Jharkhand High Court
Mohammad Nasim (Died) vs Bibi Hasina Khatoon on 22 April, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:11896
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 237 of 2012
1. Mohammad Nasim (died)
2. Md. Shamim (died)
Both sons of Late Gauhar Ali
3. Hasmat Ara, W/o Md. Imran
4. Md Shalauddin, S/o Md. Salim, R/o Kalaltoli, P.S. Lower Bazar,
District- Ranchi
5. (a) Shahid Shamim
(b) Sajid Shamim
(c) Aamir Shamim
(d) Aatif Shamim
(e) Shaheeda Naaz
(f) Tasifa Naaz
6. Shahinaz Parveen, D/o Late Gauhar Ali
7. Sultana, D/o Late Gauhar Ali
8. Md. Rizwan, S/o Late Gauhar Ali
9. Anwar Azam, S/o Late Gauhar Ali
Appellant Nos. 1, 2, 6, 7, 8 and 9 are residents of Kalal Toli P.S.
Lower Bazar, P.O. Church Road, District- Ranchi
Appellant Nos. 3 and 5 are resident of Simdega Police Station, P.O.
and District Simdega then District-Ranchi
10. Ahmed Hussain, S/o Late Mahboob Hassan
11. Aziz Ahmed, S/o Late Mahboob Hassan
12. Israt, D/o Late Mahboob Hassan
Appellant Nos. 10, 11 and 12 are residents of Main Road Near
Gauhar Ali Store, P.S. Kotwali, P.O. GPO, District-Ranchi
13. Ahmadi Khatoon, D/o Late Mahboob Hassan and W/o Khalik
Ahmad, Gumla at P.O. and P.S. Gumla
14. Asma Khatoon, W/o Jasiuzama, P.O., P.S. and District-Jashpur,
Chhattisgarh
15. Died
15(a) Md. Faizan S/o Muzaffar Alam
15(b) Md. Faisal S/o Muzaffar Alam
15(c) Sharba Zabeen, D/o Muzaffar Alam
15(d) Nishat Yasmeen D/o Muzaffar Alam
(Substituted by I.A. No. 4071 of 2021)
16. Samsul Haque, R/o Indra Market, P.S. Lower Bazar, P.O. Church
Road, District-Ranchi
17. SK. Ajmul Haque, S/o Late Abdul Manan
18. Sakina Khatoon, D/o Late Abdul Manan
19. Shakura Khatoon, D/o Late Abdul Manan
20. Shafura Khatoon, D/o Late Abdul Manan
21. Kobera Khatoon, D/o Late Abdul Manan
22. Sahitan Bibi, W/o Late Abdul Manan
Sl. No. 17 to 22 are the residents of Nawabpur, P.O. Kistorampur,
P.S. Chanditila, District-Hugly, West Bengal, at present Main Road
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Near Gauhar Ali Store, P.S. Kotwali, P.O. GPO, District-Ranchi
23. Most. Zakia Khatoon, Widow of Fazilat Hussain
24. Gulam Hussain, S/o Fazilat Hussain
25. Feda Hussain, S/o Fazilat Hussain
Appellant Nos. 23 to 25 are residents of Main Road Near Gauhar
Ali Store, P.S. Kotwali, P.O. GPO, District-Ranchi
26. Mazda Khatoon, W/o Shafi Ahmad, D/o Fazilat Hussain
27. Sadia Khatoon, W/o Usman Khan, D/o Fazilat Hussain
28. Zarina Khatoon, W/o Azim Khan, D/o Fazilat Hussain
29. Hasina Khatoon, W/o Mustaque Khan, D/o Fazilat Hussain
Appellant Nos. 26 to 29 are residents of Azad Basti, Ranchi P.O.
