IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1166 OF 2006

Balwant Singh         ….Petitioner

Versus

Jagdish Singh & Ors.          …Respondents

JUDGMENT

Swatanter Kumar, J.

1. The Learned Single Judge of the High Court  of  Punjab  

and Haryana at  Chandigarh  vide its  Judgment  dated  21st May,

2003 set aside the concurrent Judgment passed by the Appellate  

Authority,  Ambala,  dated  11th December,  2001  and  that  of  the  

Rent Controller dated 27th September, 2000, passing an order of  

ejectment  against  the  respondents  in  exercise  of  the  powers  

conferred under Section 15 of the Haryana Urban Rent (Control of  

Rent and Eviction) Act, 1973 (for short ‘the Act’).  The petition had  

been instituted by the landlord against the tenant on the ground of  

non-payment of rent.  The tenant had denied the relationship of  

landlord and tenant and even claimed title to the said property on  

the basis of an agreement dated 21st November, 1953 entered into  

between the predecessor in interest of the petitioner.  The ground  

taken for ejectment of the tenant in the eviction petition was non-

payment of rent which was only Rs. 200/- per month.  As already  

noticed, the judgment of the Appellate Authority was set aside by  

the High Court vide its judgment dated 21st May, 2003 and it is this  

judgment of the High Court which has been assailed by way of a  

Special Leave Petition before this Court.  The leave to appeal was  

granted by the Court vide order dated 13th February, 2006.

2. During the pendency of the appeal on 28th November, 2007,  

the sole petitioner died.  From the record, it appears that no steps  

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were taken  to  bring  on  record  the  legal  representatives  of  the  

deceased appellant for a considerable period of time on record.  

Somewhere on 15th April, 2010, I.A. No. 1 of 2010 has been filed  

along with I.A. No. 2 of 2010 praying for condonation of delay in  

filing the application for bringing the legal heirs on record.  As is  

evident from the above narrated facts, the appellant died on 28th  

November, 2007 while the present applications have been filed on  

or about 15th April, 2010.  Thus, there is delay of 778 days in filing  

these applications.  The application for condonation of delay was  

seriously contested on behalf of the non-applicants.  It was argued  

that  no sufficient  cause or  even a reasonable  cause has been  

shown for condoning the delay of more than two years and the  

appeal has already abated.  The application, besides being vague  

at the face of it, contains untrue averments.  As such, it is prayed  

that  the application should be dismissed and consequently,  the  

appeal would not survive for consideration.

3. Firstly, we have to deal with I.A. No. 2 of 2010, which is an  

application  for  condonation  of  delay in  filing  the  application  for  

bringing  the  legal  representatives  on  record.   The  Learned  

Counsel appearing for the applicant stated that though no specific  

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provision  had  been  stated  in  the  headings  of  any  of  the  

applications,  I.A.  No.  1  of  2010  should  be  treated  as  an  

application under Order 22 Rule 3 read with Section 151, of Code  

of Civil Procedure (hereinafter referred to as ‘CPC’) while I.A. No.  

2 of 2010 should be treated as an application under Order 22 Rule  

9 read with Section 5 of the Limitation Act, 1962.

4. At the very outset, we may notice that the delay in filing the  

application I.A.  No. 1 of  2010 is  considerable  and it  cannot  be  

disputed  that  the  onus  to  show that  sufficient  cause  exists  for  

condonation of delay lies upon the applicant.

5. It  is obligatory upon the applicant to show sufficient cause  

due to which he was prevented from continuing to prosecute the  

proceedings in the suit or before the higher Court.  Here there is  

admittedly, a delay of 778 days in filing the application for bringing  

the  legal  representative  on  record.   To  explain  this  delay,  the  

applicant has filed a one page application stating that they were  

not  aware of  the pendency of  the appeal before the Court  and  

came to know, only in March,  2010 from their  counsel  that  the  

case would be listed for final disposal during the vacations in May,  

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2010.  Then the applications, as already noticed, were filed on 15th  

April, 2010.  In order to examine the reliability and worthiness of  

the  alleged  sufficient  cause  for  condonation  of  delay,  it  will  be  

appropriate to refer to paragraph 2 of the application which is the  

only relevant paragraph out of the four paragraph application:

