Abhishek Kumar vs Shambhu Nath Prasad
2021 Latest Caselaw 1004 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         C.M.P. No. 310 of 2019
            1.   Abhishek Kumar.
            2.   Sumit Kumar.
            3.   Sweta Kumari.
            4.   Chanda Devi.                                   ...       ...        ...Petitioners
                                      -Versus-
            Shambhu Nath Prasad.             ...      ...   ...Opp. Party
                            ------------

CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK

For the Petitioners : Mr. Manjul Prasad, Sr. Advocate.

            For the Opp. Party               : Mr. Mahesh Tewari, Advocate.
                                             : Mr. Amar Kumar Sinha, Advocate.
                               ------------
12/ 01.03.2021           The instant C.M.P. has been filed for recalling the order dated 12.04.2019

            passed in F.A.No.179 of 2015.

2. The sole appellant namely Mathura Prasad since deceased filed First

Appeal No. 179/2015 before this Court against the judgment and decree dated

13.08.2015 and 17.08.2015 respectively passed by Senior Civil Judge, VI, Ranchi in

Original Suit No. 320 of 2010.

3. The appeal was admitted vide order dated 03.05.2016 and further

proceeding in Execution Case No. 104/2015 was stayed and the case was fixed for

hearing on 20.06.2016.

4. Several adjournments were sought for by the appellant. The sole

appellant namely Mathura Prasad died on 18.09.2018 during the pendency of the

above appeal and this Court on the prayer made by Counsel for the appellant granted

time for taking steps for substitution of the name of legal heirs of the deceased-sole

appellant Mathura Prasad and the case was fixed for hearing on 18.01.2019.

5. Again on 18.01.2019 on the prayer made by the Counsel appearing for

the appellant the case was adjourned to be listed after three weeks. No petition was

filed by the appellant for substitution of the names of the legal heirs/representative of

the deceased-appellant despite several adjournments granted by this Court. In absence

of any substitution petition or any petition for setting aside the abatement and

condoning the delay the appeal was dismissed as abated on 12.04.2019.

6. After dismissal of the appeal, this C.M.P. has been filed by the appellant

on 29.04.2019 after delay of about more than 200 days.

7. Mr. Manjul Prasad, learned Sr. Counsel assisted by Mr. Arbind Kumar

Sinha vociferously argues that petitioners are very poor and illiterate persons and

having no knowledge about the status of the First Appeal and on threat to vacate the

premises, enquired about current status of their case and came to know about the

dismissal of the First Appeal as abated.

8. Mr. Prasad, further argues that there is delay of 122 days in filing the

petition for substitution of legal heirs/representative of deceased-sole appellant and if

the order dated 12.04.2019 is not recalled and the instant First Appeal is not restored

after setting aside the abatement, the petitioners shall suffer irreparable loss and injury.

9. To strengthen his argument, learned Sr. Counsel places heavy reliance

on the following judgments:

i. AIR 1983 SC 676 ii. AIR 1983 SC 355 iii. AIR 2016 (1) SCC 607

10. On the other hand, Mr. Mahesh Tewari and Mr. Amar Kumar Sinha,

learned Counsel appearing for the respondents vehemently opposes the contention of

Mr. Manjul Prasad and emphatically argued that there is no illegality or infirmity in

the order dated 12.04.2019 passed by this Court. Learned Counsel argued that in

absence of any petition for substitution and for condoning the delay, there was no any

option for the Court than to dismiss the appeal as the same had abated.

11. Mr. Amar Kumar Sinha, learned Counsel for the Opp. Parties further

argues that this C.M.P. was filed on 29.04.2019 after delay of about more than 200

days and no sufficient cause has been shown for condoning such a long delay and

delay has not been properly explained and valuable right has accrued to the Opp.

Parties as per order 22 Rule 32 of the Code of Civil Procedure.

12. Mr. Sinha further argues that judgments relied upon by Mr. Manjul

Prasad is not attracted in the instant case and as such not applicable.

13. To buttress his argument Mr. Amar Kumar Sinha relies on the following

judgment:

                   i.     AIR 1983 SC 676
                  ii.     AIR 1983 SC 355

14. After hearing the Counsels for the parties, this Court is of the

considered view that the instant C.M.P. application needs consideration for the

following facts and reasons:

The appellants are rustic and illiterate villagers and in absence of

anything to show that the delay was mala fide, intentional or any

dilatory tactics were adopted, the same should have been condoned

and abatement set aside as the expression "sufficient cause" should

receive a liberal construction so as to advance substantial justice when

no negligence or inaction or want of bona fide is imputable to a party.