Church Road, P.S. Lower Bazar, District-Ranchi at present Main
Road Near New Gauhar Ali Store, P.O. GPO, P.S. Kotwali, District-
Ranchi
30. Smt. Niasabala Ghosh, Widow of Late Amarchand Ghosh
31. Krishna Ghosh
32. Chanchala Ghosh
33. Mithu Ghosh
34. Lakhikand Ghosh
35. Ram Prasad Ghosh
36. Haridas Ghosh
Appellant Nos. 30 to 36 are residents of Sripati Apartment 2 B, Old
Commissioner's, P.O. Old Commissioner Compound P.S. Daily
Market, District-Ranchi
.... .... Appellants
Versus
1. Bibi Hasina Khatoon, W/o Md. Sarfuddin, R/o Rajgaonpur, P.O.
Rajgaon, P.S. and District Rajgaon, Orissa
2. Died
2(a). Died
2(b). Imteyaz Ahmad, S/o Mustaque Ahmad
2(c). Neyaz Ahmad, S/o Mustaque Ahmad
2(d). Ishteaque Ahmad, S/o Mustaque Ahmad
2(e). Tahzeen Shahwar, S/o Mustaque Ahmad
2(f). Shahzeen Eram, S/o Mustaque Ahmad
2(g). Zahbee Sadqua, S/o Mustaque Ahmad
All R/o Tiwari Tank Road, Gulmohar Street A, Hindpiri, PO & PS
Hindpiri, District Ranchi
3. Hamid Hussain, S/o Abdul Wahab, R/o Near Masjid-E-Quasim,
Mohalla-Kalal Toli, P.O. and P.S. Lower Bazar, District-Ranchi
4. Maisra Khatoon, D/o Abdul Wahab, W/o Md. Ali Hussain at Gain
Sul Bigha, Gaya Now at Golbigha, P.O. GPO, P.S. Civil Line, Gaya,
District-Gaya
5. Qaisar Jahan, D/o Abdul Wahab and W/o Jamil Ahmad at Karim
Bux Lane, Calcutta
6. Naushaba Praveen, D/o Abdul Wahab and W/o Sohail Akhtar at Old
Station Road, P.O. & P.S. Plant Site, Rourkela, District-Sundergarh,
Orissa
2
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7. Nikhat Praveen, D/o Abdul Wahab and W/o Md. Hasnain Near
Muslim Hotel Minijam, Dumka
8. Mahboob Alam, (died) I.A. rejected
9. Badruddoja, (died) I.A. rejected
Respondent Nos. 9 and 10 are residents of Kalisthan Road, P.O.
Church Road, P.S. Lower Bazar, District-Ranchi
10. Tahira Khatoon, W/o Manzoor Alam, (died) I.A. rejected
11. Bilquis Khatoon, D/o Late Manzar Alam
12. Rehana Khatoon, D/o Late Manzar Alam
13. Sultana Khatoon, D/o Late Manzar Alam
14. Mafisa Khatoon, D/o Late Manzar Alam
15. Shoib Alam, S/o Late Manzar Alam
Respondent Nos. 11 to 16 are residents of Kalisthan Road, P.O.
Church Road, P.S. Lower Bazar, District-Ranchi
16. Md. Kalim
17. Md. Aslam
18. Zuber Eqbal
19. Sahnawaj Akhtar
Respondent Nos. 17 to 20 are sons of Md. Qaim
20. Saheha Khatoon, (died) I.A. rejected
21. Zeba Khatoon, (died) I.A. rejected
22. Zahida Khatoon
23. Sajda Khatoon
Respondent Nos. 21 to 24 are daughters of Late Md. Quaim, all
residents of B.K. Lane Kala Toli, P.S. Lower Bazar, P.O. Church
Road, District-Ranchi
24. Mokida Khatoon, Widow of Late Md. Shamim
25. Md. Anas, S/o Late Md. Shamim
26. Oyesh Ahmad, S/o Late Md. Shamim
27. Md. Ashad, S/o Late Md. Shamim
28. Sonu, S/o Late Md. Shamim
29. Kausar Fatima, W/o Jamiruddin, Married daughter of Late Md.
Shamim
30. Rahat Fatima, D/o Late Md. Shamim
Respondent Nos. 25 to 31 are residents of Golkothi, Konka, Katal
Toli, P.S. Lower Bazar, P.O. Church Road, District-Ranchi
... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Dr. Hasnain Waris, Advocate
Md Modabbir Hussain, Advocate
Ms. Reshma Kumari, Advocate
For the Respondents : Mr. Shresth Gautam, Advocate
Mr. Rahul Anand, Advocate
Mr. Himanshu Harsh, Advocate
------
C.A.V on 07.04.2025 Pronounced on 22.04.2025
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Heard, learned counsel for the parties.
