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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: S.S. AKOLKAR

DATE OF JUDGMENT:       25/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1984            1996 SCC  (2) 568  JT 1996 (2)   286        1996 SCALE  (2)130

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted.      Heard learned counsel for both sides.      The respondent’s  Civil Suit  No.2-B of 1970 to recover Rs.20,644/- with  proportionate costs  was  decreed  by  the District Court, Mandsaur. First Appeal No.57/76 filed by the appellant was pending in the High Court. When the matter had come up  on March  16, 1983 for hearing, the counsel for the respondent had  informed that  the respondent  had  died  on December 31,  1980 and  he  gave  the  names  of  his  legal representatives. The  application for  substitution  of  the legal representatives  under Order 22, Rule 4 of the CPC was filed on  April 8,  1983, with  a  delay  of  15  days.  The applications for  setting  aside  abatment  and  delay  were dismissed by  the High  Court; consequently it dismissed the appeal. Hence, this appeal by special leave.      It  is  contended  by  Shri  Bachawat,  learned  senior counsel appearing for the State, that the delay was properly explained. In  the circumstances,  the High  Court  was  not justified in  refusing to  condone the delay on bringing the legal  representatives  on  record  and  setting  aside  the abatement. Shri Gambhir, learned counsel for the respondent, contended that  in spite  of the respondent’s counsel having informed the  counsel for  the State of the death and having given the  names of the legal representatives, no steps were taken and  no diligence was shown. The delay, therefore, was not properly explained. The High Court was right in refusing to condone  the delay.  The  High  Court  proceeded  on  the premise that  no explanation  was given for not taking steps to bring  legal representatives on record and even accepting that respondent  had come  to know  about the  death of  the plaintiff on  March 16, 1983, and though the application was signed on  April 7,  1983, the  application had  come to  be filed on  April 8,1983.  This would  show that  there was no

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diligence on  the part  of  the  respondent  and  no  proper explanation was given.      We find  that the approach of the High Court  is wholly untenable and unsustainable. Under order 22  Rule 10A, it is the duty  of the counsel, on coming to  know of the death of a party, to inform it to the Court  and the Court shall give notice to  the other  party of    the  death.  By  necessary implication delay  for substitution of legal representatives begins to  run   from the date of knowledge. It is notorious that in   Government  proceedings,  no  one  takes  personal responsibility and  each would  pass over the responsibility to the  other officer.  It is  common  knowledge that almost 50% of  the cases  filed in the  Supreme Court are barred by limitation. Delay  is   equally usual  in private cases. The Court examines   each  case on  merits. The  counsel for the respondent     had  informed  the  death  of  the  principal respondent Akolkar  on March  16, 1983.  It would be obvious that   counsel for  the State  has to intimate the concerned officer  who  in  turn  is  required  to  have  the  details ascertained  through   his  subordinates   by  deputing  the concerned officer to ascertain the further details of the legal  representatives and  feed the  officer  with  all factual  details.   In  the   process,  delay  would  occur. Accordingly, the  applications came  to be prepared on April 7, 1983  and were  filed next  day. It would be obvious that they had  acted with diligence in collecting the information and filing  the petitnon.  In the process, a short delay had occurred.      It  is   settled  law   that  the   consideration   for condonation of  delay under  Section 5 of Limitation Act and setting aside  of the  abatement under Order 22 are entirely distinct and different. The Court always liberally considers the latter,  though in  some case,  the Court  may refuse to condone the  delay under  Section 5  in filing  the appeals. After the  appeal has  been filed and is pending, Government is  not  expected  to  keep  watch  whether  the  contesting respondent 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.      Under these  circumstances, we  are of the opinion that the High  Court was  not right  in refusing to set aside the abatement and to condone the delay in filing of the petition to bring the by legal representatives on record.      The delay  is condoned.  The abatement is set aside and the legal  representatives are  brought on  record. The High Court is requested to dispose of the appeal as expeditiously as possible  within two  months from the date of the receipt of the order as this is very old appeal.      The appeal is allowed. No costs.