay in filing the applications is neither intentional
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
nor deliberate but a result of the circumstances outlined. If the
delay is not condoned and the abatement is not set aside, the
Petitioners will endure significant hardship and harm. Therefore,
it is crucial to condone the delay, set aside the abatement, add
the proposed Respondents as the legal representatives of the
deceased 2nd Respondent, and resolve the Appeal on its merits.
6. The proposed Respondent No.5 filed counter affidavit refuting the
averments made in the petitions, contending that although the Petitioners
acknowledged the death of the 2nd Respondent on 28.05.2013 and
indicated the need to implead the legal representatives (L.Rs), they failed
to file the L.R., petition within the required timeframe, consequently, the
Second Appeal has abated long back i.e., about 11 years/3850 days and
the said abatement has come into operation on its own force by passage of
time and no specific order in this regard is required as laid down by the
Hon'ble Supreme Court. Previously, the Petitioners had sought to add the
proposed Respondents as legal representatives in I.A. No. 85 of 2013 in
O.S.No.171 of 2003 before the Principal Junior Civil Judge,
Jaggaiahapeta, following the death of the 2nd Respondent. The
Respondent disputes the validity of the Petitioners' explanation for the
delay, asserting that the petitions are tainted with falsehoods and were
filed without due regard for legal procedures. Respondent further asserts
that permitting such petitions would undermine the fundamental objectives
of limitation and abatement laws. Consequently, the delay is deemed
inexcusable, and the abatement of the second Appeal should not be set
aside.
7. Heard Sri Yellapragada Srinivasa Murthy, learned counsel for the
Petitioners/Appellants and Sri P. Prabhakara Rao, learned Counsel for the
proposed Respondent No.5.
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
8. Now, the point for determination is:
Can the proposed Respondents 3 to 6 be brought on
record as a legal heir of the deceased/2nd
Respondent by condoning the delay of 3837 days
and setting aside the abatement?
9. The Petitioners' assert that the 2nd Respondent, Gutta Viswanatham,
passed away on 28.05.2013 leaving behind his daughter and three sons,
namely (1) Konduru Venkatanarasamma, (2) G.Srinivasa Rao, (3)
G.Prasad @ Channaiah and (4) G. Gangaiah, except the aforesaid
persons, there are no other legal heirs to be brought on record as the legal
representatives of the deceased 2nd Respondent. This assertion has not
been contested by the proposed 5th Respondent. The Petitioners' further
contention is that the 2nd Respondent remained unrepresented in the
proceedings; they thought that it is unnecessary to bring these legal
representatives on record.
10. In the counter, the proposed 5th Respondent contended that the
Second Appeal No.464 of 2005 has abated long back and the said
abatement has come into operation on its force by passage of time and the
Petitioners filed these petitions casually and without any regard to the law.
Additionally, the Petitioners have not provided sufficient cause to warrant
the condonation of the delay.
11. Learned counsel for the proposed 5th Respondent relied on the
decision in Pathapati Subba Reddy (Died) By L.Rs. and Others V.
Special Deputy Collector (LA)1, wherein the Hon'ble Supreme Court held
that:
17. It must always be borne in mind that while construing 'sufficient
cause' in deciding application under Section 5 of the Act, that on the
2024 SCC OnLine SC 513
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
expiry of the period of limitation prescribed for filing an appeal, subs-
tantive right in favour of a decree-holder accrues and this right ought
not to be lightly disturbed. The decree-holder treats the decree to be
binding with the lapse of time and may proceed on such assumption
creating new rights.
26. On a harmonious consideration of the provisions of the law, as afo-
resaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an
end to litigation by forfeiting the right to remedy rather than the right it-
self;
(ii) A right or the remedy that has not been exercised or availed of for a
long time must come to an end or cease to exist after a fixed period of
time;
(iii) The provisions of the Limitation Act have to be construed different-
ly, such as Section 3 has to be construed in a strict sense whereas
Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach,
justice-oriented approach or cause of substantial justice may be kept
in mind but the same cannot be used to defeat the substantial law of
limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay
if sufficient cause had been explained, but that exercise of power is
discretionary in nature and may not be exercised even if sufficient
cause is established for various factors such as, where there is inordi-
nate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not
mean that others are also entitled to the same benefit if the court is not
satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning
the delay; and
(viii) Delay condonation application has to be decided on the parame-
ters laid down for condoning the delay and condoning the delay for the
reason that the conditions have been imposed, tantamounts to disre-
garding the statutory provision.