1. This appeal is under Order XLIII Rule 1(k) of CPC against the order
dated 29.08.2012 by which the petition dated 11.06.2012 passed in
T.A No.36 of 1976/52 of 1977 for substitution of Appellant No.1-
Mohammad Nasim who died some times in the year 2000, probably
on 20.03.2000, Appellant No.1(a)/2 Md Shamim in SA No.20 of
1979(R) who died after remand (date or year not mentioned) and
deletion of the name of Appellant No. 1(d)- Bibi Yatiman who died
in the year 2012 has been rejected.
By the same order petition dated 21.07.2012 for substitution
Bibi Hasina Khatoon (R1) and for addition of names of heirs of
Appellant No.4 Abdul Manan and Respondent No.3 already
substituted in S.A No.20/1979(R) has been rejected.
2. T.A. 36 of 1976/52 of 1977 was dismissed on the ground that it had
abated due to death of all the Plaintiffs/Respondents No.1, 2 and 3 as
well as due to death of other three appellants and six respondents
about whom no prayer for substitution was made.
3. In order to put the things in proper perspective, the list of dates of the
life cycle of the present case spanning six dates is being set out
hereunder:
I. Title Suit No.64 of 1966/64 of 1974 was preferred by
three plaintiffs against nine defendants for ejectment
from the suit premises and to deliver the suit premises
thereof.
II. Eviction suit decreed on 02.03.1976 by 2nd Addl Sub-
Judge, Ranchi.
III. T.A No. 36 of 1976/52 of 1977 against the said judgment
preferred by the defendants dismissed vide Judgment and
Decree dated 19.12.1978 and the eviction decree
affirmed.
IV. Defendant Nos. 2, 3, 4, 6 & 7 corresponding to Appellant
Nos. 1 to 5 prefer S.A. No. 20/1979 (R).
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V. S.A. No. 20/1979 (R) was disposed of vide judgment
dated 08.09.1995, setting aside the Judgment and the
matter was remanded to the Judicial Commissioner,
Ranchi to decide it afresh within six months after giving
opportunity to the appellants to lead evidence. Parties
were directed to appear before the Court of Judicial
Commissioner, Ranchi on 28.09.1995.
VI. Order dated 19.07.2007 passed in T.A 36 of 1976 after
remand, was the first order-sheet available as per the
impugned order dated 29.08.2012. The first order sheet
was drawn on a petition filed by the
Plaintiffs/Respondents.
VII. Appellants/Defendants were not taking interest in the
appeal hence notices were issued to them from which it
transpired as per service report twelve of them had died.
They also raised objection to the reconstruction of record
by filing a petition dated 13.06.2012.
4. Petition dated 11.06.2012 was filed under Order 22 Rule 3 and Rule 9
and a separate petition was filed under Section 5 of the Limitation
Act. This petition was filed for the following:
I. Substitution of Md Naseem and Md Shamim Appellant
Nos.1 & 1(a) respectively died after the remand of the
appeal. Md Naseem died probably on 20.03.2000 and no
date for the death of Md Shamim is given.
II. Deletion of Appellant No.1(d) Bibi Yatiman who died in
2012.
III. Ground for condonation of delay in substitution petition
dated 11.06.2012 filed under Section 5 of the Limitation
Act is that appellant came to know about the pendency of
appeal on 25.05.2012.
5. Petition dated 21.07.2012 was filed on behalf of the appellants under
Order 22 Rule-3, 4 and 9 r/w Section 151 of CPC for the below
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mentioned relief, but no condonation application was filed under
Section 5 of the Limitation Act:
I. Addition of the substituted Legal Representatives of
Appellant No.4 Abdul Manan, who died sometimes in
October 1994, during the pendency of second appeal and
substitution petition was filed, and to the best of
knowledge of the appellants, the same was allowed.
