Smt. Najamunnisa Begum vs Mohammed Shoukath Ali
2022 Latest Caselaw 4886 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                     I.A. Nos.1, 2 and 3 of 2022
                               In/and
                         S.A.No.183 of 2013

COMMON ORDER :

        The application in I.A.No.1 of 2022 is filed seeking to

condone the delay of 2685 days in filing the petition, to set aside

the abatement of appeal caused due to the death of sole respondent.

2. I.A.No.2 of 2022 is filed to set aside the abatement of appeal

due to the death of sole respondent, whereas, I.A.No.3 of 2022 is

filed to bring on record the proposed respondent Nos.2 to 5 as the

legal representatives of the deceased/sole respondent.

3. Heard both sides and perused the record.

4. The affidavit accompanying the petition in I.A.No.1 of 2022

disclose that the present second appeal has been filed challenging

the judgment dated 14.11.2012, in A.S.No.62 of 2010 on the file of

Principal District Judge, Karimnagar, reversing the judgment and

decree dated 09.09.2010 in O.S.No.237 of 2004 on the file of

Senior Civil Judge, Karimnagar. It is stated that during the

GAC, J I.A.Nos.1, 2 & 3 of 2022 In/and S.A.No.183 of 2013

pendency of the Second Appeal, counsel for respondent has filed a

Memo before this Court on ....06.2022 informing that the sole

respondent died on 16.11.2012 and the details of legal heirs was

also enclosed to the said Memo. Basing on the said Memo, she has

filed I.A.No.3 of 2022 to bring on record the legal heirs of

deceased/sole respondent, however, with a delay of 2685 days.

5. Counter affidavit has been filed by the proposed respondent

Nos.2 to 5, stating that the contention of petitioner that she came to

know about the death of the sole respondent on 16.11.2012 only

through the Memo filed by the counsel for respondent on

....06.2022, is totally misconceived. It is contended that in the year

2013 itself, the petitioner was aware of the death of the sole

respondent, which is evident from the affidavit filed by the

petitioner herself in the stay application in February, 2013.

Therefore, they prayed for dismissal of I.A.No.1 of 2022, as the

inordinate delay of 2685 days cannot be condoned, as the petitioner

has failed to take any steps from the year 2013 for bringing on

record the legal representatives of sole respondent.

GAC, J I.A.Nos.1, 2 & 3 of 2022 In/and S.A.No.183 of 2013

6. It is relevant to mention that the Memo filed by the

respondent does not contain the date, except the month and year as

".....06.2022".

7. Now the point for consideration is:

Whether there exist sufficient grounds to condone the delay of 2685 days in filing the petition to set aside the abatement caused due to the death of sole respondent, as prayed for ?

8. POINT :

It is the case of the petitioner that she could not file the

petition for setting aside the abatement or petition to bring the legal

representatives on record, as she came to know that the sole

respondent died on 16.11.2012, only through the Memo filed by

the counsel for respondent before this Court on ....06.2022. The

said ground taken by the petitioner cannot be considered, as the

petitioner was aware about the death of the sole respondent in the

year 2013 itself, which is evident from her affidavit filed in

February, 2013 in the stay application in I.A.No.1 of 2013

(SAMP.No.447 of 2013), as under :

"I further submit that I received caveat petition on 01.01.2013 filed by some person stating that

GAC, J I.A.Nos.1, 2 & 3 of 2022 In/and S.A.No.183 of 2013

respondent herein died on 16.11.2012 and claiming as legal heirs of the respondent herein against the orders of 1st appeal court dated 14.11.2012".

From the above, it is clear that the petitioner had knowledge about

the death of sole respondent in the year 2013 itself, and inspite of

it, she failed to file the application for setting aside the abatement

within the stipulated time. The reasons, whatsoever, for the delay,

were not assigned by the petitioner in her affidavit filed along with

I.A.No.1 of 2022 for such huge delay of more than Seven years.

9. It is pertinent to mention here that condonation of delay is a

matter of discretion of the Court and Section 5 of the Limitation

Act does not say that such discretion can be exercised only if the

delay is within a certain limit. The length of delay is no matter, but

acceptability of explanation is the only criterion. In the present

case, the delay is not a day or two. The petitioner has kept quiet

for 2685 days without filing the petition for setting aside the

abatement and then she filed the present interlocutory application

in I.A.No.1 of 2022, seeking the Court to condone the said

inordinate delay. Though reasons for each day's delay need not be

specifically mentioned, but, at least proximate or reasonable cause

GAC, J I.A.Nos.1, 2 & 3 of 2022 In/and S.A.No.183 of 2013

should be shown for condoning such inordinate delay. Admittedly,

no party can approach the Court at their whims and fancies. In

the present case, the reasons assigned by the petitioner for

condoning the delay of 2685 days in filing the petition for setting

aside the abatement due to the death of sole respondent in the

appeal, are not at all tenable and the same do not come under the

expression "sufficient cause".

10. In this connection, it is relevant to refer to the decision of the

Hon'ble Supreme Court in D.Gopinathan Pillai v. State of

Kerala1, wherein, their Lordships at para (6), held as follows:

"There is no dispute in regard to the delay of 3320 days in filing the petition for setting aside the award. When a mandatory provision is not complied with and when the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay, only on the sympathetic ground. The orders passed by the learned Sub Judge and also by the High Court are far from satisfactory. No reason whatsoever has been given to condone the inordinate delay of 3320 days. It is well considered principle of law that the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason. Both the Courts have miserably failed to comply and follow the principle laid down by this Court in

AIR 2007 SC 2624

GAC, J I.A.Nos.1, 2 & 3 of 2022 In/and S.A.No.183 of 2013

catena of cases. We, therefore, have no other option except to set aside the order passed by the Sub Judge and as affirmed by the High Court. We accordingly set aside both the orders and allow this appeal."

11. Therefore, in view of the above discussion, and further, in

view of the law laid down by the Hon'ble Supreme Court in the

aforesaid decision, this Court is of the considered view that the

delay, as prayed for, cannot be condoned, as the petitioner has

failed to show any justifiable cause or valid reason for such

inordinate delay.

12. In the result, I.A.No.1 of 2022 is dismissed. Consequently,

I.A.Nos.2 and 3 of 2022 are also dismissed and S.A.No.183 of

2013 stands dismissed as abated. No order as to costs.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 26.09.2022

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