In light of the above legal position, this Court is inclined to adjudicate
whether the inordinate delay in filing these petitions should be condoned.
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
12. As previously mentioned, the Petitioners' primary contention is that
nd
the 2 Respondent was unrepresented during the proceedings, leading
them to believe that it was unnecessary to include his legal representatives
in the record. To evaluate this contention, I examined the proceeding
sheets related to this case. On 20.04.2005, after hearing, this Court framed
the substantial question of law. The proceeding sheets pertaining to
16.03.2022, 30.04.2022 and 17.06.2022 are available. On 17.06.2022, this
Court dismissed the Second Appeal for want of prosecution. On
13.10.2022, an application in I.A.No.1 of 2022 was filed seeking to set
aside the order dated 17.06.2022 passed in S.A.No.464 of 2005 by
restoring the Second Appeal to its original file; learned counsel for the
Petitioner requested time for issuance of notice to the counsel who is
representing 2nd Respondent; the learned counsel for the Petitioner is
permitted to issue notice to counsel for 2nd Respondent in a petition filed to
restore the Appeal and file proof of service before registry. On 20.10.2022,
learned counsel for 1st Respondent Mr. P.Prabhakar Rao, requested time
to file counter and the matter is posted to 10.11.2022. On 10.11.2022 also,
there was no representation on behalf of 2nd Respondent. On 17.11.2022,
this Court allowed the I.A.No.1 of 2022.
13. The record indicates that present I.A.Nos.1 to 3 of 2024 were filed
on 30.04.2024. The proceeding sheets do not indicate that notice was
served to the 2nd Respondent in the Appeal prior to the issuances of
notices for these applications. In light of this, it cannot be concluded that
the Petitioners' assertion that the 2nd Respondent was unrepresented is
incorrect. The Petitioners contend that, due to the absence of the 2 nd
Respondent's representation, they believed it was unnecessary to bring his
legal representatives onto the record. Apart from this explanation, the
Petitioners have not provided any additional justification in these
Interlocutory Applications.
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
14. It is now necessary to determine whether the said cause constitutes
a sufficient cause. As previously noted, the case was initially listed on
20.04.2005 and was only listed on three occasions before the Appeal was
dismissed for non-prosecution. Consequently, it is apparent that the matter
has not been listed for a period of seventeen years.
15. For understanding the issue raised, it would be convenient at this
stage to reproduce Order 22 Rule 4 CPC, which runs as under:
"4. Procedure in case of death of one of several defendants or of sole
defendant.--(1) Where one of two or more defendants dies and the
right to sue does not survive against the surviving defendant or defen-
dants alone, or a sole defendant or sole surviving defendant dies and
the right to sue survives, the court, on an application made in that be-
half, shall cause the legal representative of the deceased defendant to
be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to
his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under
sub-rule (1), the suit shall abate as against the deceased defendant.
(4) The court whenever it thinks fit, may exempt the plaintiff from the
necessity of substituting the legal representatives of any such defen-
dant who has failed to file a written statement or who, having filed it,
has failed to appear and contest the suit at the hearing; and judgment
may, in such case, be pronounced against the said defendant notwith-
standing the death of such defendant and shall have the same force
and effect as if it has been pronounced before death took place."
A bare perusal of the provisions under Order 22 Rule 4(3) CPC would
clearly show that where within the time limited by law, no application is
made under sub-rule (1), the suit shall abate as against the deceased
defendant.
16. It would appear from the above that the legislature incorporated the
provisions of Order 22 Rule 4(4) of C.P.C., with a specific view to expedite
the process of substitution of the LRs of non-contesting Defendants.