II. Addition of the already substituted heirs of Respondent
No. 3 in second appeal. Bibi Mazida Khatoon (R-2) of
the said Second Appeal died on 03.10.1988 leaving
behind her heirs Bibi Hasina Khaton (R-1) and Bibi
Maimuna Khatoon (R-3) respectively. Respondent no. 3
also died on the same day i.e. 03.10.1988 leaving behind
eight heirs who were substituted in the second appeal to
the best of knowledge of the appellants.
III. Substitution of Bibi Hasina Khatoon (R-1) who died on
9th June 2011 and the appellants came to know about it
from the informatory petition filed by the respondents
dated 11.06.2012.
IV. Appellant Anwar Azam appeared in appeal on
21.07.2012 and other appellants namely Samsul Haque
and Ajamul Haque and they came to know about the
death of Hasina Khatoon on 11.06.2012. Delay in filing
application for substitution was on account of ignorance
of the death of Hasina Khatoon.
6. Learned 1st Appellate Court dismissed the application for substitution
and addition on the following grounds:
I. Exact dates of death of the deceased Appellants Nos.1,
1(d) and 1(a) has not been disclosed.
II. There is no prayer for condonation of delay under
Section 5 of the Limitation Act in petition dated
21.07.2012.
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III. No steps were taken for substitution of Appellant no.4
and Plaintiff/Respondent Nos. 2 & 3.
IV. As per the service report, total seven appellants and nine
respondents had died. No step was taken for the
substitution of 1. Mumtaz Begum, 2. Maulana
Nizamuddin, 3. Most. Jakia Khatoon, Respondent Nos.4,
4(a), 4(b) and 5, 6 and 7 namely, Hafiz Safaiyat Hussain,
Manzar Alam, Mahboob Alam, Amar Chand Ghosh, Md.
Quaim and Md. Shamim respectively.
V. After the case was remanded by the Patna High Court in
S.A. No. 20 of 1979-R there was a specific direction to
both the parties to appear before the learned Judicial
Commissioner, Ranchi on 28.09.1995 but the appellants
except Anwar Azam did not choose to appear before the
said Court.
VI. Anwar Azam was Appellant No. 1(i) in the second appeal
who was made party in the first appeal and in his
presence first appeal and second appeal had been
decided. Therefore, he could not have feigned ignorance
about order of remand passed by the High Court and the
plea that he was unaware about the death of the
contesting Respondents Nos. 2 and 3 on 03.10.1988 was
not also available to him.
VII. Appellants were deliberately and knowingly avoiding to
appear in the appeal and were trying to linger the eviction
matter.
VIII. Both Petitions were hopelessly barred by limitation and
appeal had abated on death of contesting respondent no.1
on 09.06.2011 and 2 and 3 on 03.10.1988.
IX. Only Appellant No.1(i) had appeared after the order of
remand, but none of the other appellants appeared in
compliance to the order of remand for appearing before
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the 1st Appellate Court on 28.09.1995.
X. There was no separate prayer for condonation of delay
under Section 5 of the Limitation Act in respect to prayer
made in petition dated 21.07.2012 and there was no
document to show that the substitution of Appellant No.
4 and Respondents Nos. 2 and 3 was done in the second
appeal.
Argument on behalf of appellants
7. It is argued by learned counsel for the appellants that appellant-Anwar
Azam was minor during pendency of the second appeal when the
remand order was made which will be evident from the cause title of
the second appeal. Therefore, he cannot be held responsible for not
appearing before the 1st Appellate Court in compliance to the order of
remand. Further, 1st Appellate Court erred in holding that the parties,
stated in the petition dated 21.07.2012 had not been substituted before
the High Court in second appeal.
8. Heirs of Plaintiffs/Respondent No.2 were already on record in second
appeal, and that of Respondent No.3 was substituted, as would be
evident from Order No. 46 dated 31.01.1989.
9. Appellant after coming to know on 11.06.2012 regarding death of
Plaintiff No.1/Respondent No.1 on 09.06.2011 filed the substitution
petition on 21.07.2012. Prayer was also made in the same petition for
addition of Appellant No.4 and Respondent No.3 being substituted in
S.A. No.20 of 1979 (R). The heirs and legal representatives of
Plaintiff Nos. 1 to 3/Respondent Nos.1 to 3 also filed substitution
petition on 5th June 2012.
