Madhya Pradesh High Court
Ramua vs Kodulal on 15 March, 2022
Author: Arun Kumar Sharma
1
THE HIGH COURT OF MADHYA PRADESH : JABALPUR
1 Case Number Second Appeal No.1558/2008
2 Parties Name Ramua (Dead) and another vs. Kodulal and
another
3 Date of Judgment 15/03/2022
4 Bench Constituted of Hon. Shri Justice Arun Kumar Sharma
5 Judgment delivered by Hon. Shri Justice Arun Kumar Sharma
6 Whether approved for re- YES
porting
7 Name of the counsel for Shri Sushil Kumar Tiwari, Advocate for the ap-
the parties pellants.
Shri P. C. Paliwal, Advocate for respondent
no.1.
Shri Yogesh Mishra, PL for respondent no.2 /
State.
8 Law Laid down & Signif- Respondent no. 1 has miserably failed in show-
cant paragraphs number
ing any "sufficient cause" which is necessary in-
no. 12, 14 & 17
gredients under Section 5 of the Limitation Act
for condonation of delay. He has acted with cal-
lousness, irresponsibly and did not state true
facts in the applications. He has not ap-
proached the Court with clean hands
(Arun Kumar Sharma)
Judge
JP/-
2 SA No.1558/08
HIGH COURT OF MADHYA PRADESH, JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA)
S.A. No.1558/2008
Ramua (Dead) and another
Vs.
Kodulal and another
----------------------------------------------------------------------------------------------------------------
Shri Sushil Kumar Tiwari, Advocate for the appellants.
Shri P. C. Paliwal, Advocate for respondent no. 1.
Shri Yogesh Mishra, PL for respondent no. 2/ State.
----------------------------------------------------------------------------------------------------------------
JUDGMENT
(15-03-2022)
Today the case is listed for hearing on IA No.6938/2021 under
Order 22 Rule 9 of CPC; IA No.6939/2021 under Section 5 of the
Limitation Act and also IA No.6937/2021 under Order 22 Rule 3/11 of
CPC. All these applications have been fled by respondent no. 1 on
20.09.2021.
2. I.A. No.6938/2021 under Order 22 Rule 9 of the Code of Civil
Procedure fled seeking setting aside of the abatement is barred
by time. It is fled accompanied by an application i.e. I.A.
No.6939/2021 under Section 5 of the Limitation Act seeking
condonation of delay.
3. On 20.9.2021 the application i.e. IA No.6938/2021 under Order
22 Rule 9 of the Code of Civil Procedure for setting aside of the
abatement against the deceased appellant no. 1 has been fled by
respondent no. 1 stating that during the pendency of the cross-
appeal, appellant no. 1 Ramua S/o. Devi Mehra died on 12-07-2018
and respondent no.1 came to the knowledge of death of appellant
no. 1 in the month of September, 2021 frst time and thus,
respondent no.1 was required for substitution of his legal
representatives of the deceased appellant no. 1 in the memo of
cross-appeal within a period of 90 days but the same was not done
within the prescribed period of time and thus, the cross-appeal is
abated against the deceased appellant no.1 on 10-10-2018. The
limitation for fling the application was up to 9-12-2018 and this
application was also not fled within a period of 60 days from the
date of abatement. It is further contended that the counsel
appearing on behalf of the appellants had not informed
respondent no. 1 and even this Court regarding the death of
appellant no. 1. Respondent no. 1 is residing in remote area and is a
rustic villager and he belongs to rural folk, or is poverty stricken or
illiterate and is mostly not aware of the necessity of taking steps
for substitution on the death of a party.
4. On 20.9.2021 the accompanied application i.e. I.A.
No.6939/2021 under Section 5 of the Limitation Act has been fled
stating that the cross-appeal is abated against the deceased
appellant no.1 on 10-10-2018. The limitation for fling the application
under Order 22 Rule 9 of CPC was up to 9-12-2018 and this
application was also not fled within a period of 60 days from the
date of abatement. Hence, this application is barred by 1016 days
which requires to be condoned inter-alia on the grounds that
respondent no. 1 is a 78 years old and sick person and is a very
hopeless state of health. Due to Covid-19 corona virus (pandemic),
respondent no. 1 could not establish connection between his
relatives and close friends. The delay in fling the application is
due to bona-fde and with sufficient cause. The approach has to be
liberal and judicious guided by the paramount consideration of not
depriving a litigant ordinarily of adjudication of rights on merits.