“That the LRs. of the applicants are residing  on different  addresses  because  the  LRs.  of  the  appellant/deceased  are  in  service  and  they were not aware of the pendency of any  appeal before this  Hon’ble Court.   However,  when  the  letter  from  the  counsel  for  Sh.  Balwant  Singh  were  received  at  home  at  Ambala that the appeal is being listed for final  hearing during vacation in the month of May,  2010 then these LRs. came to know about the  pendency  of  the  appeal.   Thereafter  these  LRs.  contacted  the  counsel  in  the month  of  March,  2010  to  find  out  the  position  of  the  case.   When they contacted  the  counsel  at  New Delhi  these LRs.  the counsel  was told  about the death of Sh. Balwant Singh which  had taken place in November, 2007.  It  was  further  pointed  out  to  the  counsel  that  the  LRs. were not aware about the pendency of  the  appeal  in  this  Court  or  about  the  requirement of law to bring the LRs. on record  after  the death of  Balwant  Singh.   It  is  now  they  have  come  to  know  that  the  LRs.  of  Balwant Singh are required to be brought on  record otherwise the appeal would abate.”

6. It is clear from the bare reading of the above paragraph that  

the  applicants  were totally  callous  about  pursuing  their  appeal.  

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They have acted irresponsibly and even with negligence.  Besides  

this, they have not approached the Court with clean hands.  The  

applicant,  who  seeks  aid  of  the  Court  for  exercising  its  

discretionary power for condoning the delay, is expected to state  

correct facts and not state lies before the Court.  Approaching the  

Court with unclean hands itself, is a ground for rejection of such  

application.  In para 2 of the I.A. NO. 1 of 2010, it has been shown  

that all the legal representatives of the deceased are residents of  

9050/5, Naya Bas, Ambala City, (Haryana) and that there are no  

other legal heirs of the deceased.  However, in para 4 of the I.A.  

No. 2 of 2010, it has been stated that the LRs. of the deceased  

were in service and were not aware of the pendency of the appeal,  

implying that they were living at different places and the letter of  

the lawyer was received at  their  residential  address of  Ambala.  

The stand taken in one application contradicts the stand taken in  

the other application.  Furthermore, it is stated that they were not  

aware  of  the  pendency  of  the  appeal.   This,  again,  does  not  

appear to be correct inasmuch as one of the legal representatives  

of  the  deceased,  namely Har-Inder  Singh was examined in  the  

Trial Court as AW4, who is the son of the deceased.  It is difficult  

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for the Court to believe that the person who has been examined  

as a witness did not even take steps to find out the proceedings  

pending before  the  highest  Court  of  the  land.   Even the  letter,  

alleged to have been written by the counsel, has not been placed  

on record and the application  ex facie lacks bona fide.  There is  

no explanation on record as to why the application was not filed  

immediately in March 2010, as they had come to know that the  

appeal was to be listed for hearing in the month of May, and still,  

till 15th April, 2010, no steps were taken to file the application.  The  

cumulative effect of the above conduct of the legal representatives  

of the sole deceased, appellant clearly shows that they have acted  

with callousness, irresponsibly and have not even stated true facts  

in the application for  condonation  of  delay.   The approach and  

conduct  of  the  applicants  certainly  would  invite  criticism.  

Moreover,  it  will  be  difficult  for  the  Court  to  exercise  its  

discretionary power in favour of the applicants.  There is not even  

a whisper in the entire application as to why, right from the death  

of  the deceased in November,  2007,  the appellant  did not  take  

any steps whatsoever till  15th April,  2010 to inform their counsel  

about  the  death  of  the  deceased  and  to  bring  the  legal  

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representatives  on record.

7. The counsel appearing for the applicant, while relying upon  

the judgment of this Court in the case of Ram Sumiran v. D.D.C.  

