Andhra Pradesh High Court - Amravati
Bandaru China Kotaiah 2 Others vs K.V.Subbamma on 14 October, 2024
THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
I.A.Nos.1 and 3 of 2022
&
I.A.Nos.1 to 3 of 2023
in
SECOND APPEAL No.900 OF 2000
COMMON ORDER:
1. As I.A.Nos.1 and 3 of 2022 & I.A.Nos.1 to 3 of 2023 in the Second
Appeal are interrelated, they are hereby disposed of by this common order.
2. I.A. No.1 of 2022 has been filed under Section 5 of the Limitation
Act, seeking to condone the delay of 1423 days in applying to set aside the
default order dated 28.06.2018 passed in the Second Appeal No.900 of
2000.
3. I.A. No.3 of 2022 has been filed under Order 9 Rule 9 of Code of
Civil Procedure, 1908 (for short, 'C.P.C.'), seeking to set aside the order
dated 28.06.2018 passed in the Second Appeal No.900 of 2000.
4. I.A. No.1 of 2023 has been filed under Section 5 of the Limitation
Act, seeking to condone the delay of 6214 days in applying to set aside the
above delay caused by the death of the sole Respondent.
5. I.A. No.2 of 2023 has been filed under Order 22 Rule 9 of C.P.C.,
seeking to set aside the abatement caused by the death of the sole
Respondent.
6. Further, I.A. No.3 of 2023 has been filed under Order 23 Rule 4 of
C.P.C., seeking to implead the proposed Respondents 2 to 8 on record as
legal representative of the deceased/sole Respondent in the Second
Appeal.
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
7. Brief averments of the affidavits filed by the Petitioners/Appellants
accompanied with the petitions in I.A.Nos.1 and 3 of 2022 & I.A.Nos.1 to 3
of 2023, are as follows:
The second petitioner herein is also the second Appellant in
the Second Appeal, having filed an affidavit for himself and the
other petitioners/appellants. They challenge the judgment and
decree dated July 29, 2000, in A.S. No. 42 of 1996 from the
Senior Civil Judge, Addanki. The first Respondent initiated O.S.
No. 102 of 1986 in the Principal District Munsif Court, Addanki,
seeking a declaration of title to a vacant site measuring 12 cents
out of 1 acre in D.No. 259/2, Vaidena-Kopperapadu village. The
trial court dismissed the suit on August 19, 1996, prompting the
respondents to appeal in A.S. No. 42 of 1996, which reversed
the trial court's decision. Aggrieved, the appellants filed the
present second Appeal.
The 2nd petitioner's late father, the first Appellant, used to
look after the case, and the petitioners were only aware of the
second Appeal once they received notices in W.P. No. 23027 of
2021 and Execution Petition. Upon inquiry, they learned from
their lower court counsel that he was unaware of the Second
Appeal's dismissal for default on June 28, 2018, due to the
passing of their advocate. Being illiterate, the petitioners relied
on their father for legal matters. After they came to know about
the situation, they sought legal advice. They were prompted to
file I.A. No.3 of 2022 to set aside the default order and I.A. No. 1
of 2022 to condone the delay in filing this petition, both currently
pending. During a hearing on March 28, 2023, it was revealed
that the sole Respondent had died on November 4, 2005, and
the petitioners were unaware of this. They have since filed a
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
memo regarding this development and seek to bring the legal
representatives of both the deceased sole Respondent and
Murali Krishna, a legal representative who died on June 12,
2012, onto the record. The delay of 6,214 days in filing this
application is not willful but a result of the circumstances detailed
above. If not addressed, the petitioners face grave and
irreparable harm.
8. Learned Counsel for the Respondents filed a common counter
affidavit refuting the averments made in the petitions, contending that
Petitioners/Appellants No. 2 and 3 cannot claim ignorance of the legal
proceedings, including the Second Appeal, as they are parties to the
Original Suit, First Appeal, and the present Second Appeal: the sole
Respondent, the late Smt. Koganti Venkata Subbamma passed away on
November 4, 2005, and a memo detailing her legal heirs was filed on
November 28, 2005. Yet, no action was taken until the Second Appeal was
dismissed on June 28, 2018. The affidavit submitted by
Petitioners/Appellants No. 2 and 3 does not mention their father's date of
death or the status of their advocate. Having jointly filed the Second
Appeal with their father, they cannot feign ignorance of the proceedings.
