Delhi High Court
Dlf Homes Rajapura Pvt. Ltd vs Late O.P. Mehta & Anr. on 11 July, 2022
$~ (Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 7th July, 2022
Pronounced on: 11th July, 2022
+ CM(M) 574/2022, CM 27502/2022 (exemption), CM
27501/2022 (stay) and CM 29443/2022 (stay)
DLF HOMES RAJAPURA PVT. LTD ..... Petitioner
Through: Ms. Kanika Agnihotri, Ms.
Sonia Dhamija, Ms. Shweta Priyadarshni,
Ms. Seema Sundd, Mr. Prabhat Ranjan, Mr.
Alabhya Dhamija and Mr. Drouhn Garg,
Advs.
Versus
LATE O.P. MEHTA & ANR. ..... Respondents
Through: Mr. Chandrachur Bhattacharya,
Mr. Manoj Kumar Dubey and Ms. Divya,
Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
11.07.2022
Factual Backdrop
1. Consumer Case No. 697/2018 was preferred by O.P. Mehta and
Siddharth Wadia, the respondents herein, against the petitioner DLF
Homes Rajapura Pvt Ltd, before the learned National Consumer
Disputes Redressal Commission (―the learned NCDRC‖) under
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CM(M) 574/2022 Page 1 of 44
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Section 12(1)(c)1 read with Section 13(6)2 of the Consumer Protection
Act, 1986 (―the Act‖, hereinafter) read with Order I Rule 83 of the
Code of Civil Procedure, 1908 (CPC).
2. Consumer Case No. 697/2018 would be referred to, hereinafter,
as ―the complaint‖.
3. Consumer Case No. 697/2018 was filed as a ―joint consumer
complaint‖, and was stated to have been ―preferred in a representative
capacity .... for the benefit of entire class of persons having the same
interest‖, before the learned NCDRC. The consumers purportedly
having the same interest, whom the respondents sought to represent,
were investors in the ‗Maiden Heights' housing project of the
petitioner at Bangalore. The complaint averred that Clause 9.3(a) of
1
12. Manner in which complaint shall be made. -
(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or
any service provided or agreed to be provided may be filed with a District Forum by -
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(c) one or more consumers, where there are numerous consumers having the same interest,
with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so
interested;‖
13. Procedure on admission of complaint. -
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(6) Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-
section (1) of Section 2, the provisions of Rule 8 of Order I of the First Schedule to the Code of
Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference
therein to a suit or decree shall be construed as a reference to a complaint or the order of the District
Forum thereon.
The relevant clauses of Order I Rule 8 read thus:
―8. One person may sue or defend on behalf of all in same interest. -
(1) Where there are numerous persons having the same interest in one suit,-
(a) one or more of such persons may, with the permission of the Court,
sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all
persons so interested;
(b) the Court may direct that one or more of such persons may sue or be
sued, or may defend such suit, on behalf of, or for the benefit of, all persons so
interested.
(2) The Court shall, in every case where a permission or direction is given under
sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all
persons so interested, either by personal service, or, where, by reason of the number of
persons or any other cause, such service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.‖
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the Flat Buyers Agreement, executed between the petitioner and each
of the subscribers/investors in the project, required the petitioner to
hand over, to the investors, possession of the flats in the project within
60 days from the date of their application. Qua Respondents 1 and 2,
for example, the complaint alleged that, though the flats were required
to be handed over on 13th April 2014 and 24th May 2014 respectively.
Instead, highly belated final demand notes were issued; to Respondent
1 on 19th December 2016 and to Respondent 2 on 7th June 2016. This,
it was alleged, had breached the Flat Buyers Agreement. Possession
of the flats, it was asserted, was required to be handed over on 13 th
April 2014. Possession of the flats was offered to the investors much
later, but, even then, the complaint alleged that the flats were not in
habitable condition, and several facilities and amenities, which were
required to be provided in the flats, including permanent electricity
and water connection, were absent.
4. For these reasons, the complaint sought a direction to the
petitioner to refund, to the respondents and other flat buyers having
the same interest, the amounts deposited by them with the petitioner
along with interest thereon @ 18% per annum from the date of deposit
till the date of actual refund. Additionally, damages of ₹ 10 lakhs to
each investor and costs of the complaint were also claimed.
5. The complaint was accompanied by an application under
Section 12(1)(c) of the Act, for permission to the respondents to file a
consumer complaint in representative capacity, representing the
interest of all the investors in the project. Permission, as sought, is yet
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to be granted by the learned NCDRC.
6. The impugned order, dated 18th April 2022, was passed before
arguments were heard on the application of the respondents under
Section 12(1)(c) of the Act. As such, this judgement examines the
sustainability of the impugned order when permission to file a joint
application was yet to be granted under Section 12(1)(c). The Court
is, therefore, considering whether the learned NCDRC could have
passed the impugned order dated 18th April 2022 at that stage.
7. On 19th July 2019, the learned NCDRC noted that, during the
course of the proceedings before it in connection with the aforesaid
complaint, Respondent 1 O.P. Mehta expired. Accordingly, the
learned NCDRC directed the respondents to take steps to bring the
legal representatives of Respondent 1 on record, by filing the requisite
application within one week.
8. IA 18591/2019, for bringing on record the legal representatives
of Respondent 1 came to be filed by the respondents on 27 th
November 2019.
9. On 4th December 2019, the learned NCDRC noted that IA
18591/2019 did not disclose the date of death of Respondent 1 O.P.
Mehta and was also not supported by any Death Certificate. The
application was, therefore, directed to be renotified on 9th April 2020.
The respondents were directed to file a supplementary affidavit
disclosing the date of death of Respondent 1 O.P, Mehta and also to
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annex his Death Certificate. Additionally, an application for
condonation of delay in filing IA 18591/2019 was also directed to be
filed at the earliest. The delay, it is relevant to note, was admittedly of
607 days.
10. On or around 18th December 2019, the respondents filed IA
19644/2019 seeking condonation of the delay in filing IA 18591/2019.
The reason for delay, as advanced in the said application, are to be
found in paras 5 and 6 thereof, which read thus:
―5. That there was a delay in bringing on record the legal
heirs of late Shri OP Mehta since the surviving class 1 legal
heirs of the deceased late Shri O P Mehta, i.e. his son Vinay
Mehta, wife Uma Mehta who are staying in Delhi, but his
daughters Mrs Leena Goswaml and Dr Sonia Arora are
staying outside Delhi.
6. Therefore it took some to co-ordinate and obtain the
requite documents and the affidavits and the copies of
passport from each of the legal heirs. The said delay is not
intentional and may kindly be condoned. The same as not
moved before since the complaint has not been admitted as a
class action yet.‖
11. It may be noted that the delay in filing IA 18591/2019 was of
607 days. The petitioner also filed before the learned NCDRC, IA
3063/2021 under Order XXII Rule 3(2) of the CPC4, for termination
of proceedings in relation to Consumer Case No. 697/2018, as having
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. -
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the
surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right
to sue survives, the Court, on an application made in that behalf, shall cause the legal representative
of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1), the suit
shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the
Court may award to him the costs which he may have incurred in defending the suit, to be
recovered from the estate of the deceased plaintiff.
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abated on the expiry of one week from the passing of the order dated
19th July 2019 (supra) by the learned NCDRC, whereby the
respondents were directed to file the application for impleadment of
the legal representatives of Respondent 1 O.P. Mehta within one
week. The said application not having been filed within one week, i.e.
by 26th July 2019, IA 3063/2021 asserted that the complaint had
abated. No application for setting the abatement having been filed by
the respondents, the application sought termination of the proceedings
relating to Consumer Case 697/2018, as having abated by application
of Order XXII Rule 3(2) of the CPC.