[(1985) 1 SCC 431], Mithailal Dalsangar Singh v. Annabai Devram  

Kini, [(2003) 10 SCC 691] and Ganeshprasad Badrinarayan Lahoti  

v. Sanjeevprasad Jamnaprasad Chourasiya [(2004) 7 SCC 482]  

argued  that  this  Court  should  take  a  liberal  view  and  should  

condone the delay, irrespective of the above facts and in all these  

judgments the delay has been condoned by the Court.   As per  

contra, the submission of the counsel for the non-applicants is that  

the appeal has abated and no cause, much less sufficient,  has  

been shown for setting aside the abatement.  A right accrues in  

favour of the respondents in appeal and it will be unfair and unjust  

to  take  away  their  vested  right  on  such  flimsy  and  baseless  

grounds.  It  is a settled position of law that a suit  or an appeal  

abates automatically if the legal representatives, particularly of the  

sole  plaintiff  or  appellant,  are  not  brought  on record  within  the  

stipulated period.   Rule 1 of Order 22,  CPC mandates that  the  

death of a defendant or a plaintiff shall not cause the suit to abate  

if the right to sue survives.  In other words, in the event of death of  

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a party,  where the right  to  sue does not  survive,  the suit  shall  

abate and come to an end.  In the event the right to sue survives,  

the concerned party is expected to take steps in accordance with  

provisions  of  this  Order.   Order  22  Rule  3,  CPC  therefore,  

prescribes that where the plaintiff  dies and the right to sue has  

survived,  then  an  application  could  be  filed  to  bring  the  legal  

representatives of the deceased plaintiff/appellant on record within  

the time specified (90 days).  Once the proceedings have abated,  

the  suit  essentially  has  to  come  to  an  end,  except  when  the  

abatement is set aside and the legal representatives are ordered  

to be brought on record by the Court of Competent jurisdiction in  

terms of Order 22 Rule 9 (3), CPC.  Order 22 Rule 9 (3) of the  

CPC  contemplates  that  provisions  of  Section  5  of  the  Indian  

Limitation Act, 1963 shall apply to an application filed under Sub  

Rule 2 of Rule 9 of Order 22, CPC.  In other words, an application  

for setting aside the abatement has to be treated at par and the  

principles enunciated for condonation of delay under Section 5 of  

the  Limitation  Act  are to  apply  para materia.   Section  3 of  the  

Limitation Act requires that suits or proceedings instituted after the  

prescribed  period of  limitation  shall  be dismissed.   However,  in  

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terms of Section 5, the discretion is vested in the Court to admit  

an  appeal  or  an  application,  after  the  expiry  of  the  prescribed  

period of limitation, if the appellant shows ‘sufficient cause’ for not  

preferring  the  application  within  the  prescribed  time.   The  

expression ‘sufficient cause’ commonly appears in the provisions  

of Order 22 Rule 9 (2), CPC and Section 5 of the Limitation Act,  

thus categorically demonstrating that  they are to be decided on  

similar grounds.  The decision of such an application has to be  

guided by similar precepts.  It will be appropriate for us to trace  

the  law  enunciated  by  this  Court  while  referring,  both  the  

provisions of Order 22 Rule 9, CPC and Section 5 of the Limitation  

Act.  In the case of Union of India v. Ram Charan, [AIR 1964 SC  

215], a three Judge Bench of this Court was concerned with an  

application filed under Order 22 Rule 9, CPC for bringing the legal  

representatives of the deceased on record beyond the prescribed  

period  of  limitation.   The  Court  expressed  the  view that  mere  

allegations about belated knowledge of death of the opposite party  

would  not  be  sufficient.   The  Court  applied  the  principle  of  

‘reasonable time’ even to such situations.  While stating that the  

Court was not to invoke its inherent powers under Section 151,  

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C.P.C. it expressed the view that the provisions of Order 22 Rule  

9, CPC should be applied.  The Court held as under:

“8.  There  is  no question  of  construing  the  expression  ‘sufficient  cause’  liberally  either  because  the  party  in  default  is  the  Government or because the question arises in  connection  with  the  impleading  of  the  legal  representatives of the deceased respondent.  The provisions of the Code are with a view to  advance the cause of justice.  Of course, the  Court,  in  considering  whether  the  appellant  has  established  sufficient  cause  for  his  not  continuing the suit in time or for not applying  for the setting aside of the abatement within  time, need not be over-strict in expecting such  proof  of  the  suggested  cause  as  it  would  accept  for  holding  certain  fact  established,  both because the question does not relate to  the merits of the dispute between the parties  and because if the abatement is set aside, the  merits of the dispute can be determined while,  if the abatement is not set aside, the appellant  is deprived of his proving his claim on account  of his culpable negligence or lack of vigilance.  This, however, does not mean that the Court  should readily accept whatever the appellant  alleges to explain away his default.  It has to  scrutinize  it  and  would  be  fully  justified  in  considering the merits of the evidence led to  establish the cause for the appellant’s default  in applying within time for  the impleading of  the legal representatives of the deceased or  for setting aside the abatement.