While day-to-day explanations for delays are not mandatory, their claim of
unawareness is unacceptable given their longstanding involvement.
Despite filing a vakalat in E.P. on April 19, 2021, they still need to explain
the subsequent delays in the I.A.s. After receiving notices in the E.P., they
undertook unauthorised constructions, leading to Writ Petition No. 23027 of
2021, which resulted in a status quo order on October 8, 2021. The I.As
were only filed on August 24, 2022. The reasons for these delays lack
credibility; the petitioners are fully aware of the ongoing legal matters. A
review of court records reveals that a set-aside petition was filed on
September 10, 2018 (IASR 61932/2018) but was not resubmitted, an
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
omission not mentioned in their affidavit. The assertion that
Petitioners/Appellants No. 2 and 3 are illiterate does not justify condoning
the delay; their ability to file an appeal indicates they can prosecute this
matter. The reasons presented in the I.As for condoning, the inordinate
delay is insufficient for this Hon'ble Court to exercise its discretionary
power, as the delay is excessive and demonstrates a lack of diligence.
Consequently, the substantive rights accrued from the dismissal of the
Second Appeal should remain undisturbed, as Petitioners/Appellants No. 2
and 3 have not shown sufficient cause for the inordinate delay.
9. I heard Sri M.R.S. Srinivas, learned Counsel for the Petitioners/
Appellants, and Sri Charan Telaprolu, learned Counsel for the proposed
Respondents.
10. Now, the points for determination are:
(1) Whether the petitioners established the grounds to set
aside the order of dismissal dated 28.06.2018 in S.A.
No.900 of 2000?
(2) Can the proposed Respondents 2 to 8 be brought on
record as legal heirs of the deceased 1st Respondent /
Koganti Venkata Subbama as well as the legal repre-
sentatives of deceased Murali Krishna by condoning the
delay of 6214 days and setting aside the abatement?
POINTS No.1 & 2:
11. Learned Counsel for the Petitioners relied on the decision in Collec-
tor (LA) v. Katiji1, the Hon'ble Supreme Court held that:
3. ................. It is common knowledge that this Court has been
making a justifiably liberal approach in matters instituted in this Court.
But the message does not appear to have percolated down to all the
(1987) 2 SCC 107
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
other courts in the hierarchy. Such a liberal approach is adopted on
principle as it is realised that:
"1. Ordinarily, a litigant does not stand to benefit from lodging an
appeal late.
2. Refusing to condone delay can result in a meritorious matter being
thrown out at the very threshold and the cause of justice being
defeated. As against this, when delay is condoned, the highest that
can happen is that a cause would be decided on merits after hearing
the parties.
3. "Every day's delay must be explained" does not mean a pedantic
approach should be made. Why not every hour's delay, every
second's delay? The doctrine must be applied in a rational, common
sense, pragmatic manner.
4. When substantial justice and technical considerations are pitted
against each other, the cause of substantial justice deserves to be
preferred, for the other side cannot claim to have a vested right in
injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or
on account of culpable negligence, or on account of mala fides. A
litigant does not stand to benefit by resorting to delay. In fact, he runs
a serious risk.
6. It must be grasped that the judiciary is respected not on account of
its power to legalise injustice on technical grounds but because it is
capable of removing injustice and is expected to do so.
12. He further relied on the decision in Sheo Raj Singh v. Union of In-
dia2, the Hon'ble Supreme Court held that:
30. Considering the aforementioned decisions, there cannot be any
quarrel that this Court has stepped in to ensure that the substantive
rights of private parties and the State are not defeated at the
threshold simply due to technical considerations of delay. However,
these decisions notwithstanding, we reiterate that condonation of
delay being a discretionary power available to courts, the exercise of
discretion must necessarily depend upon the sufficiency of the cause
shown and the degree of acceptability of the explanation, the length
of delay being immaterial.