10. Legal representatives of Appellant No.3 Maulana Nizamuddin, who
died on 16.03.1979, had already been substituted vide Order No.11
dated 12.03.1980 in S.A. No.20/1979(R). Legal representatives of
Appellant No.4 Abdul Manan, who died in the month of October,
1994, were substituted in S.A No.20/1979(R). Legal representatives of
Respondent No.5 Amar Chand Ghose who died on 03.08.1970 was
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substituted in second appeal vide order dated 18.05.1982. Respondent
No.4 Hafiz Safaiiyat Hussain was substituted vide order dated
14.11.1980 in Second Appeal. Appellant No.5 Fazilat Hussain was
substituted vide order dated 09.01.1985. Appellant No.2 Mehboob
Hussain was substituted vide order dated 14.02.1985. Respondent
No.4(a) Manzar Alam was substituted vide order dated 25.02.1987.
Prayer for substitution of Respondent No.3 and Respondent No.7 was
allowed vide order dated 31.01.1989, but the names of substituted
heirs are not reflected in the order.
11. It is argued by learned counsel on behalf of the appellants that except
for Md. Nasim and Md. Shamim, all other appellants were substituted
in Second Appeal, but necessary substitution was not made in the
cause title of the memo of appeal and consequently their names did
not reflect in the order passed in Second Appeal.
Argument on behalf of the Respondents/Plaintiffs
12.It is fairly admitted by the learned counsel during the course of
argument that Respondents Nos.4, 4(a) and Appellants Nos. 2 & 5,
were substituted in second appeal.
13. With regard to Appellant Nos.1(c), 3, Respondents Nos. 3 & 7, it is
contended that details of their heirs are not available. From the copy
of the order sheet annexed with the memo of appeal.
14.It is argued that the delay was deliberate and on account of non-
appearance of the appellants before the 1st Appellate Court. After the
order of remand, they never appeared before the 1st Appellate Court to
adduce their evidence and things started only after the plaintiff started
taking steps for the hearing of appeal. Even reconstruction of records
was objected on their behalf. Initially they did not appear, and
appeared only after issuance of notices. Now after causing
interminable delay, they seek condonation of delay in substitution and
further opportunity to lead evidence. Fruits of decree alludes the
plaintiffs/respondents, while the judgment debtors are continuing in
the possession of the demised property.
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15.It is further pointed out that there was an inordinate delay in preferring
the substitution petition with respect to Appellant No. 1 who died
sometime in the year 2000, whereas the substitution petition was filed
after 12 years without any reasonable explanation for the delay. No
date for the substitution of Appellant No.1(a) Md. Shamim has been
given.
16.So far as Abdul Mannan is concerned, in the petition dated July, 2012,
which was filed with a prayer for substitution in which it has been
shown that he died as per para-1 in October, 1994. So far Bibi Hasina
Khatoon is concerned, she died on 09.06.2011. Reliance is placed on
(2010) 8 SCC 685. Reliance is further placed on Indian Law Reports
1923 ILR (2) PAT 168 (Mostt. Bibi Khozaima Vs. The Official
Liquidator).
Conclusion
17. This case yet again demonstrates the sickening delay in civil
adjudication. Plaintiff who moved the court for eviction almost six
decades ago in the year 1966, is still awaiting the final verdict, despite
the fact that he got the eviction decree in 1979.
18. After the order of remand was passed by the High Court in second
appeal, the appellants went into a long hibernation, and the records of
the trial court as well as the 1st Appellate Court, also went missing and
several correspondences were made to trace the same.
19. Life and death do not pause for the conclusion of civil adjudications.
Life span of the instant case was punctuated by the death of parties
and substitution of some of them. What clearly emerges from the plea
of the appellants themselves is that Appellant No.1 Md. Nasim died in
the year 2000 probably on 20.03.2000, Appellant No.1(a) Md.