xxx xxx xxx

10.…The procedure, requires an application  for the making of the legal representatives of  

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the deceased plaintiff or defendant a party to  the suit.  It does not say who is to present the  application.  Ordinarily it would be the plaintiff  as by the abatement of the suit the defendant  stands  to  gain.   However,  an  application  is  necessary to be made for the purpose.  If no  such  application  is  made  within  the  time  allowed by law, the suit abates so far as the  deceased plaintiff is concerned or as against  the deceased defendant.  The effect of such  an  abatement  on  the  suit  of  the  surviving  plaintiffs  or  the  suit  against  the  surviving  defendants depends on other considerations  as  held  by this  Court  in  State  of  Punjab  v.  Nathu  Ram,  [AIR  1962  SC 89  and  Jhanda  Singh  v.  Gurmukh  Singh,  C.A.  No.  344  of  1956,  D/-  10-4-1962  (SC).   Any  way,  that  question  does  not  arise  in  this  case  as  the  sole respondent had died.

xxx xxx xxx

12.…The legislature  further  seems to have  taken into  account  that  there  may be cases  where the plaintiff may not know of the death  of the defendant  as ordinarily expected and,  therefore, not only provided a further period of  two months under Art.  171 for an application  to  set  aside  the  abatement  of  the  suit,  but  also made the provisions of Section 5 of the  Limitation Act applicable to such applications.  Thus the plaintiff is allowed sufficient time to  make  an  application  to  set  aside  the  abatement  which,  if  exceeding  five  months,  be  considered  justified  by  the  Court  in  the  proved circumstances of the case.  It  would  be  futile  to  lay  down  precisely  as  to  what  considerations  would  constitute  ‘sufficient  cause’ for setting aside the abatement or for  the  plaintiff’s  not  applying to  bring the  legal  

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representatives of the deceased defendant on  the record or  would be held to be sufficient  cause  for  not  making  an  application  to  set  aside  the  abatement  within  the  time  prescribed.  But it can be said that the delay  in the making of such applications should not  be  for  reasons  which  indicate  the  plaintiff’s  negligence in not  taking certain  steps which  he could have and should have taken.  What  would be such necessary steps would again  depend on the circumstances of a particular  case and each case will have to be decided  by the court on the facts and circumstances of  the  case.   Any  statement  of  illustrative  circumstances or facts can tend to be a curb  on the free exercise of its mind by the Court in  determining  whether  the  facts  and  circumstances of a particular case amount to  ‘sufficient cause’ or not.  Courts have to use  their  discretion  in  the  matter  soundly  in  the  interests of justice.”

8. In  the  case  of  P.K.  Ramachandran  v.  State  of  Kerala,  

[(1997) 7 SCC 556] where there was delay of 565 days in filing the  

first appeal by the State, and the High Court had observed, “taking  

into consideration the averments contained in the affidavit filed in  

support  of the petition to condone the delay, we are inclined to  

allow the petition”.  While setting aside this order, this Court found  

that the explanation rendered for condonation of delay was neither  

reasonable nor satisfactory and held as under:

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“3. It would be noticed from a perusal of  the  impugned  order  that  the  court  has  not  recorded any satisfaction that the explanation  for  delay  was  either  reasonable or  satisfactory, which is an essential prerequisite  to condonation of delay.

4.  That  apart,  we  find  that  in  the  application  filed  by  the  respondent  seeking  condonation of delay, the thrust in explaining  the delay after 12.5.1995 is: “…..at that time the Advocate General’s office  was fed up with so many arbitration matters  (sic)  equally  important  to  this  case  were  pending  for  consideration  as  per  the  directions  of  the  Advocate  General  on  2.9.1995.”