(2023) 10 SCC 531
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
31. Sometimes, due to want of sufficient cause being shown or an
acceptable explanation being proffered, delay of the shortest range
may not be condoned, whereas, in certain other cases, delay of long
periods can be condoned if the explanation is satisfactory and
acceptable. Of course, the courts must distinguish between an
"explanation" and an "excuse". An "explanation" is designed to give
someone all of the facts and lay out the cause for something. It helps
clarify the circumstances of a particular event and allows the person
to point out that something that has happened is not his fault if it is
really not his fault. Care must, however, be taken to distinguish an
"explanation" from an "excuse". Although people tend to see
"explanation" and "excuse" as the same thing and struggle to find out
the difference between the two, there is a distinction which, though
fine, is real.
35.2. The expression "sufficient cause" is elastic enough for courts to
do substantial justice. Further, when substantial justice and technical
considerations are pitted against one another, the former would
prevail.
35.3. It is upon the courts to consider the sufficiency of cause shown
for the delay, and the length of the delay is not always decisive while
exercising discretion in such matters if the delay is properly
explained. Further, the merits of a claim were also to be considered
when deciding such applications for condonation of delay.
13. He further relied on the decision in N. Balakrishnan v. M. Krishna-
murthy3, the Hon'ble Supreme Court held that:
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute
between the parties and to advance substantial justice. The time
limit fixed for approaching the Court in different situations is not
because, at the expiry of such time, a bad cause would transform
into a good cause.
11. 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. The object of providing a
legal remedy is to repair the damage caused by reason of legal
injury. The law of limitation fixes a lifespan for such legal remedy
(1998) 7 SCC 123
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
for the redress of the legal injury so suffered. Time is precious,
and wasted time would never be revisited. During the efflux of
time, newer causes would sprout up, necessitating newer persons
to seek legal remedy by approaching the courts. So, the lifespan
of each remedy must be fixed. An unending period for launching
the remedy may lead to unending uncertainty and consequential
anarchy. The law of limitation is thus founded on public policy. It is
enshrined in the maxim interest reipublicae up sit finis lithium (it is
for the general welfare that a period be put to litigation). Rules of
limitation are not meant to destroy the rights of the parties. They
are meant to see that parties do not resort to dilatory tactics but
seek their remedy promptly. The idea is that every legal remedy
must be kept alive for a legislatively fixed period of time.
13. 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 explanation does not smack of mala fides or 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 occasioned by the party deliberately to
gain time, the Court should lean against acceptance of the
explanation. While condoning the 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 delay due to laches on the part of the applicant, the
Court shall compensate the opposite party for his loss.
14. He further relied on the decision in State of A.P. v. Sayanna4, the
composite High Court of Andhra Pradesh held that:
30. ......... The fact that the Limitation Act should be applied with
all its rigour irrespective of individual hardship does not mean that
the liberality in approach in considering the criterion of sufficient
cause is out of place and rigid standards of insisting on the
explanation for each and every day's delay should be applied.
...............
2000 S.C.C. OnLine AP 285
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
15. On the other hand, the learned Counsel for the proposed Respon-
dents relied on the decision in Majji Sannemma v. Reddy Sridevi5,
wherein the Hon'ble Supreme Court is pleased to refer the decision in
Basawaraj v. L.A.O.6,] wherein it is held that:
The discretion to condone the delay has to be exercised judiciously
based on the facts and circumstances of each case. It is further ob-
served that the expression "sufficient cause" cannot be liberally inter-
preted if negligence, inaction or lack of bona fides is attributed to the
party. It is further observed that even though limitation may harshly af-
fect the rights of a party, it has to be applied with all its rigour when
prescribed by statute. It is further observed that in case a party has
acted with negligence, lack of bona fides, or there is inaction, then
there cannot be any justified ground for condoning the delay even by
imposing conditions. It is observed that each application for condona-
tion of delay has to be decided within the framework laid down by this
Court. It is further observed that if courts start condoning delay where
no sufficient cause is made out by imposing conditions, then that
would amount to a violation of statutory principles and show utter dis-
regard to the legislature.
