Madhya Pradesh High Court
Murti Mahadev Shanidev Mandir ... vs Laxman Giri on 5 August, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1 SA-2544-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
SA No. 2544 of 2005
(MURTI MAHADEV SHANIDEV MANDIR SHANICHARA AND OTHERS Vs LAXMAN GIRI AND OTHERS )
Dated : 05-08-2024
Shri Siddharth Gulatee - Advocate for the appellants.
Shri Devendra Gangrade - Advocate for the respondents.
On 13.4.2024, learned counsel for the both the parties were heard on
I.A. No. 10690 of 2018, an application under Order 22, Rule 4 of CPC for
substitution of L.Rs. of respondent no. 1 (Late Laxman Giri). It was
submitted that Laxman Giri expired on 9.7.2011 leaving behind L.Rs. as
mentioned in the application.
I.A. No.10692 of 2018 , an application under Order 22, Rule 9 of CPC
for setting aside abatement of the appeal against the respondent no. 1 was for
the same purpose.
I.A. No.10691 of 2018 , an application under Section 5 of the
Limitation Act for condonation of delay in filing of the application for
setting aside abatement of the appeal.
It was argued by learned counsel for the appellants that this brief has
come on NOC. Learned counsel Shri Umesh Trivedi had filed the appeal on
8.11.2005 and Shri Siddharth Gulatee appellants' counsel had filed the
Vakalatanama on behalf of L.Rs. of appellants on 17.2.2015.
Learned counsel for the appellants relied on the following judgments :-
(a) Sardar Amarjit Singh Kalra (Dead) by L.Rs. and others Vs. Pramod
Gupta (Smt. (dead) by Lrs. And others reported in (2003) 3 SCC 272 in
which it was held as under :-
26.Laws of procedure are meant to regulate
effectively, assist and aid the object of doing substantial
and real justice and not to foreclose even an adjudication on
merits of substantial rights of citizen under personal,
property and other laws. Procedure has always been viewed
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as the handmaid of justice and not meant to hamper the
cause of justice or sanctify miscarriage of justice. A careful
reading of the provisions contained in Order 22 CPC as
well as the subsequent amendments thereto would lend
credit and support to the view that they were devised to
ensure their continuation and culmination in an effective
adjudication and not to retard the further progress of the
proceedings and thereby non-suit the others similarly
placed as long as their distinct and independent rights to
property or any claim remain intact and not lost forever due
to the death of one or the other in the proceedings. The
provisions contained in Order 22 are not to be construed as
a rigid matter of principle but must ever be viewed as a
flexible tool of convenience in the administration of justice.
The fact that the khata was said to be joint is of no
relevance, as long as each one of them had their own
independent, distinct and separate shares in the property as
found separately indicated in the jamabandi itself of the
shares of each of them distinctly. We are also of the view
that the High Court should have, on the very perception it
had on the question of abatement, allowed the applications
for impleadment even dehors the cause for the delay in
filing the applications keeping in view the serious manner
in which it would otherwise jeopardize an effective
adjudication on merits, the rights of the other remaining
appellants for no fault of theirs. Interests of justice would
have been better served had the High Court adopted a
positive and constructive approach than merely scuttled the
whole process to foreclose an adjudication of the claims of
others on merits. The rejection by the High Court of the
applications to set aside abatement, condonation and
bringing on record the legal representatives does not
appear, on the peculiar nature of the case, to be a just or
reasonable exercise of the Court's power or in conformity
with the avowed object of the Court to do real, effective
and substantial justice. Viewed in the light of the fact that
each one of the appellants had an independent and distinct
right of his own not interdependent upon one or the other of
the appellants, the dismissal of the appeals by the High
Court in their entirety does not constitute a sound,
reasonable or just and proper exercise of its powers. Even if
it has to be viewed that they had a common interest, then
the interests of justice would require the remaining other
appellants being allowed to pursue the appeals for the
benefit of those others, who are not before the Court also
and not stultify the proceedings as a whole and non-suit the
others as well.
(b) Bhikam Singh and others Vs. Ranveer Singh reported in I.L.R.
(2019) M.P. 577 :-
1 1 . There is no dispute that when the legal
representatives of a dead person are not brought on record,
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then the decree passed against the dead person would be a
nullity. But in the present case the facts are
distinguishable. Undisputedly, the defendant No.