5.  This  can  hardly  be  said  to  be  a  reasonable,  satisfactory  or  even  a  proper  explanation for seeking condonation of delay.  In  the  reply  filed  to  the  application  seeking  condonation of delay by the appellant  in the  High  Court,  it  is  asserted  that  after  the  judgment and decree was pronounced by the  learned  Sub-Judge,  Kollam  on  30-10-1993,  the  scope  for  filing  of  the  appeal  was  examined by the District Government Pleader,  Special  Law Officer,  Law Secretary  and the  Advocate  General  and  in  accordance  with  their opinion, it was decided that there was no  scope  for  filing  the  appeal  but  later  on,  despite  the  opinion  referred  to  above,  the  appeal  was  filed  as  late  as  on  18.1.1996  without disclosing why it was being filed.  The  High Court does not appear to have examined  the reply filed by the appellant as reference to  the same is conspicuous by its absence from  the  order.   We  are  not  satisfied  that  in  the  facts  and  circumstances  of  this  case,  any  

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explanation,  much  less  a  reasonable  or  satisfactory  one  had  been  offered  by  the  respondent-State  for  condonation  of  the  inordinate delay of 565 days.

6. Law of limitation may harshly affect a  particular party but it has to be applied with all  its rigour when the statute so prescribed and  the courts have no power to extend the period  of  limitation  on  equitable  grounds.   The  discretion  exercised by the High Court  was,  thus, neither proper nor judicious.  The order  condoning  the  delay  cannot  be  sustained.  This  appeal,  therefore,  succeeds  and  the  impugned order is set aside.  Consequently,  the application for condonation of delay filed  in  the  High Court  would stand rejected  and  the  miscellaneous  first  appeal  shall  stand  dismissed as barred by time.  No costs.”

9. In the case of Mithailal Dalsangar Singh (supra), a Bench of  

this Court had occasion to deal with the provisions of Order 22  

Rule 9, CPC and while enunciating the principles controlling the  

application of and exercising of discretion under these provisions,  

the Court reiterated the principle that the abatement is automatic  

and not  even a specific  order  is  required  to  be passed by the  

Court in that behalf.  It would be useful to reproduce paragraph 8  

of  the  said  judgment  which  has  a  bearing  on  the  matter  in  

controversy before us:

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“8.  Inasmuch as the abatement results  in denial of hearing on the merits of the case,  the  provision  of  abatement  has  to  be  construed  strictly.   On  the  other  hand,  the  prayer for setting aside an abatement and the  dismissal  consequent  upon  an  abatement,  have  to  be  considered  liberally.   A  simple  prayer  for  bringing  the  legal  representatives  on  record  without  specifically  praying  for  setting  aside  of  an  abatement  may  in  substance  be  construed  as  a  prayer  for  setting aside the abatement.  So also a prayer  for setting aside abatement as regards one of  the plaintiffs can be construed as a prayer for  setting aside the abatement of the suit in its  entirety.  Abatement of suit for failure to move  an  application  for  bringing  the  legal  representatives  on  record  within  the  prescribed  period  of  limitation  is  automatic  and  specific  order  dismissing  the  suit  as  abated is not  called for.   Once the suit  has  abated as a matter of law, though there may  not  have been  passed  on  record  a  specific  order  dismissing the  suit  as abated,  yet  the  legal representatives proposing to be brought  on record or any other applicant proposing to  bring  the  legal  representatives  of  the  deceased  party  on  record  would  seek  the  setting aside of an abatement.   A prayer for  bringing the legal representatives on record, if  allowed,  would  have  the  effect  of   setting  aside  the  abatement  as  the  relief  of  setting  aside abatement though not asked for in so  many words is in effect being actually asked  for and is necessarily implied.  Too technical  or pedantic an approach in such cases is not  called for.”

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10. Another Bench of this Court in a recent judgment of Katari  

Suryanarayana  v.  Koppisetti  Subba  Rao,  [AIR  2009  SC 2907]  

again  had  an  occasion  to  construe  the  ambit,  scope  and  

application of the expression ‘sufficient cause’.  The application for  

setting  aside the abatement  and bringing the  legal  heirs  of  the  

deceased on record was filed in that  case after  a considerable  

delay.  The explanation rendered regarding the delay of 2381 days  

in filing the application for condonation of delay and 2601 days in  

bringing the legal representatives on record was not found to be  

satisfactory.  Declining the application for condonation of delay,  

the  Court,  while  discussing  the  case  of  Perumon  Bhagvathy  

Devaswom v. Bhargavi Amma [(2008) 8 SCC 321] in its para 9  

held as under:

“11. 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  bona  fides,  deliberate inaction or negligence on the part  of the appellant.”