The Hon'ble Supreme Court further referred the decision in Pundlik
Jalam Patil v. Jalgaon Medium Project7, wherein it is observed that
The Court cannot enquire into belated and stale claims on the
ground of equity. Delay defeats equity. The courts help those who
are vigilant and "do not slumber over their rights".
16. He further relied on the decision in Pathapati Subba Reddy (Died)
By L.R. and Others V. Special Deputy Collector (LA)8, the Hon'ble
Supreme Court held that:
26. On a harmonious consideration of the provisions of the law, as
aforesaid, and the law laid down by this Court, it is evident that:
(2021) 18 SCC 384
(2013) 14 S.C.C. 81
(2008) 17 SCC 448
2024 S.C.C. OnLine SC 513
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
(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 itself;
(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 diffe-
rently, such as Section 3 has to be construed in a strict sense, whe-
reas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though a liberal approach,
justice-oriented approach or cause of substantial justice may be kept
in mind, the same cannot be used to defeat the substantial law of li-
mitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the de-
lay 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 inor-
dinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in a 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 condon-
ing 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, tantamount to dis-
regarding the statutory provision.
17. In light of the principles articulated above, this Court is inclined to
thoroughly examine the arguments presented by both parties.
18. It is undisputed that the sole Respondent initiated proceedings in
O.S. No. 102 of 1986 before the Principal District Munsif, Addanki, seeking
a declaration of title to a vacant site measuring 12 cents, along with a con-
sequential prayer for delivery of possession. The trial court rendered a
judgment dismissing the suit on September 19, 1996. Being aggrieved, the
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
Respondent filed an appeal in A.S. No. 42 of 1996 before the Senior Civil
Judge, Addanki, which reversed the trial court's decision. Dissatisfied with
this outcome, the Appellants presented the above Second Appeal,
dismissed for default.
19. The petitioners 2 and 3/appellants 2 and 3 in I.A. Nos.1 and 3 of
2022 are the children of the deceased 1st Appellant. They assert their illite-
racy and contend that the 1st Appellant handled all familial matters during
his lifetime, which rendered them unaware of any legal proceedings, in-
cluding the Second Appeal. Another ground raised by the petitioners in all
petitions is that, during the pendency of the Appeal, as mentioned above,
their advocate, who was representing them, unfortunately, passed away.
Consequently, he could not appear when the matter was scheduled for
hearing, resulting in the dismissal of the second Appeal for default on June
28, 2018.
20. 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 others9, wherein the Hon'ble Apex Court referred to
the judgment of the Hon'ble Apex Court in Perumon Bhagvathy
Devaswom vs Bhargavi Amma supra10.
21. The petitioners contend that they became aware of the Second
Appeal only upon receiving notices related to W.P. No. 23027 of 2021 and
the Execution Petition. They claim to have made diligent efforts to meet
with their Counsel in the Second Appeal, only to discover that he had
passed away. The record reflects that the Counsel representing the
A.I.R. 2010 SC 3043
(2008) 8 SCC 321
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
Appellant has indeed died; however, there is no indication that the
petitioners were informed of this development, which would have allowed
them to take appropriate steps. They further assert that upon visiting the
office of their deceased Counsel, they could not locate the case bundle.
Subsequently, they consulted their Counsel in W.P. No. 23027 of 2021,
who advised them to file the current applications.
22. The record reveals that this Court disposed of Second Appeal
No.900 of 2000 on 28.06.2018, based on the submission by the
Respondent's Counsel that the sole Respondent had died some time ago
and that the other party had been notified and the 1st Appellant had
recently passed away, and no steps had been taken to bring the legal
representatives of the sole Respondent onto the record. Consequently, the
Second Appeal was dismissed for default. Notably, the order does not
indicate the presence of the Appellants' Counsel at the time of the Appeal's
disposal, nor does it mention the death of the Appellants' Counsel on that
date.