Shamim died after the order of remand, but no date has been given,
whereas the substitution petition was filed after a whopping delay of
at least 12 years in 2012 on abatement of the appeal.
20. Matter for consideration is if there is sufficient cause for setting aside
the abatement appeal qua these appellants?
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21. In order to answer the question, it will be necessary to extract the
relevant provision for setting aside of abatement which is as under.
Order 22 Rule 9. Effect of abatement or dismissal.--(1)
Where a suit abates or is dismissed under this Order, no fresh
suit shall be brought on the same cause of action.
(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).
[Explanation.--Nothing in this rule shall be construed as
barring, in any later suit, a defence based on the facts which
constituted the cause of action in the suit which had abated or
had been dismissed under this Order.]
Law is settled that abatement must be set aside before the
substitution can be made. It shall be advantageous to draw on
the ratio laid down by the Apex Court with regard to the
meaning and import of the expression "sufficient cause" on
which an abatement can be set aside. It has been held
in Balwant Singh v. Jagdish Singh, (2010) 8 SCC 685 :
33. Furthermore, it is also a well-settled canon of interpretative
jurisprudence that the Court should not give such an
interpretation to the 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
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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 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 Edn., 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 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.
37. We feel that it would be useful to make a reference to the
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judgment of this Court in Perumon Bhagvathy Devaswom
[(2008) 8 SCC 321]. In this case, the Court, after discussing a
number of judgments of this Court as well as that of the High
Courts, enunciated the principles which need to be kept in mind
while dealing with applications filed under the provisions of
Order 22 CPC along with an application under Section 5 of the
Limitation Act for condonation of delay in filing the application
for bringing the legal representatives on record. In SCC para
13 of the judgment, the Court held as under:(SCC pp. 329-30):
"(i) The words 'sufficient cause for not making the
application within the period of limitation' should be
understood and applied in a reasonable, pragmatic,
practical and liberal manner, depending upon the facts and
circumstances of the case, and the type of case. The words
'sufficient cause' in Section 5 of the Limitation Act should
receive a liberal construction so as to advance substantial
justice, when the delay is not on account of any dilatory
tactics, want of bona fides, deliberate inaction or
negligence on the part of the appellant.
(ii) In considering the reasons for condonation of delay, the
courts are more liberal with reference to applications for
setting aside abatement, than other cases. While the court
will have to keep in view that a valuable right accrues to
the legal representatives of the deceased respondent when
the appeal abates, it will not punish an appellant with
foreclosure of the appeal, for unintended lapses. The courts
tend to set aside abatement and decide the matter on merits,
rather than terminate the appeal on the ground of
abatement.
(iii) The decisive factor in condonation of delay, is not the
length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court
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depends on the nature of application and facts and
circumstances of the case. For example, courts view delays
in making applications in a pending appeal more leniently
than delays in the institution of an appeal. The courts view
applications relating to lawyer's lapses more leniently than
applications relating to litigant's lapses. The classic
example is the difference in approach of courts to
applications for condonation of delay in filing an appeal
and applications for condonation of delay in refiling the
appeal after rectification of defects.
(v) Want of 'diligence' or 'inaction' can be attributed to an
appellant only when something required to be done by him,
is not done.
(emphasis supplied)
22. On applying the abovementioned principles for setting aside
abatement, this Court is of the view that considering the conduct of
the Appellants/Defendants, it will be an egregious error to take a
liberal view, while considering the plea to set aside abatement. In the
order of remand passed by the High Court, there was direction to the
parties to appear before the learned Judicial Commissioner on
28.09.1995 and the appeal was to be disposed of within six months
after giving defendant/appellant to appear before the learned Judicial
Commissioner for evidence. There is no reason whatsoever for the
non-appearance and non-compliance to the order passed by the High
Court.