3/appellant No. 3 is the mother of the defendant No. 2 who
had expired during pendency of the civil suit. Being Class-
I heir the mother is one of the legal representatives of
defendant No. 2 Pooran Singh. Thus, it is clear that one of
the legal representatives of deceased Pooran Singh was
already on record.
12. It is well-established principle of law that where
one of the legal representatives of a dead person is already
on record, then no abatement would take place only on the
ground of non-bringing the remaining legal representatives
on record within the stipulated period. Similarly, when
there is substantial representation of estate of deceased,
then the suit cannot be dismissed.
Learned counsel for the respondents strongly opposes the applications
by way of reply that the application has been filed very belatedly and relied
on the following judgments :-
(a) Smt. Savitri Bai Vs. Anar Bai (D) Th. her Legal Heirs reported in
2014 SCC OnLine MP 3345 in which it was held as under :-
"7. In construing Section 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. Chathappan, ILR 13 Mad 269. It is however,
necessary to emphasize that even after sufficient cause has
been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a
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sufficient cause is a condition precedent for the exercise
of the discretionary jurisdiction vested in the court by
Section 5. If sufficient cause is not proved nothing further
has to be done; the application for condoning delay has to
be dismissed on that ground alone. If sufficient cause is
shown then the Court has to enquire whether in its
discretion it should condone the delay. This aspect of the
matter naturally introduces the consideration of all
relevant facts and it is at this stage that diligence of the
party or its bona fides may fall for consideration;..."
(b) Misriya (since dead) through Lrs. And others Vs. Kishandas (since
dead) and others reported in 2012 (4) M.P.L.J ., 179 in which it was held as
under :-
17. Conduct of the appellants in not taking timely
steps for bringing the legal representatives of the
respondent Nos. 2 to 5 within a reasonable period after
their respective deaths as well as in not bothering to
move applications for condonation of delay and for
setting aside the abatement is sufficient to infer gross
negligence and deliberate inaction on their part.
22. In the result, the applications for condonation
of delay as well as the applications for setting aside the
abatement are hereby dismissed. The other I.As for
substitution of legal representatives of respondent Nos. 2
to 5 also stand rejected as rendered redundant.
(c) In judgment dated 06.04.2015 passed in Second Appeal No.162 of
2009 (Chunnilal, S/o Shri Sakharam Vs. Hirdaram, S/o Shri Dayaram and 8
others, it was held as under in Para-4 : -
"4 .........................Counsel placed reliance on
Balwant Singh (Dead) vs. Jagdish Singh and others
(2010) 8 SCC 685 whereby the Apex Court has
considered what is sufficient cause for setting aside
abatement of suit and condonation of delay in bringing
LRs on record and the Court held that
"even if "sufficient cause" has to receive
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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.
This balance has to be kept in mind by Court
while deciding such applications. Expression
"sufficient cause" implies presence of legal and
adequate reasons. There is no straitjacket formula
uniformity applicable to all cases. Test to judge
whether or not a cause is sufficient is to see
whether it could have been avoided by the party
by exercise of due care and attention."
Counsel submitted that sufficient cause is not established
in the present case since colossal delay of 1700 days has
occasioned in filing the application due to the
negligence of the proposed appellants. Counsel further
relied on Lanka Venkateswarlu (Dead) by Lrs. vs. State
of Andhra Pradesh and others (2011) 4 SCC 363
whereby the Apex Court has held that the applications
filed both for condonation of 883 days' delay in filing
petition to set aside dismissal order and for condonation
of 3703 days' delay in bringing on record Lrs of
deceased respondent that : while finding absence of any
explanation to justify delay as well as negligence of part
of appellants the High Court had allowed those
applications taking view that delay was due to
inefficiency, ineptitude and negligence of the
Government pleader concerned. The Apex Court
however, held that the discretion should be exercised
systematically and the Court should be informed by
cogent reasons. Liberal approach in considering
sufficiency of cause for delay should not override
substantial law of limitation, especially when Court
finds no justification for delay. The Apex Court held :
"High Court not justified in allowing applications
for condonation of delay. High Court failed to exercise
its discretion to condone delay in reasonable impartial
and objective manner. Hence, application dismissed and
appeal of respondents before High Court held to have
abated.
5. Considering the above submissions, I find that the
bonafides of the legal representatives are in doubt since
valid cogent reasons have not been given by the legal
representatives of the appellant deceased Chunnilal and
the applicants have failed to bring the legal
representatives of the deceased appellant Chunnilal on
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record in time, despite having received information in
the executing Court thus due diligence has not been
exercised. The application for condonation of delay is
lacking in bonafides. Therefore, also placing reliance on
Lanka Venkateswarlu (supra) the application for
condonation of delay is hereby dismissed.
