Rajasthan High Court

R S R T C vs Bhagwan Sahai on 13 December, 2022

Bench: Mahendar Kumar Goyal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Second Appeal No. 659/2009

1.     Rajasthan State Road Transport Corporation, Headquarter,
       Jaipur Through Managing Director
2.     Chief    Manager,        Rajasthan          State        Road   Transport
       Corporation, Vidyadhar Nagar Aagar, Jaipur
3.     General Manager (Store), Appellate Officer, Rajasthan
       State Road Transport Corporation, Headquarter, Jaipur
                                                  ----Defendants/Appellants
                                   Versus
Bhagwan Sahai Kedawat S/o Shri Madan Lal Kedawat, Ex-Deputy
Store Inspector, Rajasthan State Road Transport Corporation,
Vidhyadhar Nagar Aagar, Jaipur R/o H.no. 2688, Jailal Munshi Ka
Rasta, Chandpole Bazar, Jaipur
                                                      ----Plaintiff/Respondent

For Appellant(s) : Mr. Om Prakash Sheoran For Respondent(s) : Mr. Babul Lal Gupta

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 13/12/2022

S.B. Civil Misc. Applications No.1/2022 & 2/2022:

In the present case, respondent-Bhagwan Sahai Kedawat has

expired on 25.08.2017 and an application for taking his legal

representatives on record has been filed by the appellant-

corporation on 23.03.2022 along with an application under Order

22 Rule 9 CPC read with Section 5 of the Limitation Act, 1963 (for

brevity, "the Act of 1963") seeking condonation of delay in

preferring the application and setting aside the abatement.

Learned counsel for the appellants contends that as soon as

they came to know about death of the respondent on receipt of a

copy of the misc. application filed in the pending execution

petition in the Civil Court, they immediately and without further

(2 of 5) [CSA-659/2009]

delay, moved the application for taking his legal representatives

on record. He, therefore, prays for setting aside the abatement,

condonation of delay and for taking legal representatives of

deceased-respondent on record. He, in support of his submissions,

relies upon a copy of the misc. application dated 03.11.2017 filed

under Order 22 Rule 3 CPC by the legal representatives of

deceased-respondent decree holder in the pending execution.

Heard. Considered.

Indisputably, the appellant-corporation came to know of

death of respondent-Shri Bhagwan Sahai Kedawat and details of

his legal representatives way back on 03.11.2017 on receipt of a

copy of the application filed by his legal representatives under

Order 22 Rule 3 CPC in the pending execution petition. Moreover,

in the second appeal also, learned counsel for the respondent has

filed an application dated 03.11.2017 under Order 22 Rule 10-A

CPC conveying intimation about his death and details of his legal

representatives. A copy of the application was duly received by

the learned counsel for the appellants as is apparent from the

endorsement on it. However, the application for taking his legal

representatives on record as also the application under Section 5

of the Act of 1963 read with Order 22 Rule 9 CPC, have been filed

as late as on 23.03.2022. The explanation furnished in the

application is not satisfactory at all wherein, it has been stated

that immediately on receipt of the information about death of the

respondent and without further delay, the applications are being

moved for setting aside the abatement, condonation of delay and

taking legal representatives on record. The Hon'ble Supreme Court

of India has, in case of Balwant Singh (Dead) Vs. Jagdish

Singh & Ors.:(2010) 8 SCC 685, held as under:

(3 of 5) [CSA-659/2009]

"32. It must be kept in mind 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.

33. Furthermore, it is also a well-settled canon of interpretative jurisprudence that the Court should not give such an interpretation to 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 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 of the 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 Edition, 1997]

35. The expression `sufficient cause' implies the presence of legal and adequate reasons. The word `sufficient' means adequate enough,

(4 of 5) [CSA-659/2009]

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.

36. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]."

Their Lordships have, in case of Lanka Venkateswarlu

(Dead) By Lrs. Vs. State of Andhra Pradesh & Ors.: (2011)

4 SCC 363, held as under:

"28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere

(5 of 5) [CSA-659/2009]

intemperate language, the High Court resorted to blatant sarcasms.

29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers."

Therefore, in the backdrop of the aforesaid judgments of the

Hon'ble Supreme Court of India, this Court does not find that the

appellants were prevented for sufficient reasons from moving the

application for setting aside the abatement, for condonation of

delay and for taking legal representatives of deceased-respondent

on record, in reasonable time. Since, the reason assigned for

delay in filing the application and seeking condonation of delay is

unsatisfactory and self contradictory, this Court does not deem it

just and proper to condone the inordinate delay in filing the

application and to set aside the abatement. The applications

No.1/2022 & 2/2022 are dismissed accordingly. Consequently, the

appeal also stands dismissed having abated.