23.From 1995 to 2012, no step was taken on behalf of the appellants for
either adducing evidence or even filing substitution petition for those
who had died in the meantime and/or even before that. Once the date
was fixed by the remand order for appearance of the parties and on
their non-appearing, there was no need under the provisions of CPC
for the 1st Appellate Court to wait for the appearance of the parties, or
to even issue notice to secure their appearance. Order 17 Rule 2 of
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CPC specifically provides that where on any day to which the hearing
of the suit is adjourned, the parties or any of them fail to appear, the
Court may, in its discretion proceed with the case in any one of the
modes directed in that behalf under Order IX of CPC or make such
other orders as it thinks fit. Thus, first appeal could have been
dismissed for default or proceeded ex-parte as the case may be on the
non-appearance of parties. Delays occur as the mandates of procedural
law is not followed by adopting a lax approach, often euphemistically
called a liberal approach.
24. After the order of remand, strangely the lower court records went
missing and finally in the impugned order it is noted that after the
remand the first order-sheet of the Appellate Court was of 19.07.2007
on a petition filed by the Plaintiffs/Respondents. It has been further
noted that as the appellants were not taking interest in the appeal,
therefore notices were issued to them and from the service reports it
transpired that 12 of them had died.
25. There is always a party in a civil suit who gains by delays, and in the
present case it was the appellants who gained by prolonging their
occupation over the demised property. Their bonafide is dented by the
petition dated 13.06.2012 filed before the 1st Appellate Court raising
objection even to the reconstruction of record. Missing of lower court
record, followed by attempt to obstruct construction of record have
their own story to tell, but I am not entering into it and leaving it
there. It however speaks volumes about their actions and inactions in
causing delay.
26. Plea that appellant Anwar Azam was minor at the stage of second
appeal, therefore steps could not be taken on his behalf for
substitution is not impressive. There are no further factual details
given, regarding his date of birth or when did he attain majority. In
any case a person is not eternally minor, and Order 32 Rule 12 to 14
lays down procedure to be adopted when a minor attains majority.
27. Taking into account an inordinately long unexplained delay in filing
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of the substitution petition, non-appearance before the 1st Appellate
Court after the order of remand as per the direction made in it, and
lack of bonafide on the part of the appellants are some of the grounds
which fully justifies dismissal of the substitution petition dated
11.06.2012 of appellant no.1, Md Nasim and of appellant no.1(a)
Md Shamim. Consequently, their appeal stands dismissed as
abated qua these appellants.
28. There is merit in the plea raised on behalf of the appellants that some
of the parties were substituted in second appeal, which is borne out by
the documents indicating their substitution, filed and annexed with
memo appeal. Appellant No.3 Maulana Nizamuddin, Legal
Representatives of Respondent No.5 Amar Chand Ghose, Respondent
No.4 Hafiz Safaiiyat Hussain, Appellant No.2 Mehboob Hussain,
Respondent No.4 (a) Manzar Alam, Respondent No.3 and Respondent
No.7 were all substituted in S.A No.20/1979(R). Therefore the 1st
Appellate Court fell in error by not allowing the prayer seeking
permission for their addition vide petition dated 21.07.2012.
29.So far deletion simpliciter of a party from the cause title of any case is
concerned, abatement takes effect immediately after the death. Once
no substitution petition is moved, then abatement remains and deletion
is only a formal acknowledgement of this. Limitation operates for
setting aside of abatement on the death of a party, and not when such a
prayer for setting aside is not made. Therefore, prayer for deletion of
appellant no.1(d) Bibi Yatiman is concerned, the same is fit to be
allowed and her name shall be deleted from the cause title of memo of
appeal.
30. So far LRs of Appellant No.4 Abdul Manan died in the month of
October, 1994 but there is no material on record regarding his
substitution. Date of substitution is also not mentioned. Therefore,
appeal qua this appellant also stands dismissed as abated.
31. There is no doubt, what so ever that in view of the abatement of
appeal qua Appellant Nos.1, 1(a) & 4 right to sue does not survive to
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their heirs and legal representatives and the appeal stands dismissed so
far these appellants are concerned. Executing Court is required to
proceed against them as per the ratio laid down by the Apex Court in
Rahul S. Shah Vs. Jinendra Kumar Gandhi {(2021) 6 SCC 418}.
32. Now the question is how will the abatement qua appellant no.1, 1(a)
& 4 and respondent no.1 will impact the appeal? Will the appeal abate
as a whole or only with respect to the right of the parties to proceed
against Respondent No.1?