17. A plain reading of Order 22 Rule 4(4) CPC would clearly show that
the court is empowered to exempt a plaintiff from the necessity of substitut-
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
ing the heirs and legal representatives of any such defendant who has
failed to file a written statement or who, having filed it, had failed to appear
and contest the suit at the time of hearing of the same, but such an exemp-
tion can only be granted before the judgment is pronounced and in that
case only, it can be taken against the said defendant notwithstanding the
death of such defendant and such a decree shall have the same force and
effect as if it was pronounced before the death had taken place.
18. In light of the Petitioners' contention, the issue is to be determined is
whether the legal representatives of the 2nd Respondent can be brought on
record if the 2nd Respondent fails to appear in the Appeal. The available
proceeding sheets do not indicate notice was served to the 2 nd Respon-
dent, nor do they show that the 2nd Respondent chose to contest the mat-
ter. In absence of such particulars, this Court cannot definitively determine
whether the Petitioners are entitled to the benefits of Order 22 Rule 4 of
C.P.C. The proceeding sheets suggest that the matter has been listed after
a period of seventeen years. Under these circumstances, it cannot be said
that the Petitioners' explanation for the delay in filing the applications is
without merit.
19. In Rafiq and another vs. Munshilal and another2, which arose out
of an appeal against an order of the High Court refusing to set aside the
order dismissing an appeal for default, the Hon'ble Apex Court held thus:
"After engaging a lawyer, the party may remain supremely confident
that the lawyer will look after his interest. At the time of hearing of the
appeal, the personal appearance of the party is not only required but
hardly useful. Therefore, the party having done everything in his power
to effectively participate in the proceedings and rest assured that he
has neither to go to the High Court to enquire as to what is happening
in the High Court with regard to his appeal nor is he to act as a watch-
A.I.R. 1981 SC 1400
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
dog of the advocate that the latter appears in the matter when it is
listed. It has no part of his job".
20. The record indicates that the 1st Respondent executed a sale deed
in favour of the 2nd Respondent. The 1st Respondent/1st Defendant
contends that the schedule property was partitioned between him and his
brother, with the 1st Plaintiff receiving cash and gold. Subsequently, in the
same year, his brother sold away his half share to the 1st Respondent
under an agreement of sale, who then sold away the entire schedule
property to the 2nd Respondent/2nd Defendant. The trial Court determined
that the 1st Respondent/1st Defendant executed a registered sale deed in
favour of 2nd Respondent/2nd Defendant without holding a valid title to the
schedule property. As a result, the trial Court decreed that the Petitioners/
Appellants/Plaintiffs were entitled to the cancellation of the registered sale
deed dated 23.08.1998. Dissatisfied with the trial Court's judgment, the
Respondents 1 and 2/Defendants 1 and 2 preferred the Appeal in
A.S.No.19 of 2003 before the Senior Civil Judge, Nandigama (for short,
'the 1st Appellate Court'). The 1st Appellate Court allowed the Appeal by
setting aside the decree and Judgment of the trial Court by holding that
when the possession is with the 2nd Defendant, the Plaintiffs ought to have
asked for possession of the schedule property; mere cancellation of the
sale deed could not give possession to them; as the Plaintiffs did not seek
for possession of the property, the relief of declaration of binding nature of
the sale cannot be granted. Aggrieved by the decree and judgment passed
by the 1st Appellate Court, the Petitioners/Appellants/Plaintiffs filed the
present Second Appeal. After considering the submissions made on behalf
of both sides, this Court views that the core issue of the suit is whether the
1st Respondent had the right to transfer the property. Given the
circumstances, even if the legal representatives of the 2nd Respondent are
not yet on record, it may be difficult to conclude that the 1st Respondent's
right to transfer the property cannot be adjudicated. However, in the event
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
of non-impleadment of L.Rs of the 2 nd Respondent, the relief which claimed
may not be granted. The Appeal is currently pending before this Court, and
the proposed Respondents are the legal heirs of the 2 nd Respondent, who
will inherit rights under the sale deed that is in their father's name.