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11. The  Learned  Counsel  appearing  for  the  applicant,  while  

relying upon the cases of Ram Sumiran, Mithailal Dalsangar Singh  

and Ganeshprasad Badrinarayan Lahoti  (supra),  contended that  

the  Court  should  adopt  a  very  liberal  approach  and  the  delay  

should be condoned on the mere asking by the applicant.  Firstly,  

none of these cases is of much help to the applicant.  Secondly, in  

the case of Ram Sumiran (supra), the Court has not recorded any  

reasons  or  enunciated  any  principle  of  law  for  exercising  the  

discretion.  The Court, being satisfied with the facts averred in the  

application  and  particularly  giving  benefit  to  the  applicant  on  

account  of  illiteracy  and  ignorance,  condoned  the  delay  of  six  

years in filing the application.  This judgment cannot be treated as  

a precedent in the eyes of the law.  In fact, it was a judgment on  

its own facts.

12. In the case of Ganeshprasad Badrinarayan Lahoti (supra),  

the  High  Court  had  rejected  the  application,  primarily,  on  the  

ground that no separate application had been filed for substitution  

and  for  setting  aside  the  abatement.   The Court  held  that  the  

principles of res judicata were not applicable and the application  

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could  be  filed  at  a  subsequent  stage.   Thus,  the  delay  was  

condoned.  We must notice here that the earlier judgments of the  

equi  benches  and  even  that  of  larger  benches  (three  Judge  

Bench) in the case of Ram Charan (supra) were not brought to the  

notice of the Court.   Resultantly,  the principles of law stated by  

this  Court  in  its  earlier  judgments  were  not  considered  by  the  

Bench  dealing  with  the  case  of  Ganeshprasad  Badrinarayan  

Lahoti (supra).

13. As  held  by  this  Court  in  the  case  of  Mithailal  Dalsangar  

Singh (supra), the abatement results in the denial of hearing on  

the  merits  of  the  case,  the  provision  of  abatement  has  to  be  

construed strictly.  On the other hand, the prayer for setting aside  

an abatement and the dismissal consequent upon an abatement,  

have to be construed liberally.  We may state that even if the term  

‘sufficient  cause’  has  to  receive  liberal  construction,  it  must  

squarely  fall  within  the  concept  of  reasonable  time  and  proper  

conduct of the concerned party.  The purpose of introducing liberal  

construction  normally  is  to  introduce  the  concept  of  

‘reasonableness’  as  it  is  understood  in  its  general  connotation.  

The  law  of  limitation  is  a  substantive  law  and  has  definite  

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consequences  on  the  right  and  obligation  of  a  party  to  arise.  

These principles should be adhered to and applied appropriately  

depending on the facts and circumstances of a given case.   Once  

a valuable right, as accrued in favour of one party as a result of  

the  failure  of  the  other  party  to  explain  the  delay  by  showing  

sufficient  cause and its own conduct,  it  will  be unreasonable to  

take  away  that  right  on  the  mere  asking  of  the  applicant,  

particularly  when  the  delay  is  directly  a  result  of  negligence,  

default  or  inaction  of  that  party.  Justice  must  be  done to  both  

parties equally. Then alone the ends of justice can be achieved.  If  

a party has been thoroughly negligent in implementing its rights  

and remedies, it will be equally unfair to deprive the other party of  

a valuable right  that  has accrued to it  in law as a result  of  his  

acting  vigilantly.   The application filed by the applicants  lack in  

details.   Even the averments made are not correct  and  ex-facie  

lack bona fide.  The explanation has to be reasonable or plausible,  

so  as  to  persuade  the  Court  to  believe  that  the  explanation  

rendered  is  not  only  true,  but  is  worthy  of  exercising  judicial  

discretion in favour of the applicant.  If it does not specify any of  

the enunciated ingredients  of  judicial  pronouncements,  then the  

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application  should  be  dismissed.   On  the  other  hand,  if  the  

application  is  bona  fide  and  based  upon  true  and  plausible  

explanations,  as well  as reflect  normal  behaviour of  a common  

prudent  person  on  the  part  of  the  applicant,  the  Court  would  

normally tilt the judicial discretion in favour of such an applicant.  

