Madhya Pradesh High Court
Laltaprasad vs Ramanand And 8 Ors. on 18 April, 2022
Author: Anil Verma
1 SA No.159/2010
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
SA No. 159 of 2010
(Lalta prasad Vs. Ramanand and others)
Dated : 18-04-2022
Shri Piyush Goyal, learned counsel for the appellant.
Shri A.S. Garg, learned senior counsel with Ms. Megha Jain, learned
counsel for the respondents.
Both the parties are heard on IA No.2844/2020 which is an application
under Order 22 Rule 4 read with Section 151 of CPC, IA No.2845/2020
which is an application under Order 22 Rule 9 read with Section 151 of CPC
and IA No.2846/2020, which is an application under Section 5 of the
Limitation Act for condonation of delay.
Learned counsel for the appellant contended that appellant came to
know recently that during the pendency of the appeal, respondent No.1 has
died on 5.8.2018. He submits that since the second appeal was admitted,
therefore, regular communication did not happen between the present
appellant with his counsel and only due to the ongoing construction work
when the communication was made seeking advice, the information was
provided. Hence he prays that LRs of the deceased-respondent No.1 be taken
on record in place of the deceased-respondent No.1. Counsel for the appellant
has also prayed for setting aside abatement of the appeal due to the death of
respondent No.1.
Per contra, learned counsel for the respondents strongly opposes the
prayer made by the appellant. He has placed reliance upon the judgment of
this Court in the case of Manorama Vs. Chittar and others reported in
AIR 1990 MP 112, in which it has been held that:-
"Under Order 22 Rule 9 of the Code abatement or
dismissal has to be set aside by the Court only if its is proved
that the party was prevented by any sufficient cause. It is for
the applicant to prove absence of want of care and negligence
on his part. The application cannot be allowed or dismissed by
taking recourse to conjectures."
Counsel for the respondent has also placed reliance upon the judgment
of the Hon'ble Apex Court in the case of Balwant Singh (Dead) Vs. Jagdish
Singh and others reported in (2010) 8 SCC 685, wherein it has been held
that:-
"Whenever a law is enacted by the legislature, it is intended to be
enforced in its proper perspective. It is an equally settled principle
of law that the provisions of a statute, including every word, have to
be given full effect, keeping the legislative intent in mind, in order
to ensure that the projected object is achieved. In other words, no
provisions can be treated to have been enacted purposelessly. 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 have to be given their true and correct meaning and must
be applied wherever called for. If the Court should take a very
liberal approach and interpret these provisions 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."
But the Hon'ble Apex Court in the case of Perumon Bhagvathy
Devaswom Perinadu Village Vs. Bhargavi Amma reported in 2009(1)
MPLJ 510 has held that:-
"(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 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 bonafides,
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
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. When nothing is required to be done, courts do not expect the
appellant to be diligent. Where an appeal is admitted by the High
Court and is not expected to be listed for final hearing for a few
years, an appellant is not expected to visit the court or his lawyer
every few weeks to ascertain the position nor keep checking whether
the contesting respondent is alive. He merely awaits the call or
information from his counsel about the listing of the appeal."
The coordinate Bench of this Court in the case of Jama Masjid Vs.
Baboo Khan reported in 2016 SCC OnLine MP 6706 has held as under:-
"5. Recently, the Apex Court considered this aspect in
the case of Banwari Lal (dead) by legal representatives and
another Vs. Balbir Singh-2016(1) SCC 607. The Apex Court
opined that the language in Order 22 Rule3,4,9 and 11 should
not be interpreted by treated it as penal provisions. The
procedure is prescribed only to facilitate the administration of
justice and not to defeat it.
6. In view of the said judgment, in my view the I.As
deserve to be allowed. Resultantly, I.As are allowed.
Abatement is set aside. Delay is condoned. Necessary
corrections in the array of respondents be made within 15
working days. Fresh P.F be paid for is suiance of notices to the
newly added respondents with the aforesaid time. On payment
of PF, notices be issued to the newly added respondents."
In view of the aforesaid, this Court is of the considered view that there
is sufficient cause for setting aside abatement of the appeal and condonation
of delay in bringing the LRs on record. Under section 5 of the Limitation Act
which applies by virtue of Order 22 Rule 9 of the CPC, this Court has
discretion to admit an application filed after the prescribed period because the
appellant satisfied that he had sufficient cause for not making the application
within such time. Therefore, in my view the IAs deserves to be allowed.
Resultantly all the three IAs (IA Nos.2844/2020, 2845/2020 &
2846/2020) are allowed. Abatement in respect of the deceased-Respondent
No.1 is hereby set aside. Delay in filing such application is also condoned
and proposed LRs of the deceased-Respondent No.1 are also taken on record.
Counsel for the appellant is directed to carry out the necessary
amendment in the cause title within 10 days.
(ANIL VERMA)
JUDGE
Trilok/-
Digitally signed by TRILOK SINGH SAVNER
Date: 2022.04.21 18:47:16 +05'30'