Hyper technical, too strict, and pedantic approach as may cause
injustice has to be avoided. Hence, prayer is made to condone the
delay.
5. IA No.6937/2021 under Order 22 Rule 3/11 of CPC for bringing
the legal representatives of the deceased -appellant no. 1 Ramua
S/o. Devi Mehra in the memo of cross-objection / appeal has been
fled. The application is supported by an affidavit of respondent
no. 1 / plaintiff Kodulal.
6. Learned counsel for the appellants refuting the aforesaid
contentions contended that the application (IA No.6938/21) under
Order 22 Rule 9 of CPC has not been fled within the prescribed
time period and there is inordinate delay of 1016 days for which day
to day explanation has not been given even no satisfactory
explanation and sufficient cause has been shown. Moreover, the
appellants / defendants fled the present second appeal on
20.11.2008 against the judgment and decree dated 22.08.2008
passed by Additional Judge to the Court of Third Additional District
Judge (Fast Track Court) Shahdol in C. A. No.140-A/2007, whereby
the said appeal preferred by respondent no. 1 / plaintiff Kodulal
was partly allowed and passed the decree that possession of the
plaintiff shall not be removed except in accordance with law. This
appeal was listed for hearing on 18-03-2009 and on the same day,
the appellants / defendants had withdrawn the appeal. During the
pendency of this second appeal, on 6.2.2009 respondent no. 1 /
plaintiff fled the cross appeal / objection under Order 41 Rule 22 of
the Code of Civil Procedure which is pending and is barred by 525
days and on 16.7.2010 the application i.e. IA No.7941/2010 under
Section 5 of the Limitation Act was fled seeking condonation of
delay in fling the cross-appeal / objection. This court vide order
dated 14.12.2009 called for record of the courts below and directed
to list the case for cross-objection / appeal fled by respondent no. 1
immediately after receipt of the record. Vide order dated 21.6.2010
the case was fxed for 24.6.2020 for consideration the question
regarding maintainability of the cross objection in the disposed of
second appeal. However, on 24.6.2010 the case was adjourned for
admission of cross objection and on 30.06.2010 before making any
submission on merits of cross objection for admission, counsel for
respondent no. 1 prayed for time to fle an appropriate application
on the question of limitation. IA No.7941/2010 under Section 5 of
the Limitation Act fled seeking condonation of delay occurred in
fling the cross-appeal / objection was barred by 525 days in which
day to day delay has not been explained by respondent no.1 in
fling the cross objection so also the delay of fling an application
under Section 5 of the Limitation Act. Further contended that no
cause, much less sufficient, has been shown for setting aside the
abatement. Due to non-availability of explanation of day to day
delay and also due to vague and general application, the same is
liable to be rejected. Resultantly, on the ground of delay alone,
cross -objection / appeal is not sustainable. Further contended that
respondent no. 1 / plaintiff has no right, title or any kind of owner
on the land dispute in question has already been held initially by
learned both the courts below and thus, the cross objection is sans
merit and it is liable to be dismissed in motion stage and the
second appeal fled by the appellants has been dismissed as not
pressed and now, there is no substantial question of law to
entertain the cross objection after dismissal of the second appeal.
7. Further contended that respondent no. 1 has suppressed
very important fact of the case regarding getting information
about the death of appellant no. 1. While, respondent no.1 is the
real brother of deceased -appellant no. 1 Ramua; resident of the
same village. According to the particular of record of courts below
and the particular of memo of cross appeal and even from the
particular of address of affidavits of Kodulal Mehra fled presently
in support of all aforesaid applications showing himself as a
resident of the same village i.e. Dindori, PS Chandia, District Umaria
and how can one assume that a sibling has no knowledge about his
brother's death. Further submitted that no reasonable and
plausible explanation has been given in the aforesaid applications
by respondent no.1 about the particular date of time of knowledge
of death of Ramua and about the particular of source of
information from anyone; either from relatives or friends of
respondent no.1 or the deceased Ramua and in fact, vague and
general explanation has been given to set aside the abatement of
cross appeal against appellant no. 1 and condoning the delay of
fling the application for bringing the LR's on record and thus in
absence of "sufficient cause" delay need not be condoned. On
behalf of appellant no.2, the learned counsel invited the attention
of this court that admittedly the appeal fled by the appellants
Ramua and Smt. Janki Dvei was dismissed as not pressed on very
frst hearing of admission stage without any notice to any
respondents on dated 18.03.2009 i.e. much before the date of
death of Ramua who died on 12.07.2018. But, only because of the
fling of cross objection it is surviving, in which since the date
21.06.2010 it was not argued on maintainability of cross objection
being not fled within the prescribed limitation for fling the second
appeal and now the aforesaid applications have been fled after
about more than 3 years from the date of death of Ramua and not
fled within the prescribed limitation of 90 days. The respondent
no.1 in the said two applications admitted the delay of about 1016
days but the said delay has not been explained properly and
submitted that if he did not take any steps to bring the same on
record in this appeal within limitation, resultantly the appeal has
become abated automatically under the law. Thus, there is no
sufficient cause to condone such delay and setting aside the
aforesaid abatement and prayer for dismissal of such applications
was made.