12. Though formal orders on the aforesaid IA 3063/23021 are yet to
be passed by the learned NCDRC, the impugned order dated 18th April
2022 effectively addresses the said application, as well as the
contentions and prayers contained therein.
Rival Contentions before the learned NCDRC
13. Before the learned NCDRC, the petitioner contended that by
operation of Order II Rule 3(2) of the CPC, on the expiry of 60 days
from the death of Respondent 1 O.P. Mehta or, at the latest, on 26 th
July 2019, when the period of one week for filing the application for
substitution of legal representatives, granted by the learned NCDRC,
had expired, the complaint filed by the respondents stood abated by
operation of Order XXII Rule 3(2) of the CPC. In order to revive the
proceedings, an application to set aside the abatement was required to
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be filed under Order XXII Rule 9(2)5 of the CPC. The period for
filing such application, as per Article 121 of the Limitation Act, 1977,
was 60 days from the date of abatement. No application for setting
aside the abatement of the complaint had ever been filed; accordingly,
the petitioner submitted, before the learned NCDRC, that the
proceedings stood concluded and the belated application for filing of
substitution of legal heirs of Respondent 1 O.P. Mehta could not
resuscitate it.
14. Without prejudice, it was contended that, even otherwise, IA
18591/2019 for substitution of the legal representatives of Respondent
1 had been filed after a delay of 607 days, and no sufficient cause
explaining such delay was to be found in IA 19644/2020, which
sought condonation thereof. IA 19644/2020, therefore, it was
submitted, deserved to be dismissed and consequently, IA 18591/2019
would also not survive for consideration. The petitioner relied, in
support of the aforesaid contentions, on the decisions in Budh Ram v.
Bansi6 and Gurnam Singh v. Gurbachan Kaur7.
15. The respondents sought to contest the aforesaid assertions of the
petitioner as advanced before the learned NCDRC by relying on the
9. Effect of abatement or dismissal. -
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(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 of 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).
(2010) 11 SCC 476
(2017) 13 SCC 414
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decision in Dhurandhar Prasad Singh v. Jai Prakash University8
and Mithailal Dalsangar Singh v. Annabai Devram Kini9.
The Impugned Order
16. The learned NCDRC rejected both the contentions of petitioner.
Resultantly, the delay in filing the application for substitution of legal
representatives was condoned and the substitution of legal
representatives of Respondent 1 O.P. Mehta was permitted. IA
18591/2019 and IA 19644/2019 were both, therefore, allowed. In so
deciding, the learned NCDRC relied upon the judgments in Shri
Rikhu Dev Chela Bawa Harjug Dass v. Som Dass10, Dhurandhar
Prasad Singh8 and Mithailal Dalsangar Singh9.
17. Aggrieved, by the aforesaid decision of the learned NCDRC,
the respondent before the learned NCDRC, has petitioned this Court
under Article 227 of the Constitution of India.
Rival contentions before this Court
18. Detailed arguments were advanced on behalf of the petitioner
by Ms. Kanika Agnihotri and on behalf of the respondents by Mr.
Chandrachur Bhattacharya, learned Counsel.
19. Ms. Agnihotri submitted that the decisions, on which the
(2001) 6 SCC 534
(2003) 10 SCC 691
(1976) 1 SCC 103
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learned NCDRC relied, could not be regarded as authorities for the
proposition that, once a complaint had abated on account of the death
of one of several complainants, the requirement of filing of a formal
application to set aside abatement could be done away with and that an
application to substitute the legal heirs of the deceased plaintiff would
suffice in its place.
20. Mithailal Dalsangar Singh9, she submits, emanated from a suit
filed by three plaintiffs, one of whom died. The suit, therefore,
abated. The legal representative of the deceased plaintiff moved an
application for setting aside abatement within time, which was
allowed. The issue before the Supreme Court was whether, as no
application for setting aside abatement had been filed by either of the
remaining two plaintiffs, who were alive, the suit could be treated as
continuing to stand abated. This, she submits, cannot be equated with
a situation in which no application for abatement, even by the legal
representatives of the deceased complainant (as in the present case)
was filed. Mithailal Dalsangar Singh9, she submits, therefore, turned
on its own facts, which were clearly distinguishable from those in the
present case.
21. She also relies on the decision in Madan Naik v.
Hansubala Devi11 to contend that a specific order under Order XXII
Rule 9 of the CPC, setting aside the abatement, was necessary. This,
too, according to her, underscores the position that abatement of
proceedings, once it has taken place by operation of law, can be
(1983) 3 SCC 15
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extinguished, and the proceedings can be revived only if a formal
application to set aside abatement is moved and a formal order setting
aside abatement is passed. Neither of these eventualities has come to
pass in the present case. Accordingly, Ms. Agnihotri submits that
there could be no question of allowing the application, by the
respondents, seeking to substitute the legal representatives of the
deceased Respondent 1.
22. Ms. Agnihotri further submits that the decision of the learned
NCDRC, insofar as it condones the unconscionable delay in filing the
application for substitution of legal representatives of Respondent 1, is
also laconic. She submits that a bare reading of the application for
condonation of delay would reveal that there were no substantial
grounds justifying such condonation, especially considering the extent
of delay. The decision to condone delay, as contained in the
impugned order passed by the learned NCDRC is, she submits, non-
speaking in nature. Even for that reason, she submits that impugned
order cannot sustain on facts or in law.
23. To support her contention that the delay in moving an
application seeking setting aside abatement of proceedings, once the
proceedings stand abated, requires to be properly explained with
sufficient reasons, Ms. Agnihotri relies on Balwant Singh v. Jagdish
Singh12 and U.O.I. v. Ram Charan13.
(2010) 8 SCC 685
AIR 1964, SC 215
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24. Responding to the submissions of Ms. Agnihotri, Mr.
Bhattacharya, at the very outset, submits, relying on Mohd. Shafeeq v.
Mirza Mohd. Hussain14 that an order condoning delay is, by its very
nature, discretionary, and is impervious to interference under Article
227 of the Constitution of India.
25. On merits, too, submits Mr. Bhattacharya, no cause for
interference with the decision of the learned NCDRC to allow the
application for substitution of legal heirs can be said to exist, as the
decisions in Mithailal Dalsangar Singh9, Dhurandhar Prasad Singh8
and Rikhu Dev10, on which, the learned NCDRC relied, squarely
apply.
26. On the aspect of condonation of delay, Mr. Bhattacharya
submits that, in fact, no delay in preferring the application for
substitution of legal heirs can be said to exist at all, as the petitioner
had filed Consumer Case No. 697/2018 in a representative capacity,
under Section 12(1)(c) of the Act. Where a proceeding is filed in a
representative capacity, he submits that Order XXII Rules 3 and 4 of
the CPC are not applicable. Rather, the provision which applies is
Order XXII Rule 10 of the CPC. This position of law, submits Mr.
Bhattacharya, stands settled by the judgment of the Supreme Court in
Rikhu Dev10 which, in para 8 of the report, holds that ―when a suit is
brought by or against a person in a representative capacity and there is
devolution of the interest of the representative, the Rule that has to be
applied is Order XXII Rule 10 and not Rules 3 or 4, whether the
(2002) 9 SCC 460
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devolution takes place as a consequence of death or for any other
reason‖.