33.It has been held in Sunkara Lakshminarasamma v. Sagi Subba
Raju, (2019) 11 SCC 787 that Order 22 Rule 4 of CPC lays down that
where within the time limited by law, no application is made to
implead the legal representatives of a deceased defendant, the suit
shall abate as against a deceased defendant. This rule does not provide
that by the omission to implead the legal representative of a
defendant, the suit will abate as a whole. If the interests of the co-
defendants are separate, as in the case of co-owners, the suit will abate
only as regards the particular interest of the deceased party. If the case
is of such a nature that the absence of the legal representatives of the
deceased respondent prevents the court from hearing the appeal as
against the other respondents, then the appeal abates in toto.
Otherwise, the abatement takes place only in respect of the interest of
the respondent who has died. The test often adopted in such cases is
whether in the event of the appeal being allowed as against the
remaining respondents there would or would not be two contradictory
decrees in the same suit with respect to the same subject-matter. The
court cannot be called upon to make two inconsistent decrees about
the same property, and in order to avoid conflicting decrees the court
has no alternative but to dismiss the appeal as a whole. If on the other
hand, the success of the appeal would not lead to conflicting decrees,
then there is no valid reason why the court should not hear the appeal
and adjudicate upon the dispute between the parties.
34. What follows from the above is that if the interest of the co-
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defendants is separate, as in the case of co-owners, the suit will abate
only as regards the particular interests of deceased party, if the case is
of such a nature that the absence of the legal representatives of the
deceased respondent prevents the court from hearing the appeal as
against the other respondents, then the appeal abates in toto.
35. In the present case Plaintiffs brought the suit for eviction of the
defendants from suit premises near Holding No.567 corresponding to
present Holding No.845 situated on the Main Road within Ranchi
Municipality. It was purchased by the Plaintiffs from one Zakir
Rahman by registered deed of sale dated 03.12.1956 for a sum of
Rs45000/-. As per the case of the Plaintiffs, they defendant no.1 were
month to month tenants, whereas Defendant Nos.2 to 7 were sub-
tenants, under defendant no.1. Fair rent of the premises was fixed by
the rent controller. Eviction suit was filed on the ground of default and
personal necessity.
36. Four set of written statements were filed. Defendant No.1 had
admitted the case of the plaintiff that suit premises were required for
the personal necessity of the plaintiff and consequently had directed
the tenants to vacate the premise by 30th November 1965.
37.From the above facts which has come in the Judgment dated 19 th
December 1978 in T.A. No. 36 of 1976/52 of 1977, it is evident that
the plaintiffs had filed a joint eviction suit against the defendants for a
common suit premises which were partly in share of each defendant.
What follows is that appeal did not abate as a whole, as interest of the
defendants who were co-tenants separate and not joint, and therefore
the right to defend the suit/appeal survived in their favour for the
portion of the suit premises in their possession, despite the appeal
having abated against Appellant No.1 and 1(a).
38.It is settled law that a co-owner of property can maintain an eviction
suit, therefore abatement of appeal against Respondent No.1 will not
affect the right of the other Plaintiffs/Respondents in pursuing the
appeal.
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39. For the reasons discussed in the foregoing paragraphs, appeal
stands dismissed as abated so far substitution of Appellant Nos.1-
Md. Nasim, 1(a)-Md. Shamim and 4-Abdul Manan is concerned.
Consequently, their Legal Representatives will have no right of being
heard in the appeal before the 1st Appellate Court. The Executing
Court to take steps for their eviction in the pending eviction case.
40. Learned 1st Appellate Court is directed to implead the parties as
detailed in para 28 of this Judgment, hear the appeal and dispose it of
within three months from the date of this order.
41. In view of the laches, delay caused by the appellants, they will not be
entitled to adduce any evidence in the 1st Appellate Court, as they
forfeited the said right given in second appeal on account of their
dilatory conduct in not appearing on the date fixed for hearing of the
appeal way back in 1995.
Misc. Appeal accordingly stands disposed of.
Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated 22nd April, 2025
NAFR/Pawan/-