23. Along with their counter affidavit, the proposed respondents
submitted a copy of the docket order from E.A. No. 227 of 2021 and the
orders from I.A. No. 1 of 2021 in W.P. No. 23027 of 2021. The order from
I.A. No. 1 of 2021 indicates that Petitioners 2 and 3 were shown as
Respondents 3 and 4 therein. In that application, a request was made to
direct Respondent No.2 (Vaidena Kopperapadu Gram Panchayat,
represented by its Panchayat Secretary) to prevent Respondents 3 and 4
from continuing construction activities on behalf of third parties on the
petitioners' property. This Court issued notice to the respondents and
instructed them to maintain the status quo as of 08.10.2021. Additionally,
the petitioners filed a copy of E.A. No. 27 of 2021 submitted on
21.01.2020, in which they requested recognition of Petitioners 2, 3, and 5
to 9 as legal representatives of the deceased 1st petitioner/1st decree
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
holder therein. In this application, Petitioners 2 and 3 herein were shown
as Respondents 2 and 3 in E.A. No. 27 of 2019. Citing these documents,
the respondents' Counsel argues that the petitioners were expected to be
aware of the disposal of the Second Appeal. Therefore, they should not
claim ignorance due to their illiteracy regarding the disposal of Second
Appeal proceedings.
24. The record indicates that I.A. No. 1 of 2022 was filed on 21.06.2022.
As previously mentioned, the Second Appeal was dismissed for default on
28.06.2018. The material on record does not demonstrate that the
petitioners were aware of this Court's disposal of the Second Appeal
before the Respondents filed the Execution Petition and Writ Petition.
25. The Respondents contend that, although it is unnecessary to justify
day-to-day delays, the petitioners' claim of ignorance cannot be accepted.
They argue that the petitioners/Appellants 2 and 3 have been parties to the
legal proceedings since the original suit and filed the Second Appeal with
their father. Additionally, the respondents point out that a petition to set
aside the order was filed on 10.09.2018 under I.A.S.R. No. 61932 of 2018,
which was returned and not resubmitted. Although the petitioners'
assertion that they were unable to proceed with the Second Appeal due to
the death of their Counsel is not seriously disputed, the specific date of the
Counsel's death has not been provided.
26. The proceeding sheets for the case from 28.06.2000 to 28.06.2018
are unavailable, casting uncertainty on whether the matter has been listed
throughout that eighteen-year interval. While the petitioners have not
swiftly moved to implead the legal representatives of both the 1st Appellant
and the Respondent, this Court finds it unjust to attribute fault to them
given the prolonged absence of listings. It is unreasonable to expect
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
advocates to solicit instructions from the parties under such circumstances,
especially when the case has not been listed for so long.
27. In Rafiq and another vs Munshilal and another11, 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 watchdog of the advocate that the latter
appears in the matter when it is listed. It has no part of his job".
28. Merely by being parties to the Second Appeal, the petitioners' asser-
tion that their father once looked after the litigation in question cannot be
disregarded. While both sides have presented arguments concerning the
implications of the petitioners' father's death and its potential to abate the
Appeal, this Court holds that such matters can be addressed at the appro-
priate stage of the proceedings. Consequently, the petition will not be dis-
missed on this basis.
29. It is undisputed that one of the legal representatives of the deceased
Respondent, namely Murali Krishna, passed away on June 12, 2012. The
proposed parties are the legal heirs of the late Murali Krishna, and their
status as such is not contested. Consequently, I.A. Nos. 1 to 3 have been
filed to condone the delay in bringing forth the legal representatives of the
deceased and to seek the setting aside of the abatement order.
A.I.R. 1981 SC 1400
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
30. I feel that it would be useful to refer to the judgment of the Hon'ble
Supreme Court in Perumon Bhagvathy Devaswom vs Bhargavi Amma
supra12. In this case, the Court, after discussing several judgments of the
Supreme 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, C.P.C., along with an application
under Section 5, Limitation Act for condonation of delay in applying to
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
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. 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 the sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court
depends on the nature of the application and the facts and
circumstances of the case. For example, courts view delays in
making applications in a pending appeal more leniently than delays
(2008) 8 SCC 321
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
in the institution of an appeal. The courts view applications relating
to lawyers' lapses more leniently than applications relating to
litigants' 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.