(d) Ratanlal Vs. Shivlal and others reported in 2017 (1) M.P.L.J . in
which it was held as under :-
5 . I have heard the learned counsel for both the
parties and have perused the record.
6. It is borne out from the record that this second
appeal was filed by original plaintiff Ratanlal in the year
2005 and thereafter it was listed on 6-3-2014 for
hearing. On that date appellant Ratanlal was reported to
have died and two weeks' time was prayed for filing
appropriate application for bringing on record the legal
heirs of deceased appellant but thereafter no application
was filed and on 28-3-2014 this Court heard the
argument on the question of admission and appeal was
admitted for final hearing and notices were directed to
be issued to the respondents for final hearing of the
appeal. Then the case was listed on 14-9-2014, 1-10-
2014, 12-11-2014 and 11-12-2014 but no application
was moved for bringing the legal representatives of
deceased sole appellant Ratanlal on record. In fact this
appeal ought to have been dismissed as abated due to
the death of sole appellant/plaintiff Ratanlal only on 6-
3-2014 when it was listed for hearing but no step has
been taken by the learned counsel for bringing the legal
representatives of the deceased plaintiff on record.
7.It is true that while considering the application
for condonation of delay, liberal approach has to be
adopted and on this proposition of law there are several
judicial pronouncements, some of them have already
been relied on by learned counsel for the appellant, as
mentioned above, but while adopting liberal approach
the Court cannot ignore another principle of law that the
law comes to rescue all vigilant litigants.
8 In the case of H. Dohil Constructions Company
Pvt. Ltd. v. Nahar Exports Limited, (2015) 1 SCC 680,
the Hon'ble Apex Court observed in following manner:
--
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"24. When we apply those principles of Esha
Bhattacharjee v. Raghunathpur Nafar Academy , (2013)
12 SCC 649 to the case on hand, it has to be stated that
the failure of the respondents in not showing due
diligence in filing of the appeals and the enormous time
taken in the refiling can only be construed, in the
absence of any valid explanation, as gross negligence
and lacks in bona fides as displayed on the part of the
respondents. Further, when the respondents have not
come forward with proper details as regards the date
when the papers were returned for refiling, the non-
furnishing of satisfactory reasons for not refiling of
papers in time and the failure to pay the Court fee at the
time of the filing of appeal papers on 6-9-2007, the
reasons which prevented the respondents from not
paying the Court fee along with the appeal papers and
the failure to furnish the details as to who was their
counsel who was previously entrusted with the filing of
the appeals cumulatively considered, disclose that there
was total lack of bona fides in its approach. It also
requires to be stated that in the case on hand, not refiling
the appeal papers within the time prescribed and by
allowing the delay to the extent of nearly 1727 days,
definitely calls for a stringent scrutiny and cannot be
accepted as having been explained without proper
reasons. As has been laid down by this Court, Courts are
required to weigh the scale of balance of justice in
respect of both the parties and the same principle cannot
be given a go-by under the guise of liberal approach
even if it pertains to refiling. The filing of an application
for condoning the delay of 1727 days in the matter of
refiling without disclosing reasons, much less
satisfactory reasons only results in the respondents not
deserving any indulgence by the Court in the matter of
condonation of delay. The respondents had filed the suit
for specific performance and when the trial Court found
that the claim for specific performance based on the
agreement was correct but exercised its discretion not to
grant the relief for specific performance but grant only a
payment of damages and the respondents were really
keen to get the decree for specific performance by filing
the appeals, they should have shown utmost diligence
and come forward with justifiable reasons when an
enormous delay of five years was involved in getting its
appeals registered."
9.The crucial fact which defeat the appeal is that
on 6-3-2014 a statement was made before this Court that
the appellant has expired and two weeks' time was
sought for moving appropriate application, thereafter no
application has been preferred for setting aside the
abatement or for bringing the legal representatives on
record. Moreover, the contents of the application
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seeking setting aside of abatement show that the legal
representatives gathered knowledge only after 11-12-
2014 when the counsel sent a letter to him, which runs
contrary to the statement made before this Court on 6-3-
2014. It may also be observed that the application filed
under section 5 of Limitation Act is vague and does not
offer sufficient explanation for the delay caused in
moving the application for abatement.