27. To a query from the Court, as to whether, this ratio would apply
even before the application under Section 12(1)(c) of the Act,
allowing Consumer Case No. 697/2018 to be filed in a representative
capacity, was allowed by the learned NCDRC, Mr. Bhattacharya
answers in the affirmative, relying, for the purpose, on the word
―brought‖, as implied by the Supreme Court in Rikhu Dev10. He
submits that, while examining whether the provision/provisions which
applies is/are Rules 3 and 4 of Order XXII of the CPC or Rule 10 of
Order XXII of the CPC, what is to be seen whether the suit is
―brought‖ in a representative capacity. ―Brought‖, submits Mr
Bhattacharya, means ―taken‖ or ―carried‖. Relying on this
etymological understanding of the word ―brought‖, Mr. Bhattacharya
equates ―bringing‖ of the suit with ―filing‖ thereof. As such, once
Consumer Case No. 697/2018 had been filed in the learned NCDRC,
Mr. Bhattacharya submits that, ipso facto, it had been ―brought‖. I
may observe, here, that, as the word ―brought‖ is not a term of art but
one of common usage, there can hardly be any dispute regarding its
meaning, scope or ambit.
28. The same principle, submits Mr. Bhattacharya, emerges from
the decision in Dhurandhar Prasad Singh8. To support his
submissions Mr. Bhattacharya has placed reliance on Section 12(1)(c)
read with Section 13(6) and Section 2(1)(b)(iv)15 of the Act and Order
2. Definitions. -
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I Rule 8 of the CPC.
29. Mr. Bhattacharya also relied on the judgments of the Supreme
Court in Anjum Hussain v Intellicity Business Park Pvt Ltd16 and the
order dated 8th August 2017 of the Supreme Court in Manoj Verma v.
Jaipuria Infrastructure Developers Pvt Ltd17, as well as the judgment
dated 22nd April 2019 of the learned NCDRC in Manmeet Kunwar v.
Vahe Project Pvt Ltd18, which stood affirmed by the Supreme Court
vide order dated 2nd July 2019 in Vahe Project Pvt Ltd v. Manmeet
Kunwar19 to submit that the complaint was maintainable in a
representative capacity under Section 12(1)(c) of the Act. However, I
do not propose to enter into the aspect of the merits of the application
filed by the respondents under Section 12(1)(c) of the Act, as the
learned NCDRC is presently in seisin of the application.
30. I may note that Ms. Agnihotri, too, did not seriously contest the
said application before this Court, as the orders stand reserved before
the learned NCDRC thereon. Her contention is that, the impugned
order having been passed at a stage when the application of the
respondents under Section 12(1)(c) of the Act had not even been
heard, it was not open to the respondents to urge that, as the consumer
complaint had been brought in a representative capacity, Order XXII
(1) In this Act, unless the context otherwise requires,--
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(b) ―complainant‖ means -
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(iv) one or more consumers, where there are numerous consumers having
the same interest;
(2019) 6 SCC 519
Civil Appeal 338/2017
Consumer Case 2022/2018
Civil Appeal 5099/2019
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Rules 3 and 4 of the CPC would not apply. She submits that a mere
averment in the complaint that it was being filed in a representative
capacity would not suffice for the Court to treat as having been
brought in that capacity. She also pointed out that the complaint even
on its face, claimed to have been filed as a joint complaint and not as a
complaint in representative capacity.
Analysis
31. From the submissions advanced by Ms. Agnihotri, the issues
which arise for consideration may be identified as
(i) whether the consumer complaint case filed by the
respondents had abated, no formal application for substitution
of the legal heirs of Respondent 1 having been preferred within
the time stipulated in that regard (which would also involve the
issue of whether Order XXII Rules 3 and 4 of the CPC were
applicable in the present case),
(ii) if so, whether IA 18591/2019, for substitution of the legal
representatives of the deceased Respondent 1, could suffice and
be treated as an application for setting aside the abatement of
the complaint, and
(iii) whether the decision of the learned NCDRC to condone
the delay in filing IA 18591/2019, to bring the legal
representatives of the deceased Respondent 1 on record, and,
thereby, to allow IA 19644/2019, can sustain.
Needless to say, all these issues have to be addressed keeping in mind
the parameters of the jurisdiction vested in this Court by Article 227 of
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the Constitution of India, the present petition having been preferred
under the said provision.
32. Having heard learned Counsel for the parties at length and
having perused the record and the judicial authorities cited at the Bar,
I am of the considered opinion that, while issues (i) and (ii) have to be
answered in favour of the respondents and against the petitioner, issue
(iii) deserves to be answered in favour of the petitioner and against the
respondents. The consequence, needless to say, would be that the
impugned order would be liable to be set aside.
33. I proceed to address the three specific issues which arise for
consideration, individually, thus:
Re: Issues (i) and (ii)
34. Ms. Agnihotri's initial contention is that, by operation of Order
XXII Rule 3, the complaint filed by the respondents abated,
consequent on the failure of the respondent to file an application to
substitute the legal representatives of the deceased Respondent 1 on or
before 26th July 2019, being the date on which the said application was
required to be filed, as directed by order dated 23 rd July 2019 of the
learned NCDRC.
35. As against this, Mr. Bhattacharya submits, relying on Rikhu
Dev10 and Dhurandhar Prasad Singh8 that, Order XXII Rule 3 of the
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CPC does not apply in the facts of the present case, as the consumer
complaint had been brought by his client in a representative capacity.
36. The application of Order XXII, in the event of the death of a
complainant during pendency of proceedings before the learned
NCDRC, cannot be questioned, in view of Section 13(7) of the
Consumer Protection Act, which expressly renders the provision
applicable.
37. The question, then, is whether, of the various Rules under Order
XXII of the CPC, Rules 3 and 4 would apply, as contended by Ms.
Agnihotri, or Rule 10 would apply, as contended by Mr. Bhattacharya.
38. Mr. Bhattacharya relies on Rikhu Dev10. A perusal of the
decision would, therefore, be apposite.
38.1 Rikhu Dev filed a suit before the learned trial court, seeking
recovery of possession of Shiromani Nirankari Dera, situated at
Patiala, of which Rikhu Dev claimed to be the mahant-in-charge, with
the right to manage the properties attached to the Dera. Against this,
Som Dass, the respondent before the Supreme Court, contended that
the Dera was an independent Dera, of which he was in possession of
the properties, as its lawfully appointed mahant.
38.2 Rikhu Dev's suit was decreed by the learned trial Court. Som
Dass appealed to the High Court. The appeal of Som Dass was
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allowed by the first appellate court, against which Rikhu Dev filed a
second appeal to the High Court.
38.3 During the pendency of the second appeal, Som Dass expired
on 13th October 1970. No application was preferred, to bring on record
the legal representative of Som Dass, within the time statutorily
prescribed in that regard. The second appeal filed by Rikhu Dev,
consequently, abated.
38.4 An application was made by Rikhu Dev on 1 st February 1971,
seeking to implead one Shiam Dass, as the chela left behind by Som
Dass. As the application had been preferred beyond the time
stipulated for filing an application for substitution of legal
representatives, Rikhu Dev prayed that the application be treated as an
application for setting aside the abatement of the appeal filed by him
before the High Court. It was also prayed that the delay in filing the
application be condoned as Rikhu Dev was unaware of the death of
Som Dass.
38.5 The High Court, holding that there was no substance in the plea
of Rikhu Dev that he was unware of the death of Som Dass, held that
the second appeal filed by Rikhu Dev had abated and no ground for
setting aside the abatement existed.