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 Rao13.
31. Learned Counsel for the Petitioners relied on the decision in Ram
Nath Sao v. Gobardhan Sao14, the Hon'ble Supreme Court held that:
12. Thus, it becomes plain that the expression "sufficient cause"
within the meaning of Section 5 of the Act or Order 22 Rule 9 of the
Code or any other similar provision should receive a liberal
construction so as to advance substantial justice when no negligence
or inaction or want of bona fides is imputable to a party. In a
particular case, whether the explanation furnished would constitute
"sufficient cause" or not will be dependent upon the facts of each
case. There cannot be a straitjacket formula for accepting or rejecting
an explanation furnished for the delay caused in taking steps. But
one thing is clear the courts should not proceed with the tendency of
finding fault with the cause shown and reject the petition by a
slipshod order in over-jubilation of disposal drive. Acceptance of the
explanation furnished should be the rule and refusal, an exception,
more so when no negligence or inaction or want of bona fides can be
A.I.R. 2009 SC 2907
(2002) 3 SCC 195
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
imputed to the defaulting party. On the other hand, while considering
the matter, the courts should not lose sight of the fact that by not
taking steps within the time prescribed, a valuable right has accrued
to the other party, which should not be lightly defeated by condoning
delay in a routine-like manner. However, by taking a pedantic and
hypertechnical view of the matter, the explanation furnished should
not be rejected when stakes are high and/or arguable points of facts
and law are involved in the case, causing enormous loss and
irreparable injury to the party against whom the lis terminates, either
by default or inaction and defeating valuable right of such a party to
have the decision on merit. While considering the matter, courts have
to strike a balance between the resultant effect of the order it is going
to pass upon the parties either way.
32. 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
pedantic approach by observing strict adherence to the procedural aspects
of the law. In Sardar Amarjit Singh Kalra V. Pramod Gupta15, 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
(2003) 3 SCC 272
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
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..."
33. The Hon'ble Apex Court, in the case of Banwari Lal (dead) and
another vs Balbir Singh16, has also emphasised having a liberal ap-
proach in the matter of setting aside abatement or taking legal representa-
tives of a deceased litigant on record. By observing that provisions are not
penal in nature and are a rule of procedure, the substantial rights of the
parties cannot be defeated by the Court with a pedantic approach.
34. This Court views that, in evaluating whether a sufficient cause exists,
the paramount objective is to ensure substantial justice for all parties in-
volved. Technicalities should not hinder the Court from administering fair
justice. There is no material indicating any mala fides on the part of the Pe-
titioners regarding the delay in their applications.
35. 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
(2016) (1) SCC 607
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
parties do not resort to dilatory tactics but seek their remedy promptly. 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.
36. In light of the preceding discussion, this Court views that the reasons
provided by the petitioners for the delay are deemed plausible and
believable enough to warrant a decision on the merits of the Second
Appeal; however, the respondents deserve costs for the protracted delay in
filing the applications and this Court further holds that the failure to bring
the legal representatives of the deceased Respondent on record within the
stipulated timeframe constitutes a procedural irregularity. Nevertheless, if
this irregularity is not condoned, it may jeopardise the substantive rights of
the parties involved. Accordingly, the Points are answered.
37. In the result, I.A. Nos.1 and 3 of 2022, as well as I.A. Nos. 1 to 3 of
2023 in the second Appeal, are allowed, subject to the condition that the
Petitioners shall pay costs of Rs.2,000/- (Rupees Two Thousand Only) in
each petition to the Respondents through their Counsel within two (02)
weeks from the date of receipt of a copy of this common order. Therefore,
the total amount payable will be Rs.10,000/-. Upon compliance with this
condition, the Registry is directed to implement the necessary
amendments as required.
______________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 14.10.2024
SAK
T.M.R., J
I.A.Nos.1 & 3 of 2022 and 1 to 3 of 2023 in
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
I.A.Nos.1 and 3 of 2022 & 1 to 3 of 2023
in
SECOND APPEAL NO.900 OF 2000
Date:14.10.2024
SAK