10. Consequently, having left with no other option
this Court is of the considered opinion that the appeal
has abated by operation of law and sufficient ground has
not been canvassed for setting aside the abatement in
view of the discussion made herein above.
(e) Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi
Amma (Dead) by Lrs. And others reported in (2008) 8 SCC 321 in which it
was held as under :-
4 . 5 . Rule 10-A of Order 22 provides that
whenever a pleader appearing for a party to the suit
comes to know of the death of that party, he shall
inform the court about it, and the court shall thereupon
give notice of such death to the other party.
5. Having regard to the wording of Rule 4, it is
clear that when a respondent dies and an application to
bring his legal representative on record is not made,
abatement takes place on the expiry of the prescribed
period of 90 days, by operation of law. Abatement is not
dependent upon any judicial adjudication or declaration
of such abatement by a judicial order. It occurs by
operation of law. But nevertheless "abatement" requires
judicial cognizance to put an end to a case as having
abated. To borrow a phrase from Administrative Law
(used with reference to void orders), an appeal bears no
brand on its forehead that it has "abated", nor does it
close itself automatically on abatement. At some stage,
the court has to take note of the abatement and record
the closure of the case as having abated (where the
deceased was a sole respondent) or record that the
appeal had abated as against a particular respondent (if
there are more than one and the cause of action survives
against the others).
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6. What should be the approach of the courts
while considering applications under Section 5 of the
Limitation Act, 1963, has been indicated in several
decisions. It may be sufficient to refer to two of them.
I n Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969
SC 575] (at AIR p. 578, para 7) this Court reiterated the
following classic statement
from Krishna v. Chathappan [ILR (1890) 13 Mad 269] :
(Krishna case [ILR (1890) 13 Mad 269] , ILR p. 271)
" ... Section 5 gives the courts 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 fides is imputable to the
appellant."
13. The principles applicable in considering
applications for setting aside abatement may thus be
summarised as follows:
(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.
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(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.
1 4 Let us next also refer to some of the special
factors which have a bearing on what constitutes
sufficient cause, with reference to delay in applications
for setting aside the abatement and bringing the legal
representatives on record.
15. The first is whether the appeal is pending in a
court where regular and periodical dates of hearing are
fixed. There is a significant difference between an
appeal pending in a subordinate court and an appeal
pending in a High Court. In lower courts, dates of
hearing are periodically fixed and a party or his counsel
is expected to appear on those dates and keep track of
the case. The process is known as "adjournment of
hearing". In fact, this Court in Ram Charan [AIR 1964
SC 215] inferred that the limitation period for bringing
the legal representative might have been fixed as 90
days keeping in mind the adjournment procedure :
(AIR p. 220, para 12)
"12. ... The legislature might have expected that
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ordinarily the interval between two successive hearings
of a suit will be much within three months and the
absence of any defendant within that period at a certain
hearing may be accounted by his counsel or some
relation to be due to his death or may make the plaintiff
inquisitive about the reasons for the other party's
absence."
16. In contrast, when an appeal is pending in a
High Court, dates of hearing are not fixed periodically.
Once the appeal is admitted, it virtually goes into
storage and is listed before the Court only when it is
ripe for hearing or when some application seeking an
interim direction is filed. It is common for appeals
pending in High Courts not to be listed at all for several
years. (In some courts where there is a huge pendency,
the non-hearing period may be as much as ten years or
even more.) When the appeal is admitted by the High
Court, the counsel inform the parties that they will get
in touch as and when the case is listed for hearing.
There is nothing the appellant is required to do during
the period between admission of the appeal and listing
of the appeal for arguments (except filing paper books
or depositing the charges for preparation of paper books
wherever necessary). The High Courts are overloaded
with appeals and the litigant is in no way responsible
for non-listing for several years. There is no need for
the appellant to keep track whether the respondent is
dead or alive by periodical enquiries during the long
period between admission and listing for hearing. When
an appeal is so kept pending in suspended animation for
a large number of years in the High Court without any
date being fixed for hearing, there is no likelihood of
the appellant becoming aware of the death of the
respondent, unless both lived in the immediate vicinity
or were related or the court issues a notice to him
informing the death of the respondent.