8. Heard learned counsel for both the parties and on a bare
perusal of the aforesaid applications, it is found that admittedly
there is a delay of 1016 days according to respondent no. 1 in fling
the application for bringing the legal representatives on record and
for setting aside of the abatement. To explain this delay,
respondent no. 1 has fled application mentioning general cause,
and no sufficient cause and reasonable cause has been shown for
condoning the delay. Respondent no. 1 has taken grounds that
respondent no. 1 is an old and infrm person and resides in a
remote area and there is no connection between the deceased -
appellant no. 1, because of which, respondent no. 1 could not get
information regarding the death of appellant no. 1 and for the frst
time in September, 2021 respondent no. 1 came to know about the
death of appellant no. 1. Mere allegations about belated
knowledge of death of the opposite party would not be sufficient.
9. It is clear from a bare reading of the applications (IA
No.6938/21 & 6939/21) that respondent no. 1 was totally callous
about pursuing his appeal. He has acted irresponsibly and even
with negligence. Besides this, he has not approached the Court
with clean hands. Respondent no. 1, who seeks aid of the Court for
exercising its discretionary power for condoning the delay, is
expected to state correct facts and not state lies before the Court.
Approaching the Court with unclean hands itself is a ground for
rejection of such applications.
10. On the reason mentioned in the application U/O 22 Rule 9
read with application U/s. 5 of the Limitation Act and on
submission raised by the learned counsel, it is evident from the
above narrated facts that appellant no.1 died on 12.07.2018, while
the present applications have been fled on or about 23.09.2021.
Thus, there is delay of about 1080 in fling these applications and
very vague and general explanation has been given that
respondent no.1 came to know about Ramua's death in
September, 2021 and what was the explanation in between
12.07.2018 to September 2021, no sufficient cause or reason has
been assigned about such huge delay despite the fact that
respondent no.1 is real brother of Ramua and no one can assume
that a sibling wasn't aware of his brother's death. And even no
reasonable cause has been shown for condoning the delay of more
than 3 years and the appeal has already abated.
11. The Apex Court in the case of Balwant Singh (Dead) v.
Jagdish Singh and others, (2010) 8 SCC 684 has held that "even if
"sufficient cause" has to receive liberal construction, it must
squarely fall within concept of reasonable time and proper conduct
of party concerned. Liberal construction cannot be equated with
doing injustice to the other party. There is no straitjacket formula
uniformly applicable to all the cases.
12. It is a settled position of law that a suit or an appeal abates
automatically if the legal representatives, particularly of the sole
appellant, are not brought on record within the stipulated period.
Relevant paragraphs 37 and 38 are reproduced here as under:-
37. "We feel that it would be useful to make a reference
to the judgment of this Court in Perumon Bhagvathy
Devaswom (supra). 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 fled under
the provisions of Order 22, CPC along with an application
under Section 5, Limitation Act for condonation of delay in
fling the application for bringing the legal representatives
on record. In paragraph 13 of the judgment, the Court held
as under:-
"13 (i) The words "sufficient cause for not
making the application within the period of
limitation" should be understood and applied in
a reasonable, pragmatic, practical and liberal
manner, depending upon the facts and
circumstances of the case, and the type of case.
The words `sufficient cause' in Section 5 of the
Limitation Act should receive a liberal
construction so as to advance substantial justice,
when the delay is not on account of any dilatory
tactics, want of bona fdes, 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.
(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 fling an appeal and
applications for condonation of delay in re-fling
the appeal after rectifcation 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 fnal 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.