15. The said issue fell for consideration before the Hon'ble Apex Court in case of

"Ram Nath Sao vrs. Gobardhan Sao", reported in (2002) 3 SCC 195. The Hon'ble

Apex Court has clearly observed in paragraph No.7 which is quoted below:

" The expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963 (hereinafter referred to as "the Act), Order 22 Rule 9 of the Code of Civil Procedure (hereinafter referred to as "the Code") as well as similar other provisions and the ambit of exercise of powers thereunder have been the subject-matter of consideration before this Court on numerous occasions. In the case of State of W.B. v. Administrator, Howrah Municipality 1 while considering scope of the expression "sufficient cause" within the meaning of Section 5 of the Act, this Court laid down that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.

Further in case of "Sital Prasad Saxena v. Union of India" 2, reported in (1985) 1 SCC 163 the Court was dealing with a case where in a second appeal, the appellant died and application for substitution after

condonation of delay and setting aside abatement filed after two years by the heirs and legal representatives was rejected on the ground that no sufficient cause was shown and the appeal was held to have abated. When the matter was brought to Court, the appeal was allowed, delay in filing the petition for setting aside the abatement was condoned, abatement was set aside, prayer for substitution was granted and the High Court was directed to dispose of the appeal on merits and while doing so, it was observed that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing inasmuch as in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party. It was further observed (at SCC p. 166, para 6) that courts should recall that " what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties".

"In the case of "Rama Ravalu Gavade v. Sataba Gavadu Gavade, reported in (1997) 1 SCC 261 during the pendency of the appeal, one of the parties died. In that case, the High Court had refused to condone the delay in making an application for setting aside abatement and set aside abatement, but this Court condoned the delay, set aside abatement and directed the appellate court to dispose of appeal on merit observing that the High Court was not right in refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer."

In the case of "N. Balakrishnan v. M. Krishnamurthy", reported in (1998) 7 SCC 123 there was a delay of 883 days in filing application for setting aside ex parte decree for which application for condonation of delay was filed. The trial court having found that sufficient cause was made out for condonation of delay, condoned the delay but when the matter was taken to the High Court of judicature at Madras in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial court was not justified in condoning the delay resulting in reversal of its order whereupon Court was not justified in interfering with the order passed by the trial court whereby delay in filing the application for setting aside ex parte decree was condoned and accordingly order of the High Court was set aside. K.T. Thomas, J., speaking for the Court succinctly laid down the law observing thus in paras 8, 9 and 10: (SCC p. 127).

The Court further observed in paragraphs 11,12 and 13 which run thus:

"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 for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the

courts. So a lifespan must be fixed for each remedy. 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 ut sit finis litium" (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.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words 'sufficient cause' under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari 5 and State of W.B. v. Administrator, Howrah Municipality 1.

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 to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay as occasioned by the party deliberately to gain time, then 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."

16. The Apex Court was of the opinion that "sufficient cause" within the

meaning of Section 5 of the Act of Order 22 Rule 9 of the Code or any other similar

provisions should receive a liberal construction so as to advance substantial justice

when no negligence or inaction or want of bona fide is imputable to a party.

17. The Hon'ble Apex Court in case of "Banwari Lal (Dead) by legal

representatives & Anr. Vrs. Balbir Singh, reported in (2016) 1 SCC 607 has held as

under:

"10. In Sital Prasad Saxena v. Union of India 7, it was observed that the rules of procedure under Order 22 CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order 1 cannot be sustained."

18. The judgment cited relied upon by the learned Counsel for the Opp. Parties

do not apply in the instant case as in those cases delay was of more than 2 years, 3

years and even 10 years and as such the same was not condoned. However, in the

instant case the delay is only of 122 days and it was not intentional or deliberate rather

due to the standing position that the appellants were illiterate and rustic villagers and

were not informed of the order of this Court.

19. In view of the aforementioned facts and reasons assigned, I hereby recall

the order dated 12.4.2019 passed in F.A. No. 179 of 2015 and consequently condone

the delay of 122 days in filing the substitution petition and also allow the legal

representatives, as mentioned in paragraph No.4 of the C.M.P. application, to be

substituted in place of sole appellant namely Mathura Prasad.

20. After setting aside the abatement and after condoning the delay of 122 days,

this C.M.P. is allowed and F.A. No. 179 of 2015 is restored to its original file with

cost of Rs. 2500/- to be deposited in the Advocates' Association Welfare Fund.

21. Pending I.A.s, if any, stand disposed of.

[Dr. S.N.Pathak,J.] P.K.S.