21. The proof of sufficient cause is a condition precedent for exercising
discretionary jurisdiction vested in the Court by Section 5 of the Limitation
Act. If sufficient cause is shown, then the Court has to enquire whether, in
its discretion, it should condone the delay. In the case of Balwant Singh V.
Jagdish Singh and others3, wherein the Hon'ble Apex Court referred to
the judgment of the Hon'ble Apex Court in Perumon Bhagvathy
Devaswom vs Bhargavi Amma supra4.
22. I feel that it would be useful to make a reference to the judgment of
Hon'ble Supreme Court in Perumon Bhagvathy Devaswom V. Bhargavi
Amma 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:
"13 (i) The words "sufficient cause for not making the application within
the period of limitation" should be understood and applied in a reason-
able, pragmatic, practical and liberal manner, depending upon the facts
and circumstances of the case, and the type of case. The words `suffi-
cient 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 inac-
tion or negligence on the part of the appellant."
AIR 2010 SC 3043
(2008) 8 SCC 321
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
(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 de-
cided 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 de-
lay, 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 dif-
ference 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 ex-
pected 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.
I may also notice here that this judgment had been followed with
approval by an equi-bench of the Hon'ble Supreme Court in the case of
Katari Suryanarayana v. Koppisetti Subba Rao5.
23. Provisions of Order 22, C.P.C., are not penal in nature. It is a rule of
procedure, and the substantial rights of the parties cannot be defeated by a
AIR 2009 SC 2907
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
pedantic approach by observing strict adherence to the procedural aspects
of the law. In Sardar Amarjit Singh Kalra V. Pramod Gupta6, a Five
Judge Bench of this Court held as under:
"26. Laws of procedure are meant to regulate effectively, assist
and aid the object of doing substantial and real justice and not to
foreclose even an adjudication on merits of substantial rights of
citizens under personal, property and other laws. The procedure has
always been viewed as the handmaid of justice and not meant to
hamper the cause of justice or sanctify the miscarriage of justice. A
careful reading of the provisions contained in Order 22, C.P.C. as well
as the subsequent amendments thereto would lend credit and support
to the view that they were devised to ensure their continuation and
culmination in an effective adjudication and not to retard the further
progress of the proceedings and thereby non-suit the others similarly
placed as long as their distinct and independent rights to property or
any claim remain intact and not lost forever due to the death of one or
the other in the proceedings. The provisions contained in Order 22 are
not to be construed as a rigid matter of principle but must ever be
viewed as a flexible tool of convenience in the administration of justice.
................ We are also of the view that the High Court should have,
on the very perception it had on the question of abatement, allowed
the applications for impleadment even de hors the cause for the delay
in filing the applications, keeping in view the serious manner in which it
would otherwise jeopardise an effective adjudication on merits, the
rights of the other remaining appellants for no fault of theirs. Interests
of justice would have been better served had the High Court adopted a
positive and constructive approach than merely scuttled the whole
process to foreclose an adjudication of the claims of others on merits.
The rejection by the High Court of the applications to set aside
abatement, condonation and bringing on record the legal
representatives does not appear, on the peculiar nature of the case, to
be a just or reasonable exercise of the Court's power or in conformity
with the avowed object of the Court to do real, effective and
substantial justice..."
24. The Hon'ble Apex Court, in the case of Banwari Lal (dead) and
another vs. Balbir Singh7, has also emphasised having a liberal ap-
proach in the matter of setting aside abatement or taking legal representa-
(2003) 3 SCC 272
(2016) (1) SCC 607
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
tives of a deceased litigant on record. By observing that provisions are not
penal in nature and being a rule of procedure, the substantial rights of the
parties cannot be defeated by the Court with a pedantic approach.
25. In M.K.Prasad v. Arumugam,8, the Hon'ble Supreme Court held
that though a party is not as vigilant as he should have been, if his conduct
does not, on the whole, warrant castigating him as an irresponsible litigant
and when the inconvenience caused to the other side can be compensated
by awarding appropriate and exemplary costs, delay can be condoned.