Liberal construction cannot be equated with doing injustice to the  

other party.  In the case of State of Bihar v. Kameshwar Prasad  

Singh [(2000) 9 SCC 94], this Court had taken a liberal approach  

for  condoning  the  delay  in  cases  of  the  Government,  to  do  

substantial justice.  Facts of that case were entirely different  as  

that was the case of fixation of seniority of 400 officers and the  

facts were required to be verified.  But what we are impressing  

upon is that delay should be condoned to do substantial  justice  

without resulting in injustice to the other party.  This balance has  

to be kept in mind by the Court while deciding such applications.  

In the case of Ramlal and Others v. Rewa Coalfields Ltd.,  [AIR  

1962 SC 361] this Court took the view:

“7. In construing Section 5 it is relevant  to bear in mind two important considerations.  The first consideration is that the expiration of  the period of limitation prescribed for making  an appeal gives rise to a right in favour of the  decree holder to treat the decree as binding  

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between the  parties.   In  other  words,  when  the period of limitation prescribed has expired  the  decree-holder  has  obtained  a  benefit  under the law of limitation to treat the decree  as  beyond  challenge,  and  this  legal  right  which  has  accrued  to  the  decree  holder  by  lapse  of  time  should  not  be  light  heartedly  disturbed.   The  other  consideration  which  cannot be ignored is that if sufficient cause for  excusing delay is shown discretion is given to  the  Court  to  condone  delay  and  admit  the  appeal.  This discretion has been deliberately  conferred  on the  Court  in  order  that  judicial  power and discretion in that behalf should be  exercised to advance substantial justice.  As  has been observed by the Madras High Court  in Krishna v. Chathappan, ILR 13 Mad 269.

It  is  however,  necessary to emphasize  that  even  after  sufficient  cause  has  been  shown  a  party  is  not  entitled  to  the  condonation of delay in question as a matter  of right.  The proof of a sufficient cause is a  condition  precedent  for  the  exercise  of  the  discretionary jurisdiction vested in the court by  Section  5.   If  sufficient  cause  is  not  proved  nothing further has to be done; the application  for condoning delay has to be dismissed on  that  ground  alone.   If  sufficient  cause  is  shown then the Court has to enquire whether  in its discretion it  should condone the delay.  This aspect of the matter naturally introduces  the consideration of all relevant facts and it is  at this stage that diligence of the party or its  bona fides may fall for consideration;…”       

14. In the case of Union of India v. Tata Yodogawa Ltd., [1988  

(38) Excise Law Times 739 (SC)], this Court while granting some  

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latitude to the Government in relation to condonation of delay, still  

held that there must be some way or attempt to explain the cause  

for such delay and as there was no whisper to explain what legal  

problems  occurred  in  filing  the  Special  Leave  Petition,  the  

application for condonation of delay was dismissed.  Similarly, in  

the case of Collector of Central Excise, Madras v. A.MD. Bilal &  

Co., [1999 (108) Excise Law Times 331 (SC)], the Supreme Court  

declined to  condone the delay of  502 days in  filing  the  appeal  

because  there  was  no  satisfactory  or  reasonable  explanation  

rendered for condonation of delay.  The provisions of Order 22  

Rule 9, CPC has been the subject matter of judicial scrutiny for  

considerable time now.  Sometimes the Courts have taken a view  

that  delay should  be condoned  with  a liberal  attitude,  while on  

certain  occasions  the  Courts  have  taken  a  stricter  view  and  

wherever the explanation was not satisfactory, have dismissed the  

application for condonation of delay.  Thus, it is evident that it is  

difficult to state any straight-jacket formula which can uniformly be  

applied to all  cases without  reference  to the peculiar  facts  and  

circumstances  of  a  given  case.   It  must  be  kept  in  mind  that  

whenever a law is enacted by the legislature, it is intended to be  

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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.   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.  

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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] The  expression  ‘sufficient  

cause’ implies the presence of legal and adequate reasons.  The  

word ‘sufficient’  means  adequate  enough,  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  

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enacting  such  a  law  does  not  stand  frustrated.   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]

15. We feel that it would be useful to make a reference to the  

judgment of this Court in Perumon Bhagvathy Devaswom (supra).  