We may also notice here that this judgment had been
followed with approval by an equi-bench of this Court in the
case of Katari Suryanarayana (supra).
38. Above are the principles which should control the
exercise of judicial discretion vested in the Court under
these provisions. The explained delay should be clearly
understood in contradistinction to inordinate unexplained
delay. Delay is just one of the ingredients which has to be
considered by the Court. In addition to this, the Court
must also take into account the conduct of the parties,
bona fde reasons for condonation of delay and whether
such delay could easily be avoided by the applicant acting
with normal care and caution. The statutory provisions
mandate that applications for condonation of delay and
applications belatedly fled beyond the prescribed period
of limitation for bringing the legal representatives on
record, should be rejected unless sufficient cause is
shown for condonation of delay. The larger benches as
well as equi-benches of this Court have consistently
followed these principles and have either allowed or
declined to condone the delay in fling such applications.
Thus, it is the requirement of law that these applications
cannot be allowed as a matter of right and even in a
routine manner. An applicant must essentially satisfy the
above stated ingredients; then alone the Court would be
inclined to condone the delay in the fling of such
applications.
13. Same was the view of the Hon'ble Apex court in the case
of Union of India and others vs. Nripen Sarma, reported in 2013
(3) MPLJ 5 and this Court in the case of Anoop Choudhary vs.
Smt. Usha Bhargawa, ILR (2008) MP 1763 has also dismissed the
application under Section 5 of the Limitation Act on ground of
"insufficient cause".
14. In view of the aforesaid discussion and taking into
consideration the aforesaid case laws, this court fnds that
respondent no. 1 has totally failed to show "sufficient cause" to
condone the delay and has also failed to show why immediate
steps were not taken by respondent no.1. Thus, this Court has no
hesitation to reject the applications being IA No.6939/21 under
Section 5 of the Limitation Act and consequently, IA No.6938/21
under Order 22 Rule 9 of CPC and IA No.6937/21 under Order 22
Rule 3/11 of CPC.
15. Heard on IA No.7941/2010 under Section 5 of the Limitation
Act which is barred by 525 days in fling the cross -objection /
appeal fled by respondent no. 1.
16. Learned counsel for appellant no. 2 has also fled reply to the
aforesaid application being IA No.3535/2017 in detail and prayed
for dismissal of the same as well as cross-appeal / objection in
preliminary stage on admission.
17. This application (IA No.7941/2010) also deserves to be
dismissed as not maintainable due to barred by time and also in
absence of satisfactory & reasonable explanation of day to day
delay in fling the cross objection (cross appeal). Further, this
application has also been fled by misrepresenting the facts and
vague and general cause has been shown for condoning the delay
which are not under the purview of "Sufficient cause" and
moreover, respondent no. 1 has not come before this Court with
clean hands and tried to misguide and mislead the Court by putting
wrong facts regarding getting information about the death of
appellant no. 1. The deceased appellant no. 1 Ramua was the real
brother of respondent no. 1 / plaintiff Kodulal as it is axiomatic
from the cause title of memo of appeal, cross-appeal/ objection
and from the records of the courts below. The Apex court in the
case of Union of India and others vs. Nripen Sarma reported in
2013 (3) MPLJ 5 and this court also in the case of State of M.P. and
others vs. Virendra Shankar and another reported in 2013 (1) MPLJ
662, had not condoned the delay in fling the appeal holding that
no satisfactory explanation exist for condoning inordinate delay
and the Court expressed deep anguish and distress.
18. This Court also expresses deep cogitation about the conduct
of respondent no. 1 regarding not getting information about his
real brother in time. It is unbelievable that how one person like
respondent no.1 can say that he could not get information about
the death of his real brother on time. Even in the cause title of
cross-objection itself, address of appellant no. 1 and respondent
no. 1 are same. Apart from it, respondent no. 1 has mentioned in his
application that appellant no.1 was residing in Ranjhi, Jabalpur but
no document has been fled regarding address proof of appellant
no. 1.
19. Considering the aforesaid aspect of the matter, this
application does not survive for consideration and is hereby
dismissed. Consequently, the cross-objection / appeal also stands
dismissed.
20. Records of both the courts below be sent back along with a
copy of this order to the trial court for information and necessary
action.
There shall be no orders as to costs.
(ARUN KUMAR SHARMA)
JUDGE
Jp/-
JITENDRA KUMAR PAROUHA
2022.03.15 14:57:54 +05'30'