38.6 The Supreme Court, in the appeal preferred by Rikhu Dev
against the aforesaid decision of the High Court, held thus, in paras 6
to 8 of the report:
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―6. We do not think that the view of the High Court was
correct. The suit was filed on the basis that the appellant as
the lawfully appointed mahant was entitled to manage-the
properties of-the Dera- at Landeke that the defendant was
unlawfully claiming to be the mahant of the Dera and entitled
to manage the properties of the Dera and that the appellant
was entitled to be in possession of the properties. As already
stated the contention of the defendant was that though the
properties belonged to the Dera, he was its lawfully appointed
mahant and that the appellant had no right to recover
possession of the property of the Dera. When Som Dass
died,the interest which was the subject-matter of the suit,
devolved upon Shiam Dass as he was elected to be the mahant
of the Dera and the appeal could be continued under Order 22,
Rule 10, of the Civil Procedure Code against the person upon
whom the interest had devolved.
7. Order 22, Rule 10 reads:
R. 10. (1) In other cases of an assignment, creation or
devolution of any interest during the pendency of a
suit, the suit may, by leave of the Court, be continued
by or against the person to or upon whom such interest
has come or devolved.
(2) The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling
the person who procured such attachment to the benefit
of sub-rule (1).
8. This rule is based on the principle that trial of a suit
cannot be brought to an end merely because the interest of a
party in the subject matter of the suit has devolved upon
another during the pendency of the suit but that suit may be
continued against the person acquiring the interest with the
leave of the Court. When a suit is brought by or against a
person in a representative capacity and there is a devolution
of the interest of the representative, the rule that has to be
applied is Order 22, rule 10 and not rule 3 or 4, whether the
devolution takes place as a consequence of death or for any
other reason. Order 22, rule 10, is not confined to devolution
of interest of a party by death, it also applies if the head of the
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mutt or manager of the temple resigns his office or is removed
from office. In such a case the successor to the head of the
mutt or to the manager of the temple may be substituted as a
party under this rule. The word 'interest' which is mentioned
in this rule means interest in the property i.e., the subject
matter of the suit and the interest is the interest of the person
who was the party to the suit.‖
(Emphasis supplied)
39. Mr. Bhattacharya's contention is that the issue in controversy in
the case at hand is, on all fours, with that which arose in Rikhu Dev10.
He submits that, in Rikhu Dev10, the suit was filed against Som Dass,
impleading Som Dass in a representative capacity. Som Dass having
expired, and his interest having devolved on Shiam Dass, the Supreme
Court held that Order XXII Rule 10 applied, and not Order XXII
Rules 3 or Rule 4. The only difference between Rikhu Dev and the
present case lay, according to Mr. Bhattacharya, in the fact that in that
case, the defendant had been sued in a representative capacity,
whereas, in the present case, the complainants have filed the complaint
in a representative capacity. There, the defendant who had been sued
in a representative capacity had expired and his legal representative
was being sought to be brought on record. Here, submits Mr.
Bhattacharya, Respondent 1, as the complainant who had filed the
complaint in a representative capacity, expired and his legal
representatives were being sought to be brought on record.
40. The law enunciated in Rinku Dev10 therefore, according to Mr.
Bhattacharya, is squarely applicable to the controversy in the present
case. Resultantly, there can be no question, in his submission, of
applying Rules 3 and 4 of Order XXII.
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41. I am unable to subscribe to this submission. Rikhu Dev10 is, in
my considered opinion, clearly distinguishable on facts. Rikhu Dev10
was not a case in which several defendants had been sued, one of
whom expired during the pendency of the proceedings. The present
case, on the other hand, is one in which more than one complainants
had filed the complaint, purportedly representing the interests of all
the investors in the project, and one complainant expired.
42. Even if this factor were to be overlooked, in my opinion, the
impugned order having been passed at a stage when the application
under Section 12(1)(c) of the Act had not even been taken up for
consideration, the benefit of the decision in Rinku Dev10 could not
enure in the respondent's favour.
43. The emphasis laid by Mr. Bhattacharya on the word ―brought‖
is, to my mind, really irrelevant. The contention of Mr. Bhattacharya,
that mere filing of the complaint before the learned NCDRC was
sufficient to treat the complaint as having been ―brought‖ by the
respondents cannot, in my view, sustain in law. The reason is
apparent from a bare reading of Section 12(1)(c) of the Act.
44. Section 12(1)(c) of the Act states that ―a complaint in relation to
any goods sold or delivered or agreed to be sold or delivered or any
service provided or agreed to be provided may be filed with a District
Forum by one or more consumers, where there are numerous
consumers having the same interest, with the permission of the District
Forum, on behalf of, or for the benefit of, all consumers so interested‖.
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This provision has been made applicable, mutatis mutandis, to the
learned NCDRC, by Section 22(1) of the Act. By application of
Section 22(1), therefore, the words ―District Forum‖, as contained in
Section 12(1)(c) may be read as ―National Commission‖.
45. Section 12(1) makes it apparent that a complaint, in a
representative capacity, may be filed with the concerned consumer
protection forum only with the permission of such forum. In the case
of the learned NCDRC, therefore, a complaint, in representative
capacity, may be filed with the learned NCDRC, only with the
permission of the learned NCDRC. Till such time as permission is
granted, therefore, the complaint cannot be treated as having been
filed, even if it has, technically speaking, been tendered in the
Registry. Undisputedly, on the date when the impugned order came to
have been passed by the learned NCDRC, no permission had been
granted by it, under Section 12(1)(c) of the Act, for filing a complaint
in a representative capacity. Even if, therefore, the expression
―brought‖ as employed by the Supreme Court in para 8 of the report in
Rinku Dev10 is to be equated with ―filed‖, therefore, I am of the
opinion that, till the grant of permission by the learned NCDRC, the
complaint could not be treated as having been brought by the
respondents in a representative capacity. On the date of passing of the
impugned order by the learned NCDRC, therefore, it could not be said
that the respondent had brought the complaint before the learned
NCDRC in a representative capacity.
46. Any other interpretation could also lead to very anomalous
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results. The outcome of the application, filed by the respondents
under Section 12(1)(c) of the Act, cannot be predicted as, among other
things, ―sameness of interest‖ is required to be established, positively,
for a complaint to be filed in a representative capacity, as held by the
Supreme Court in Brigade Enterprises Limited v Anil Kumar
Virmani20 as well as in the decision in Anjum Hussain16, on which
Mr. Bhattacharya placed reliance. I do not deem it appropriate to
make any further observations in that regard, as the learned NCDRC is
in seisin of the application of the respondents under Section 12(1)(c)
of the Act.
47. Suffice it, nonetheless, to reiterate that, on the date when the
impugned order came to be passed, it could not be said that the
consumer complaint of the respondents had been brought in a
representative capacity so as to exclude the application of Rules 3 and
4 of Order XXII, by applying the law laid down in Rinku Dev10. I,
therefore, am of the opinion that the contention, of Mr. Bhattacharya,
that Rules 3 and 4 of Order XXII of the CPC did not apply in the
present case, which was governed exclusively by Order XXII Rule 10,
is bereft of substance. It is accordingly rejected.
48. Once it is held that Rules 3 and 4 of Order XXII apply to the
present case, the inexorable sequitur is that, no application for
substitution of the legal representative of Respondent 1 having been
filed on or before 23rd July 2019, the complaint filed by the
respondents abated on the said date.
(2022) 4 SCC 138
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49. Issue I, however, does not, thereby, stand answered. It has
further to be considered whether, even if Order XXII Rules 3 and 4
applied, IA 18591/2019, filed by the respondents for substitution of
legal representatives of Respondent 1, could be treated as sufficient, as
no separate application for setting aside abatement of the consumer
complaint, had been moved.
50. In my view, this issue stands covered by the judgment of the
Supreme Court in Mithailal Dalsangar Singh9, as correctly held by
the learned NCDRC in para 11 of the impugned order, and no
occasion to interfere therewith can be said to exist.
51. The attempt of Ms. Agnihotri to distinguish Mithailal
Dalsangar Singh9 on facts, has, in my considered opinion, to fail. Ms.