17. The second circumstance is whether the
counsel for the deceased respondent or the legal
representative of the deceased respondent notified the
court about the death and whether the court gave notice
of such death to the appellant. Rule 10-A of Order 22
casts a duty on the counsel for the respondent to inform
the court about the death of such respondent whenever
he comes to know about it. When the death is reported
and recorded in the order-sheet/proceedings and the
appellant is notified, the appellant has knowledge of the
death and there is a duty on the part of the appellant to
take steps to bring the legal representative of the
deceased on record, in place of the deceased. The need
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for diligence commences from the date of such
knowledge. If the appellant pleads ignorance even after
the court notifies him about the death of the respondent
that may be an indication of negligence or want of
diligence.
18. The third circumstance is whether there is
any material to contradict the claim of the appellant, if
he categorically states that he was unaware of the death
of the respondent. In the absence of any material, the
court would accept his claim that he was not aware of
the death.
19. Thus it can safely be concluded that if the
following three conditions exist, the courts will usually
condone the delay, and set aside the abatement (even
though the period of delay is considerable and a
valuable right might have accrued to the opposite party
--LRs of the deceased--on account of the abatement):
(i) The respondent had died during the period
when the appeal had been pending without any hearing
dates being fixed;
(ii) Neither the counsel for the deceased
respondent nor the legal representatives of the deceased
respondent had reported the death of the respondent to
the court and the court has not given notice of such
death to the appellant;
(iii) The appellant avers that he was unaware of
the death of the respondent and there is no material to
doubt or contradict his claim.
20. If, as in this case, the appeal was admitted in
1993 and did not come up for hearing till 2005, and the
respondent died in between, the court should not punish
the appellant for his ignorance of the death of the
respondent, by refusing to set aside the abatement. Lack
of diligence or negligence can be attributed to an
appellant only when he is aware of the death and fails
to take steps to bring the legal representatives on
record. Where the appellant being unaware of the death
of the respondent, does not take steps to bring the legal
representatives on record, there can be no question of
any want of diligence or negligence.
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21. In this case, the appeal was not being listed
periodically by the High Court. Neither the counsel for
the deceased second respondent in the High Court, nor
the legal representatives of the deceased respondent
reported her death to the High Court. There was no
notice of death to the appellant. The appellant is an
institution which acts through its Managing Committee.
During the relevant period, there was transition of
management from a Court Receiver to an elected
Managing Committee. An affidavit was filed on behalf
of the appellant that its new committee was unaware of
the pendency of the appeal. Being unaware of the
pendency of appeal is equivalent to being unaware of
the death of a respondent. This may happen in two
circumstances. First is where the appellant himself is
dead and his LRs have newly come on record. Second
is where the appellant is an institution or company and
a new committee or Board of Management takes over
its management. In such an event, even if they knew
about the death of a person, they may not know the
significance or relevance of death of such a person with
reference to a pending appeal if they do not know about
the appeal. As the appeal had already been admitted in
1993, and as hearing dates were not fixed periodically,
the new committee had no way of knowing that the
appeal was pending, that Bhargavi Amma was a party
to the appeal and that the legal representatives of the
deceased Bhargavi Amma (the second respondent
before the High Court) had not been brought on record.
In the circumstances, we are of the view that the delay
was satisfactorily explained. The High Court ought to
have condoned the delay, set aside the abatement and
permitted the appellant to bring the legal
representatives of the deceased respondent on record.
Considered the aforesaid all the three interlocutory applications, reply
filed by the respondents and the cases laws cited by both the learned counsel
for the parties.
Perused the order sheet. Although there is substantial delay in filing
the applications for substitution but looking to the listing dates as well as
change of the counsel and the fact that no application was filed by
respondent's counsel for L.Rs. under Order -22 Rule 10-A of CPC, therefore,
in the fact and situation to entitle the appellants and respondents' L.Rs. to
argue their case in which the trial court decreed the suit of the plaintiffs but
the learned first appellate court allowed the appeal, it seems reasonable to
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allow the applications on certain terms.
It is seen that both the parties are relatives and are fighting for the
rights regarding management and control of a temple, therefore, Delay is
condoned and abatement is set aside and permission is granted to bring L.Rs.
of respondent no.1 on record subject to payment of cost of Rs.5000/-, (out of
which Rs.2000/- to be deposited in the High Court Legal Aid Authority and
Rs.3000/- to be paid to the respondents) all the aforesaid three applications
are allowed.
Let the necessary amendment be carried out within seven working
days.
On 13.4.2024, arguments were heard on I.A. No.12875 of 2022 for
restoration of the appeal against respondent no. 2, who had expired.
After due consideration, I.A. No.12875 of 2022 is also allowed.
List after two weeks.
(AVANINDRA KUMAR SINGH)
JUDGE
bks
