2008 (7) TMI 836 - SC - Indian Laws

Whether the High Court ought to have condoned the delay and set aside the abatement 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. Held that - Allow the appeal. The delay is condoned. Abatement is set aside.

Summary

Issues Involved:
1. Application to set aside the abatement of the appeal against the second respondent.
2. Application to condone the delay in filing the application to set aside the abatement.
3. Application to bring on record the legal representatives (LRs) of the deceased second respondent.

Detailed Analysis:

Issue 1: Application to Set Aside the Abatement
The appellant filed an application to set aside the abatement of the appeal against the second respondent, who died during the pendency of the appeal. According to Order 22 Rule 4 of the CPC, if a respondent dies and the right to sue survives, the court must bring the legal representative of the deceased respondent on record. If no application is made within the prescribed period, the appeal abates by operation of law. The High Court dismissed the application due to an unexplained delay of 394 days.

Issue 2: Application to Condone the Delay
The appellant also filed an application to condone the delay in filing the application to set aside the abatement. The High Court dismissed this application, finding the explanation for the delay unsatisfactory. The appellant argued that the delay was due to a change in the management of the Devoswom, which was initially managed by a Receiver and later by a newly elected Committee unaware of the pending appeal. The Supreme Court emphasized that the words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal interpretation to advance substantial justice, especially when no negligence or inaction is imputable to the appellant.

Issue 3: Application to Bring LRs on Record
The appellant sought to bring on record the legal representatives of the deceased second respondent. The High Court dismissed this application as a consequence of dismissing the previous two applications. The Supreme Court highlighted that under Rule 10A of Order 22, the duty lies on the counsel for the deceased respondent to inform the court about the death, and the court should notify the appellant. The appellant claimed ignorance of the death, which was not contradicted by any material evidence.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's orders dismissing the three applications and the consequential order closing the appeal as having abated. The delay was condoned, the abatement was set aside, and the appellant was permitted to bring the legal representatives of the deceased respondent on record. The High Court was directed to hear the appeal on merits. The principles for condoning delay and setting aside abatement were reiterated, emphasizing a liberal and pragmatic approach to advance substantial justice, particularly when the delay is not due to dilatory tactics, want of bona fides, or negligence.