Agnihotri sought to distinguish the said decision on the ground that, of
the three plaintiffs in that case, one plaintiff had expired, and an
application to set aside the abatement of the suit, consequent to his
expiry, had been moved by his legal representative in accordance with
law. The default, she sought to submit, was only in filing on
application for setting aside the abatement of the legal representatives
of the remaining two plaintiffs. As against this, she sought to
emphasize the fact that, in the present case, no application to set aside
the abatement of the complaint filed by the respondents had been filed
by any of the legal representatives at any point of time.
52. That, however, cannot, in my considered opinion, constitute a
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While, on facts, the distinction between that case and the present, as
correctly pointed by Ms. Agnihotri, cannot be gainsaid, the principle
of law, as enunciated in para 8 of the report in the said decision,
would, in my view, apply mutatis mutandis to the case at hand as well.
For ready reference, para 8 of the decision in Mithailal Dalsangar
Singh5 may be reproduced thus:
―8. Inasmuch as the abatement results in denial of hearing
on the merits of the case, the provision of abatement has to be
construed strictly. On the other hand, the prayer for setting
aside an abatement and the dismissal consequent a upon an
abatement, have to be considered liberally. A simple prayer
for bringing the legal representatives on record without
specifically praying for setting aside of an abatement may in
substance be construed as a prayer for setting aside the
abatement. So also a prayer-for setting aside abatement as
regards one of the plaintiffs can be construed as a prayer for
setting aside the abatement of the suit in its entirety.
Abatement of suit for failure to move an application for
bringing the legal representatives on record within the
prescribed period of limitation is automatic and a specific
order dismissing the suit as abated is not called for. Once the
suit has abated as a matter of law, though there may not have
been passed on record a specific order dismissing the suit as
abated, yet the legal representatives proposing to be brought
on record or any other applicant proposing to bring the legal
representatives of the deceased party on record would seek the
setting aside of an abatement. A prayer for bringing the legal
representatives on record, if allowed, would have the effect of
setting aside the abatement as the relief of setting aside
abatement though not asked for in so many words is in effect
being actually asked for and is necessarily implied. Too
technical or pedantic an approach in such cases is not called
for.‖
(Emphasis supplied)
53. The observations in para 8, in my considered opinion, are
omnibus in nature. They cannot be read as restricted to the facts in
Mithailal Dalsangar Singh9. Though there exists, classically, a
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principle that judgments of the Supreme Court are not to be equated
with the theorems of Euclid, and have to be understood in the
backdrop of the facts which were before the court, equally important,
in my opinion, is the principle that where the Supreme Court declares
the position that obtains in law, in rem, Courts lower in the judicial
hierarchy would be in error if they refuse to follow the principle, by
drawing distinctions on facts. Declarations of the law are, by dint of
Article 141 of the Constitution of India, binding on every judicial and
executive authority in the country.
54. A bare reading of para 8 of the report in Mithailal Dalsangar
Singh9 discloses that having, initially, held, in an omnibus fashion,
that ―a simple prayer for bringing legal representatives on record
without specifically praying for setting aside of an abatement may in
substance be construed as a prayer for setting aside the abatement‖,
the Supreme Court goes on to hold that ―so also a prayer for setting
aside abatement as regards one of the plaintiffs can be construed as a
prayer for setting aside the abatement of the suit in its entirety‖. The
words ―so also‖, as used by the Supreme Court, indicate that two
distinct propositions of law were being formulated. The first was that,
even if there was no separate prayer for setting aside the abatement of
a suit, a prayer for bringing the legal representatives of the deceased
party on record was capable of being regarded as a prayer for setting
aside the abatement of the suit. The second proposition, distinct from
the first, although connected therewith, is that where there are more
than one plaintiffs in a suit, and a prayer for setting aside abatement is
filed qua one of the plaintiffs, it can be treated as a prayer to set aside
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the abatement of the suit in its entirety. While this latter proposition is
undoubtedly rendered with reference to the facts which obtained in
Mithailal Dalsangar Singh9, the former general proposition, that a
simple prayer for substitution of legal heirs may be treated as a prayer
for setting aside abatement, even in the absence of any specific prayer
for setting aside abatement having been made, applies, in my view, as
an omnibus proposition of the law.
55. There is no reason, in my view, as to why the said principle
should not be applied in the facts of the present case. The case at hand
is also one in which there were two complainants. One of the
complainants expired. By operation of Order XXII Rule 3(2), the
complaint abated. Though no formal application for setting aside
abatement had been moved by the respondents, a belated application
was moved for substitution of the legal heirs of the deceased
Respondent 1. Applying the principle enunciated in Mithailal
Dalsangar Singh9, this application could legitimately be treated as an
application for setting aside the abatement of the complaint.
56. In any event, this view, as expressed by the learned NCDRC on
the basis of the decision in Mithailal Dalsangar Singh9, clearly does
not warrant interference by this Court within the confines of the
jurisdiction vested in it by Article 227 of the Constitution of India, as
it is a plausible - and, in my opinion, correct - interpretation of the
decision in Mithailal Dalsangar Singh9.
57. Resultantly, even while holding that Order XXII Rules 3 and 4
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of the CPC would apply in the present case, rather than Order XXII
Rule 10, I am unable to subscribe to the contention of Ms. Agnihotri
that, no application for setting aside the abatement of the complaint
filed by the respondents having been preferred, the application for
substitution of the legal heirs of Respondent 1 could not be treated as
sufficient to justify setting aside of the abatement. Mithailal
Dalsangar Singh9, in my view, clearly holds to the contrary and I am
in agreement with the findings, in that regard, as returned by the
learned NCDRC in the impugned order.
58. Ms Agnihotri had relied on judicial pronouncements, including
Ram Charan13 which hold that, once a suit abates under Order XXII
Rules 3 and 4 of the CPC, the remedy lies under Order XXII Rule 9.
Statutorily, there can be no cavil with this proposition. These
decisions do not, however, rule contrary to Mithailal Dalsangar
Singh9, which mitigates the rigour of the statutory scheme by
permitting an application under Order XXII Rule 3, if filed belatedly,
to be treated as an application to set aside the abatement; subject, of
course, to sufficient cause being made to condone the delay in filing
the application.
59. Ms. Agnihotri had sought to place reliance on the decision in
Madan Naik11, to contend that, while no specific order, under Order
XXII Rule 9 of the CPC, declaring proceedings to have abated as a
consequence of the death of any of the parties to the proceeding, is
required to be passed, such a specific order is necessary, while setting
aside the abatement under Order XXII Rule 9. No such specific order,
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she submits, having been passed by the learned NCDRC in the present
case, the proceedings in relation to the complaint stand abated.
60. While para 5 of the report in Madan Naik11 undoubtedly does
envisage passing of a specific order setting aside abatement, the
argument is really of no serious consequence in the present case, as
the impugned order dated 18th April, 2022 of the learned NCDRC,
specifically relies on paras 8 to 10 of Mithailal Dalsangar Singh9.
While doing so, the learned NCDRC has emphasized the finding, in
the said decision, that an application for substitution of legal heirs can,
in an appropriate case, be treated as an application for setting aside
abatement. Besides, as I have already approved this view, the
absence of any separate mention, by the learned NCDRC, in the
impugned order, that the abatement of the complaint stands set aside,
would, in its true sense, be a mere technicality, and cannot be regarded
as fatal to the impugned order.
61. Issue (i) and (ii), therefore, would stand answered in favour of
the respondents and against the petitioner.
