Rajasthan High Court - Jodhpur

Dhan Singh vs Lrs.Of Bhura Ram And Ors on 1 August, 2025

[2025:RJ-JD:33719]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Civil First Appeal No. 256/2011

Dhan Singh adopted son of Late Shri Ramjas (Natural son of Shri
Mani Ram) aged 68 years, resident of Village Narwasi, Tehsil
Rajgarh, District Churu.
                                                          ----Appellant/Defendant
                                        Versus
1. Shri Bhura Ram S/o Shri Mani Ram through his Legal
Representative;
     1/1 Smt. Sita Devi w/o Late Shri Bhura Ram
2.    Shri Phula Ram s/o Late Shri Mani Ram (deceased)
3.    Shri Mohar Singh s/o Shri Mani Ram
4.    Smt. Chandra Devi widow of Late Shri Jai Singh
5.    Shri Rishal Singh S/o Late Shri Jai Singh
6.    Shri Sanjay Kumar S/o Late Sh. Jai Singh
7.    Shri Sunil S/o Late Shri Jai Singh
      All resident of Village Narwasi, Tehsil Rajgarh, District Churu
                                                        ----Respondents/plaintiffs


For Appellant(s)              :     Mr. A.R. Godara
For Respondent(s)             :     Mr. Narendra Thanvi



     HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA

Order

01/08/2025

The matter comes upon an application (I.A. No.3/22) under

Order XXII Rule 3 read with Section 151 CPC which was filed on

05.07.2022 seeking to bring on record the legal representatives of

the deceased appellant, Dhan Singh, who expired during the

pendency of the present appeal on 08.10.2018. In support

thereof, the applicants have also filed an application (I.A. No.4/22)

under Order XXII Rule 9(2) along with an application under

Section 5 of the Limitation Act on 06.09.2022 praying for setting

[2025:RJ-JD:33719] (2 of 6) [CFA-256/2011]

aside the abatement of the appeal on account of the delay caused

in filing the substitution application.

2. The factual matrix of the case is that the original suit was

instituted by the respondents-plaintiffs seeking a declaration,

which came to be decreed in their favour by the learned trial Court

vide judgment and decree dated 18.05.2011. Aggrieved by the

said judgment and decree, the present appeal was preferred by

the appellant-defendant. During pendency of the appeal, the sole

appellant- Dhan Singh expired on 08.10.2018. As a consequence

thereof, an application (I.A. No.1/22) under Order XXII Rule 10(A)

CPC was filed by the respondents-plaintiffs on 12.04.2022 to bring

to the notice of the Court about the death of the sole appellant

with a prayer that the appeal may be declared as abated.

Thereafter, the present applications (I.A. Nos.3/22 and 4/22) have

been filed by the legal representatives of the deceased appellant

seeking setting aside the abatement of the appeal while condoning

the delay in filing the substitution application.

3. Learned counsel for the applicants submitted that the delay

in filing the substitution application was unintentional and solely

due to the negligence of their earlier counsel, who failed to ensure

that the application under Order XXII Rule 3 CPC, presented on

03.11.2018 was properly taken on record. It is contended that the

applicants acted in good faith and took prompt steps in filing

aforementioned application after the death of the sole appellant on

08.10.2018. However, due to omission on the part of previous

counsel, the application could not be traced out on record which is

reflected as per the office-note dated 24.08.2022. It is further

[2025:RJ-JD:33719] (3 of 6) [CFA-256/2011]

submitted that, upon obtaining the No Objection Certificate from

the previous counsel in March 2022, the Vakalatnama on behalf of

the legal representatives was submitted before the Registry on

28.03.2022, and the present applications were thereafter

promptly filed. Further, it is urged that the applicants should not

suffer for previous counsel's default and the procedural lapse

should not defeat the cause of substantial justice. Thus, it is

prayed that the application (I.A. No.3/22) may be allowed while

condoning the delay and the abatement of appeal against

deceased appellant may be set aside.

4. Per contra, learned counsel for the respondents-plaintiffs

argued that the delay of about four years in moving the

substitution application is inordinate, unexplained and unjustified.

It is contended that the applicants exhibited total indifference and

lack of diligence and cannot take shelter under the plea of

counsel's negligence when no steps were taken for such a

prolonged period. Further, learned counsel for the respondents-

plaintiffs relied on settled legal principles governing limitation and

abatement and prayed that the appeal may be dismissed as

having abated.

5. Having heard learned counsel for the parties and perused the

record, this Court proceeds to examine whether the delay in filing

the application under Order XXII Rule 3 CPC merits condonation.

6. The legal principles guiding the exercise of judicial discretion

under Section 5 of the Limitation Act are well-settled. The Hon'ble

[2025:RJ-JD:33719] (4 of 6) [CFA-256/2011]

Supreme Court, in Balwant Singh (Dead) v. Jagdish Singh &

Ors. [(2010) 8 SCC 685], observed as under:

"16. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay... The statutory provisions mandate that applications for condonation of delay and applications belatedly filed 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 filing 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. "

7. Applying the above dictum to the facts of the present case,

this Court finds that the explanation furnished by the applicants

does not meet the threshold of either sufficiency or good faith.

The applicants have merely made a vague claim of negligence on

the part of their previous counsel, without producing any affidavit

from the said counsel or any tangible evidence demonstrating

attempts to follow up on the application. There is a conspicuous

absence of diligence. No efforts appear to have been made for

nearly about four years to verify the status of the substitution

application or to make inquiries with the Registry. Even assuming

that instructions were indeed given in 2018, no prudent litigant

would remain silent and disconnected from the proceedings for

such an extended period.

8. Further, upon careful examination of material particulars on

record, this Court finds that the application under Order XXII Rule

3 CPC was filed without any explanation for the substantial delay,

and notably, without being accompanied by an application under

Section 5 of the Limitation Act seeking condonation thereof. It is

further observed that the subsequent application under Order XXII

[2025:RJ-JD:33719] (5 of 6) [CFA-256/2011]

Rule 9(2) CPC along with Section 5 of the Limitation Act was filed

nearly two months later, without offering any justification for the

intervening delay. This sequence of filings, devoid of timely and

proper explanation, reflects a lack of bonafides and does not

inspire confidence in the conduct of the applicants. Furthermore,

the attempt to attribute the delay to the inadvertence of their

previous counsel remains unsupported by any affidavit or material

from the said counsel. In the absence of such corroboration, the

explanation appears unsubstantiated and cannot be accepted at

its face value.

9. Further, this Court is also conscious of the well-settled

principle "dura lex sed lex" that a result flowing from a statutory

provision is never an evil. The statute of limitation, though it may

at times operate harshly against a particular party, is required to

be applied with full rigour when the law so mandates. Further, the

rationale underlying limitation laws is rooted in public policy. As

noted in Halsbury's Laws of England, Vol. 28, p. 266:

"The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."

Allowing proceedings to be revived after prolonged and

unexplained silence, would undermine certainty in legal

relationships and public confidence in judicial process. Limitation

statutes exist to prevent oppression, discourage negligent

litigation, and protect the integrity of adjudication. Statutory

limitation ensures certainty and bars claims that have become

stale due to a party's neglect or delay.

[2025:RJ-JD:33719] (6 of 6) [CFA-256/2011]

10. For the reasons stated above, this Court is of considered

opinion that no sufficient explanation is furnished by the

applicants for the inordinate delay in moving the substitution

application that would warrant condonation under Section 5 of the