26. In N. Balakrishnan V. M. Krishnamurthy9, the Hon'ble Apex Court
held thus:
"7. It is axiomatic that condoning delay is a matter of discretion of the
Court. Section 5 of the Limitation Act does not say that such discretion
can be exercised only if the delay is within a certain limit. Length of de-
lay is no matter, acceptability of the explanation is the only criterion.
xxx
10. A court knows that refusal to condone delay would result in forec-
losing a suitor from putting forth his cause. There is no presumption that
delay in approaching the Court is always deliberate. This Court has held
that the words "sufficient cause" under Section 5 of the Limitation Act
should receive a liberal construction so as to advance substantial justice
vide Shakuntala Devi Jain v. Kuntal Kumari and State of West Bengal v.
The Administrator, Howrah Municipality.
11. It must be remembered that in every case of delay, there can be
some lapse on the part of the litigant concerned. That alone is not
enough to turn down his plea and shut the door against him. If the ex-
planation does not smack of mala fides or it is not put forth as part of a
dilatory strategy, the Court must show utmost consideration to the suitor.
But when there is reasonable ground to think that the delay was occa-
sioned by the party deliberately to gain time, the Court should lean
against acceptance of the explanation. While condoning delay, the Court
should not forget the opposite party altogether. It must be borne in mind
that he is a loser, and he, too, would have incurred quite large litigation
expenses. It would be a salutary guideline that when courts condone the
(2001) 6 SCC 176
1998 (0) A.I.R. (SC) 3222
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
delay due to laches on the part of the applicant, the Court shall compen-
sate the opposite party for his loss."
This Court views that, in evaluating whether a sufficient cause exists,
the paramount objective is to ensure substantial justice for all parties
involved. Technicalities should not hinder the Court from administering fair
justice. There is no material indicating any mala fides on the part of the
Petitioners regarding the delay in their applications.
27. During the course of the hearing, the learned counsel for the
Petitioners undertook to present arguments in the Appeal promptly
following the impleadment of the Legal Representatives of the 2 nd
Respondent. Additionally, the Petitioner's counsel also contended that
delaying the matter would serve no purpose, given that the Appeal
challenges the 1st Appellate Court's judgment. Both parties have made
some submissions regarding the merits of the case, but these cannot be
considered at this stage. Furthermore, there is no substantial dispute
concerning the status of the proposed parties as the legal representative of
the deceased 2nd Respondent.
28. A conspectus of judgments referred to supra, makes it clear that
length of delay is no matter, and acceptability of the explanation is the only
criterion. The primary function of a Court is to adjudicate the dispute
between the parties and to advance substantial justice. Rules of limitation
are not meant to destroy the rights of parties. They are meant to see that
parties do not resort to dilatory tactics, but seek their remedy promptly.
29. The learned counsel for the proposed 5th Respondent contends that
the Petitioners have taken steps in another proceeding to bring the legal
representatives of the deceased 2nd Respondent on record, yet they have
not done so in this case. The Petitioners have provided an explanation for
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
their delay in taking prompt action. The record indicates that the matter has
not been listed for a period of seventeen (17) year.
30. In light of the foregoing discussion, this Court is of the view that the
failure to bring the legal representatives of the deceased 2nd Respondent
on record within the stipulated timeframe constitutes a procedural
irregularity. However, if this irregularity is not condoned, it could undermine
the substantive rights of the parties involved.
31. In the event of the disposal of the Appeal on merits, no actual
detriment could be caused to the Respondents. The inconvenience, if any,
caused to the Respondents can be compensated by awarding costs.
32. For the foregoing reasons, I.A.Nos.1 to 3 of 2024 in the Appeal are
allowed subject to the condition that the Petitioners pay a sum of
Rs.3000/- to the 5th Respondent through his counsel within three (03)
weeks from the date of receipt of a copy of this Common Order. After
compliance with the said condition, the Registry is directed to carry out the
amendments as required.
______________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 12.08.2024
SAK
T.M.R., J
I.A.Nos.1 to 3 of 2024 in
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
I.A.Nos.1 to 3 of 2024
in
SECOND APPEAL NO.464 OF 2005
Date: 12.08.2024
SAK