Re: Issue (iii)
62. Issue (iii) which survives for consideration, addresses the
question whether the finding of the learned NCDRC, to the extent it
condones the delay in preferring IA 18591/2019 and, therefore, allows
IA 19664/2019, can be sustained.
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63. Mr. Bhattacharya contended, relying on Mohd. Shafeeq14, that
the decision to condone the delay in filing IA 18591/2019, being
discretionary in nature, cannot brook interference under Article 227 of
the Constitution of India. For this purpose, Mr. Bhattacharya relies
specifically on para 3 of the report in Mohd. Shafeeq10, which reads
thus:
―3. In our opinion, the High Court has taken too technical
a view of the error committed by the appellant in pursuing the
remedy available to him under the law. The appellant had
been prosecuting his remedy diligently and there is nothing to
doubt his bona fides. These aspects were taken into
consideration by the learned Additional District Judge while
condoning the delay in filing the revision. In our opinion, the
High Court ought not to have interfered with the order of the
Additional District Judge, condoning the delay in filing the
revision, being an order passed in exercise of discretion
vested in the learned Additional District Judge and for that
reason, was not open to interference by the High Court in
exercise of its supervisory jurisdiction under Article 227 of
the Constitution.‖
64. A plain reading of the decision in Mohd. Shafeeq14 reveals the
reliance, therein, placed by Mr. Bhattacharya, to be completely
misplaced. The decision does not, in any manner of speaking,
completely proscribe interference, under Article 227 of the
Constitution of India, with an order, by the court or forum below,
condoning delay. There is, equally, no principle in law that
discretionary orders are immune from interference under Article 227.
No doubt, discretionary orders would invite interference, under Article
227, on fewer occasions than others. Discretion, where vested in the
judicial authority, is, however, classically to be exercised judiciously,
in a manner which would convince a litigant that the court or forum
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has applied itself to all relevant aspects while exercising discretion.
Exercise of discretion, if arbitrary or capricious, or otherwise not
meeting the expectations and standards for such exercise can, in a give
case, justify interference under Article 227.
65. Having said that, the Article 227 court is required to be
conscious of the following principles from Wander Ltd v. Antox India
Pvt Ltd21, which delineate the scope and ambit of interference with
discretionary orders, albeit in appeal:
―13. On a consideration of the matter, we are afraid, the
appellate bench fell into error on two important propositions.
The first is a misdirection in regard to the very scope and
nature of the appeals before it and the limitations on the
powers of the appellate court to substitute its own discretion
in an appeal preferred against a discretionary order. The
second pertains to the infirmities in the ratiocination as to the
quality of Antox's alleged user of the trademark on which the
passing-off action is founded. We shall deal with these two
separately.
14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In such
appeals, the appellate court will not interfere with the exercise
of discretion of the court of first instance and substitute its
own discretion except where the discretion has been shown to
have been exercised arbitrarily, or capriciously or perversely
or where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An
appeal against exercise of discretion is said to be an appeal on
principle. Appellate court will not reassess the material and
seek to reach a conclusion different from the one reached by
the court below if the one reached by that court was
reasonably possible on the material. The appellate court
would normally not be justified in interfering with the
exercise of discretion under appeal solely on the ground that if
it had considered the matter at the trial stage it would have
1990 Supp SCC 727
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come to a contrary conclusion. If the discretion has been
exercised by the trial court reasonably and in a judicial
manner the fact that the appellate court would have taken a
different view may not justify interference with the trial
court's exercise of discretion. After referring to these
principles Gajendragadkar, J. in Printers (Mysore) Private
Ltd. v. Pothan Joseph22:
―... These principles are well established, but as has
been observed by Viscount Simon in Charles Osenton
& Co. v. Jhanaton23 '... the law as to the reversal by a
court of appeal of an order made by a judge below in
the exercise of his discretion is well established, and
any difficulty that arises is due only to the application
of well settled principles in an individual case'.‖
The appellate judgment does not seem to defer to this
principle.‖
66. Article 227 operates within a narrower compass than appellate
jurisdiction. Where, therefore, the scope of interference with
discretionary orders is limited even in exercise of appellate
jurisdiction, the scope of such interference, while exercising
jurisdiction under Article 227, would be still more circumscribed.
Such interference is not, however, foreclosed and, in an appropriate
case meriting interference, the Court would be in error if it refuses to
do so, merely because it is exercising jurisdiction under Article 227 of
the Constitution of India.
67. Remaining conscious of the narrow confines of Article 227
jurisdiction, while dealing with an order passed by the forum below in
exercise of discretion vested in it, this Court is required, therefore, to
AIR 1960 SC 1156
1942 AC 130
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examine whether the decision, of the learned NCDRC, to condone the
delay in filing IA 18591/2019 merits, or does not merit, interference.
68. The delay in filing IA 18591/2019 is, undisputedly, of 607 days.
It is, therefore, by no stretch of imagination, a delay which can be
lightly ignored. It is, to use an expression which has now become a
cliché, ―inordinate‖. The only explanation, forthcoming in IA
19664/2019, for condoning of the aforesaid delay of 607 days, as
contained in paras 5 and 6 of the said application, as reproduced
supra, is that two of the surviving class-I legal heirs of the deceased
Respondent 1, namely, his daughter Leena Goswami and Dr. Sonia
Arora, reside outside Delhi. The application does not state where they
reside. It is not the case of the respondents, in the application, that
they stay outside India, or at some such distant venue at which it is
difficult or impossible to reach them. Para 6 of the application goes
on to state that ―it took some time to coordinate and obtain the
requisite documents and the affidavits and the copies of passport from
each of the legal heirs‖. The time so taken is not mentioned.
Interestingly, the application reads ―therefore it took some to
coordinate and obtain the requite documents and the affidavits and the
copies of the passport from each of the legal heirs‖. Though this
aspect can by means be decisive, the care and caution with which the
application, which seeks condonation of delay of as many as 607 days,
was drafted, is self-evident.
69. In this context, the decisions in Balwant Singh12 and Ram
Charan13, on which Ms. Agnihotri placed reliance, assume
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significance. Both these decisions specifically dealt with a prayer for
condonation of delay in filing of an application for setting aside
abatement of proceedings. Balwant Singh12, in fact, also took into
account the decision in Mithailal Dalsangar Singh9 . In the context of
delay in filing of an application seeking setting aside of abatement of
proceedings, preferred under Order XXII Rule 9 of the CPC, Balwant
Singh12 holds, in para 25 to 27, 33 to 36 and 37 (to the extent
relevant), thus:
―25. We may state that even if the term `sufficient cause'
has to receive liberal construction, it must squarely fall within
the concept of reasonable time and proper conduct of the
concerned party. The purpose of introducing liberal
construction normally is to introduce the concept of
`reasonableness' as it is understood in its general connotation.
26. The law of limitation is a substantive law and has
definite consequences on the right and obligation of a party to
arise. These principles should be adhered to and applied
appropriately depending on the facts and circumstances of a
given case. Once a valuable right, as accrued in favour of one
party as a result of the failure of the other party to explain the
delay by showing sufficient cause and its own conduct, it will
be unreasonable to take away that right on the mere asking of
the applicant, particularly when the delay is directly a result of
negligence, default or inaction of that party. Justice must be
done to both parties equally. Then alone the ends of justice
can be achieved. If a party has been thoroughly negligent in
implementing its rights and remedies, it will be equally unfair
to deprive the other party of a valuable right that has accrued
to it in law as a result of his acting vigilantly.