In this case, the Court, after discussing a number of judgments of  

this  Court  as  well  as  that  of  the  High  Courts,  enunciated  the  

principles  which  need  to  be  kept  in  mind  while  dealing  with  

applications  filed  under  the  provisions  of  Order  22,  CPC along  

with an application under Section 5, Limitation Act for condonation  

of  delay  in  filing  the  application  for  bringing  the  legal  

representatives on record.  In paragraph 13 of the judgment, the  

Court held as under:-

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“13  (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 the 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  bona  fides,  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  aside  abatement,  than  other  cases.  While the court will have to keep in view that a  valuable  right  accrues  to  the  legal  representatives  of  the  deceased  respondent  when the appeal abates, it will not punish an  appellant  with  foreclosure  of  the  appeal,  for  unintended  lapses.   The  courts  tend  to  set  aside abatement  and decided the matter  on  merits.   The  courts  tend  to  set  aside  abatement  and decide the matter  on merits,  rather  than  terminate  the  appeal  on  the  ground of abatement.   

(iii) The decisive factor in condonation of  delay,  is  not  the  length  of  delay,  but  sufficiency of a satisfactory explanation.

(iv) The extent or degree of leniency to  be shown by a court depends on the nature of  application  and  facts  and  circumstances  of  the case.  For example, courts view delays in  making applications in a pending appeal more  leniently  than  delays  in  the  institution  of  an  

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appeal.  The courts view applications relating  to  lawyer’s  lapses  more  leniently  than  applications relating to litigant’s lapses.  The  classic example is the difference in approach  of  courts  to  applications  for  condonation  of  delay in filing an appeal and applications for  condonation  of  delay  in  re-filing  the  appeal  after rectification of defects.

(v) Want of “diligence” or “inaction” can  be  attributed  to  an  appellant  only  when  something required to be done by him, is not  done.  When nothing is required to be done,  courts  do  not  expect  the  appellant  to  be  diligent.  Where an appeal is admitted by the  High Court and is not expected to be listed for  final hearing for a few years, an appellant is  not  expected to visit  the court  or  his  lawyer  every few weeks to ascertain the position nor  keep  checking  whether  the  contesting  respondent is alive.  He merely awaits the call  or  information  from  his  counsel  about  the  listing of the appeal.

We  may  also  notice  here  that  this  judgment  had  been  

followed with approval by an equi-bench of this Court in the case  

of Katari Suryanarayana (supra)

16. Above are the principles which should control the exercise of  

judicial discretion vested in the Court under these provisions.  The  

explained delay should be clearly understood in contradistinction  

to  inordinate  unexplained  delay.   Delay  is  just  one  of  the  

ingredients which has to be considered by the Court. In addition to  

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this,  the  Court  must  also  take  into  account  the  conduct  of  the  

parties, bona fide reasons for condonation of delay and whether  

such delay could easily be avoided by the applicant acting with  

normal care and caution.  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.  An applicant must  

essentially  satisfy  the  above stated  ingredients;  then  alone  the  

Court would be inclined to condone the delay in the filing of such  

applications.

17. On an analysis of the above principles, we now revert to the  

merits of the application in hand.  As already noticed, except for a  

vague averment that the legal representatives were not aware of  

the pendency of the appeal before this Court,  there is no other  

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justifiable reason stated in the one page application.   We have  

already held that the application does not contain correct and true  

facts.   Thus,  want  of  bona  fides  is  imputable  to  the  applicant.  

There is no reason or sufficient  cause shown as to what steps  

were taken during this period and why immediate steps were not  

taken by the applicant, even after they admittedly came to know of  

the pendency of the appeal before this Court.  It is the abnormal  

conduct on the part of the applicants, particularly Har-Inder Singh,  

who had appeared as AW4 in the trial and was fully aware of the  

proceedings, but still did not inform the counsel of the death of his  

father.  The cumulative effect of all these circumstances is that the  

applicants have miserably failed in showing any ‘sufficient cause’  

for  condonation  of  delay of  778 days in filing the application in  

question.

18. Thus, we have no hesitation in dismissing I.A.No.2 of 2010  

and  consequently,  I.A.No.1  of  2010  does  not  survive  for  

consideration  and  is  also  dismissed.   Resultantly,  the  appeal  

having already abated also stands dismissed.   However,  in the  

facts of the case, there shall be no orders as to costs.

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........................................J.  [ DR. B.S. CHAUHAN ]

........................................ J.

     [ SWATANTER KUMAR ]

New Delhi July 8,  2010.

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