9911796707
TMI Blog2008 (7) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay in filing the said application to set aside the abatement; and (iii) an application to bring on record, the LRs of the deceased second respondent in the second appeal. The High Court, being of the view that the delay of 394 days was not satisfactorily explained, dismissed the application for condonation of delay as also the application for setting aside the abatement and consequently, dismissed the application for bringing the LRs on record, by three separate orders dated 5.10.2005. As the deceased second respondent in the second appeal was the sole plaintiff in the original suit from which the second appeal arose, the second appeal was closed on 5.10.2005, as having abated. The said four orders are challenged in this appeal by special leave. 3. The appellant contends that there was no negligence or laches on its part and it had satisfactorily explained the reasons for the delay which were due to circumstances beyond its control. The appellant, a Devoswom managed by a Committee, gave the following explanation for the delay: When the second appeal was filed in 1993, it was managed by an earlier Managing Committee. Later in a suit relating to the management of the Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 days from the date of abatement. Section 5 of the Limitation Act provides that any application may be admitted after the prescribed period if the applicant satisfies the court that he had sufficient cause for not making the application within such period. 4.4) Sub-rule (5) of Rule 4 of Order 22 now gives a clear indication as to what will be sufficient cause. It provides that where the appellant was ignorant of the death of a respondent, and for that reason could not make an application for the substitution of the legal representative of the deceased respondent under Rule 4 within the time specified in the Limitation Act, 1963, and in consequence, the appeal has abated, and the appellant applies after the expiry of the period specified in the Limitation Act for setting aside the abatement and also for the admission of that application under section 5 of the Limitation Act, on the ground that he had by reason of such ignorance, sufficient cause for not making the application within the period specified in the Limitation Act, the court shall, in considering the application under section 5 of the Limitation Act, have due regard to the fact of such ignorance, if proved. 4.5) R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice ... Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... norance of death as sufficient cause for condonation of delay, (ii) the counsel for the deceased party to inform the court about the death of his client. In Ram Nath Sao vs. Gobardhan Sao [2002 (3) SCC 195] this Court observed thus: 12. Thus it becomes plain that the expression sufficient cause within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute sufficient cause or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent is alive or passed away. After the matter was brought to the notice of the counsel for the State, steps were taken even thereafter after due verification belated application came to be filed. It is true that Section 5 of Limitation Act would be applicable and delay is required to be explained. The delay in official business requires its broach and approach from public justice perspective. 8. The principles applicable in considering applications for setting aside abatement may thus be summarized 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 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 bonafides, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjournment of hearing . In fact, this Court in Ram Charan (supra) inferred that the limitation period for bringing the legal representative might have been fixed as 90 days keeping in mind the adjournment procedure: The legislature might have expected that 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. 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 10 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 14. 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 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 respondent, does not take steps to bring the legal representatives on record, there can be no question of any want of diligence or negligence. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