27. The application filed by the applicants lack in details.
Even the averments made are not correct and ex-facie lack
bona fide. The explanation has to be reasonable or plausible,
so as to persuade the Court to believe that the explanation
rendered is not only true, but is worthy of exercising judicial
discretion in favour of the applicant. If it does not specify any
of the enunciated ingredients of judicial pronouncements, then
the application should be dismissed. On the other hand, if the
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application is bona fide and based upon true and plausible
explanations, as well as reflect normal behaviour of a
common prudent person on the part of the applicant, the Court
would normally tilt the judicial discretion in favour of such an
applicant. Liberal construction cannot be equated with doing
injustice to the other party‖
*****
33. Furthermore, it is also a well settled canon of
interpretative jurisprudence that the Court should not give
such an interpretation to provisions which would render the
provision ineffective or odious. Once the legislature has
enacted the provisions of Order 22, with particular reference
to Rule 9, and the provisions of the Limitation Act are applied
to the entertainment of such an application, all these
provisions have to be given their true and correct meaning and
must be applied wherever called for. If we accept the
contention of the Learned Counsel appearing for the applicant
that the Court should take a very liberal approach and
interpret these provisions (Order 22 Rule 9 of the CPC
and Section 5 of the Limitation Act) in such a manner and so
liberally, irrespective of the period of delay, it would amount
to practically rendering all these provisions redundant and
inoperative. Such approach or interpretation would hardly be
permissible in law.
34. Liberal construction of the expression `sufficient cause'
is intended to advance substantial justice which itself
presupposes no negligence or inaction on the part of the
applicant, to whom want of bona fide is imputable. There can
be instances where the Court should condone the delay;
equally there would be cases where the Court must exercise
its discretion against the applicant for want of any of these
ingredients or where it does not reflect `sufficient cause' as
understood in law. [Advanced Law Lexicon, P. Ramanatha
Aiyar, 2nd Edition, 1997]
35. The expression `sufficient cause' implies the presence
of legal and adequate reasons. The word `sufficient' means
adequate enough, as much as may be necessary to answer the
purpose intended. It embraces no more than that which
provides a plentitude which, when done, suffices to
accomplish the purpose intended in the light of existing
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circumstances and when viewed from the reasonable standard
of practical and cautious men. The sufficient cause should be
such as it would persuade the Court, in exercise of its judicial
discretion, to treat the delay as an excusable one. These
provisions give the Courts enough power and discretion to
apply a law in a meaningful manner, while assuring that the
purpose of enacting such a law does not stand frustrated.
36. We find it unnecessary to discuss the instances which
would fall under either of these classes of cases. The party
should show that besides acting bona fide, it had taken all
possible steps within its power and control and had
approached the Court without any unnecessary delay. The test
is whether or not a cause is sufficient to see whether it could
have been avoided by the party by the exercise of due care
and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar,
3rd Edition, 2005]
37. *****
(i) The words "sufficient cause for not making the
application within the period of limitation" should be
understood and applied in a reasonable, pragmatic,
practical and liberal manner, depending upon the facts
and circumstances of the case, and the type of case.
The words `sufficient cause' in Section 5 of the
Limitation Act should receive a liberal construction so
as to advance substantial justice, when the delay is not
on account of any dilatory tactics, want of bona fides,
deliberate inaction or negligence on the part of the
appellant."
(ii) In considering the reasons for condonation of
delay, the courts are more liberal with reference to
applications for setting aside abatement, than other
cases. While the court will have to keep in view that a
valuable right accrues to the legal representatives of
the deceased respondent when the appeal abates, it will
not punish an appellant with foreclosure of the appeal,
for unintended lapses. The courts tend to set aside
abatement and decided the matter on merits. The courts
tend to set aside abatement and decide the matter on
merits, rather than terminate the appeal on the ground
of abatement.
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(iii) The decisive factor in condonation of delay, is
not the length of delay, but sufficiency of a satisfactory
explanation.‖
70. Similarly, dealing with the condonation of delay in filing an
application seeking setting aside of abatement of appeal, on the
ground of death of the appellant during the proceedings, Ram
Charan13 holds, in paras 8 and 13 of the report, thus:
―8. There is no question of construing the expression
"sufficient cause" liberally either because the party in default
is the Government or because the question arises in
connection with the impleading of the legal representatives of
the deceased respondent. The provisions of the Code are with
a view to advance the cause of justice. Of course, the court, in
considering whether the appellant has established sufficient
cause for his not continuing the suit in time or for not
applying for the setting aside of the abatement within time,
need not be over-strict in expecting such proof of the
suggested cause as it would accept for holding certain fact
established, both because the question does not relate to the
merits of the dispute between the parties and because if the
abatement is set aside, the merits of the dispute can be
determined while, if the abatement is not set aside, the
appellant is deprived of his proving his claim on account of
his culpable negligence or lack of vigilance. This, however,
does not mean that the court should readily accept whatever
the appellant alleges to explain away his default. It has to
scrutinize it and would be fully justified in considering the
merits of the evidence led to establish the cause for the
appellant's default in applying within time for the impleading
of the legal representatives of the deceased or for setting aside
the abatement.
*****
13. It will serve no useful purpose to refer to the cases
relied on for the appellant in support of its contention that the
appellant's ignorance of the death of the respondent is
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sufficient cause for allowing its application for the setting
aside of the abatement and that in any case it would be
sufficient cause if its ignorance had not been due to its
culpable negligence or mala fides. We have shown above that
the mere statement that the appellant was ignorant of the
death of the respondent, cannot be sufficient and that it is for
the appellant, in the first instance, to allege why he did not
know of the death of the respondent earlier or why he could
not know about it despite his efforts, if he had made any
efforts on having some cause to apprehend that the respondent
might have died. The correctness of his reasons can be
challenged by the other party. The court will then decide how
far those reasons have been established and suffice to hold
that the appellant had sufficient cause for not making an
application to bring the legal representatives of the deceased
respondent earlier on the record.‖
71. Clear and cogent reasons are, therefore, required to be adduced
by the applicant who files a belated application for setting aside
abatement of a suit or proceeding which has abated by operation of
law, for condonation of the delay in filing the application. Where such
delay is unconscionable or inordinate, as in the present case, this
responsibility stands augmented.
72. Authorities, on this point, are numerous.
73. Recently, in Majji Sannemma v Reddy Sridevi24, the Supreme
Court held thus:
―17. In the caseof Ramlal, Motilal and
Chhotelal v. Rewa Coalfields Ltd. , it is observed and
held as under:-
2021 SCC OnLine SC 1260
(1962) 2 SCR 762
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In construing s. 5 it is relevant to bear in mind two
important considerations. The first consideration is that
the expiration of the period of limitation prescribed for
making an appeal gives rise to a right in favour of the
decree-holder to treat the decree as binding between
the parties. In other words, when the period of
limitation prescribed has expired the decree-holder has
obtained a benefit under the law of limitation to treat
the decree as beyond challenge, and this legal right
which has accrued to the decree-holder by lapse of
time should not be light-heartedly disturbed. The other
consideration which cannot be ignored is that if
sufficient cause for excusing delay is shown discretion
is given to the Court to condone delay and admit the
appeal. This discretion has been deliberately conferred
on the Court in order that judicial power and discretion
in that behalf should be exercised to advance
substantial justice. As has been observed by the
Madras High Court in Krishna v. Chattappan26, ―s. 5
gives the Court a discretion which in respect of
jurisdiction is to be exercised in the way in which
judicial power and discretion ought to be exercised
upon principles which are well understood; the words
‗sufficient cause' receiving a liberal construction so as
to advance substantial justice when no negligence nor
inaction nor want of bona fide is imputable to the
appellant.‖
18. In the case of P.K. Ramachandran v. State of
Kerala27, while refusing to condone the delay of 565 days, it
is observed that in the absence of reasonable, satisfactory or
even appropriate explanation for seeking condonation of
delay, the same is not to be condoned lightly. It is further
observed that the law of limitation may harshly affect a
particular party but it has to be applied with all its rigour
when the statute so prescribes and the courts have no power
to extend the period of limitation on equitable grounds. It is
further observed that while exercising discretion for
condoning the delay, the court has to exercise discretion
judiciously.
(1890) J.L.R. 13 Mad. 269
(1997) 7 SCC 556
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19. In the case of Pundlik Jalam Patil v. Executive
Engineer, Jalgaon Medium Project28, it is observed as
under:--
―The laws of limitation are founded on public policy.
Statutes of limitation are sometimes described as
―statutes of peace‖. An unlimited and perpetual threat
of limitation creates insecurity and uncertainty; some
kind of limitation is essential for public order. The
principle is based on the maxim ―interest reipublicae
ut sit finis litium‖, that is, the interest of the State
requires that there should be end to litigation but at the
same time laws of limitation are a means to ensure
private justice suppressing fraud and perjury,
quickening diligence and preventing oppression. The
object for fixing time-limit for litigation is based on
public policy fixing a lifespan for legal remedy for the
purpose of general welfare. They are meant to see that
the parties do not resort to dilatory tactics but avail
their legal remedies promptly. Salmond in his
Jurisprudence states that the laws come to the
assistance of the vigilant and not of the sleepy.‖
20. In the case of Basawaraj v. Special Land Acquisition
Officer.29, it is observed and held by this Court that the
discretion to condone the delay has to be exercised
judiciously based on facts and circumstances of each case. It
is further observed that the expression ―sufficient cause‖
cannot be liberally interpreted if negligence, inaction or lack
of bona fides is attributed to the party. It is further observed
that even though limitation may harshly affect rights of a
party but 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 condonation 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
(2008) 17 SCC 448
(2013) 14 SCC 81
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that would amount to violation of statutory principles and
showing utter disregard to legislature.
21. In the case of Pundlik Jalam Patil28, it is observed by
this Court 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‖.
At the same time, in State of M.P. v S.S. Akolkar30 and Perumon
Bhagawathy Devaswom v. Bhargavi Amma31, it has been held that, in
assessing whether delay in filing the application for condonation of
delay in moving for substitution of legal representatives or for setting
aside abatement of the proceedings, the Court should be liberal, rather
than unduly strict.
74. It appears, therefore, that, in dealing with applications under
Order XXII Rule 3 for substitution of legal heirs, or under Order XXII
Rule 9 for setting aside abatement of proceedings, the Court has to
strike a balance. The delay, any which way, has to be satisfactory
explained. In assessing the sufficiency of the explanation as cause for
the delay, however, the Court has to be liberal and expansive in its
approach, and to proceed ex debito justitiae. The fact that, by
abatement of the proceedings, a legal right has enured in favour of the
opposite party, can be a delimiting factor only to a restricted extent,
and no more.
75. Viewed any which way, however, it cannot be said that the
(1996) 2 SCC 568
(2008) 8 SCC 321
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averments contained in IA 19644/2019 sufficiently explained the
delay of 607 days in preferring the application. They do not even
meet the threshold requirement which the application seeking
condonation of delay was required to meet. Howsoever expansive a
view the Court may adopt, and with greatest respect to the learned
NCDRC which has held otherwise, I am unable to convince myself
that, even applying the most liberal of standards, the assertions in IA
19644/2019 can be said to have sufficiently explained the delay of 607
days in filing IA18591/2019.
76. Para 8 of the impugned order dated 18th April, 2019, passed by
the learned NCDRC, which contains the entire reasoning for
condoning the delay of 607 days in filing IA 18591/2019, reads thus:
―8. For the reasons stated in IA No. 19644/2019, the delay
in filing the IA No. 18591/2019, i e., Application for bringing
on record the LRs of Complainant No.1, is condoned and the
IA No. 18591/2019 is treated to have been filed within time.‖
77. With greatest respect, I am of the considered opinion that para
8 of the impugned order dated 18th April, 2019 cannot be regarded as
sufficient to justify condonation of the delay of 607 days in filing IA
18591/2019. It appears that the learned NCDRC, in its undoubtedly
well-intentioned anxiousness to ensure that the right of the
respondents was not frustrated merely on the ground of delay in filing
IA 18591/2019, chose to show leniency while dealing with the prayer
for condonation of delay.
78. On principle, the approach of the learned NCDRC cannot be
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faulted, especially given the fact that the case involves the hard earned
money of investors who claim to have been victims of unfair trade
practices adopted by the petitioner. Where the puny citizen is pitted,
before the Court, against a mammoth corporate entity, no court can be
faulted for leaning in favour of the citizen, where the question of
sacrificing the right of the citizen to assert his legal remedies, against
the corporate entity who is alleged to have breached the contract with
the citizen, is concerned. Of course, whether such breach did, or did
not take place, would have to dispassionately decided by the forum
before which the cause is brought. The right to bring the cause is,
however, a valuable right, and the Court would be clearly justified in
straining every sinew in ensuring that the right of the citizen, to urge
and prosecute his legal remedies, is not lost. What weighs in the
balance is access to justice, which cannot be compromised at any cost.
79. While the decision of the learned NCDRC to condone the delay
of 607 days in filing IA 18591/2019, as contained in para 8 of the
impugned order dated 18th April, 2022 cannot, therefore, be upheld, as
it is effectively non-speaking in nature, and the assertions in IA
18591/2019 do not, as they read and by themselves, make out a case
for condoning the delay, I deem it appropriate to request the learned
NCDRC to reconsider the prayer for condonation of delay, if
necessary after seeking additional, better or material particulars from
the respondents.
80. This liberty is, needless to say, is not to be construed as any
kind of opinion, by this Court, even tentative, to the effect that the
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delay of 607 days deserves to be condoned. While considering the
application the learned NCDRC is required to bear in mind all relevant
considerations, including (i) the extent of delay, (ii) the necessity for a
proper explanation for the delay, as it effectively seeks setting aside of
the abatement of the complaint, given the law expounded in Ram
Charan13 and Balwant Singh12, and (iii) the sufficiency of the cause
made out by the respondents for condoning the delay. It is reiterated
that, in so deciding, should the learned NCDRC deem it appropriate to
call for further details from the respondents, explaining the delay in
filing IA 18591/2019, it would be at liberty to do so.
Conclusion
81. For the aforesaid reasons, the impugned order dated 18th April,
2022, passed by the learned NCDRC in IA 18591/2019 and IA
19644/2019, is quashed and set aside only on the ground that the order
does not make out a sufficient case to condone the delay of 607 days
in filing IA 18591/2019. In case the delay is found condonable, both
IA 18591/2019 and IA 19644/2019 would stand allowed. For this
purpose, the learned NCDRC is requested to re-consider the plea of
the respondents for condoning the delay in filing IA 18591/2019 and,
therefore, to decide IA 19644/2019 de novo and afresh. If, in order to
do so, the learned NCDRC deems it appropriate to call for further,
better or material particulars or details from the respondents,
explaining the delay of 607 days in filing IA 18591/2019, it shall be at
liberty to do so.
82. This Court does not express any opinion on whether the delay in
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filing IA 18591/2019 deserves to be condoned. The learned NCDRC
is requested to take a view in the matter in accordance with the facts
and the law, after hearing the parties and following the principles of
fair play and natural justice. In doing so, the learned NCDRC would
not be influenced by any observations contained in this judgment.
83. The present petition stands allowed to the aforesaid limited
extent, with no orders as to costs. Pending applications, if any, stand
disposed of accordingly.
C.HARI SHANKAR, J
JULY 11, 2022
r.bararia/dsn/kr
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