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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NO. 4772    OF 2009 [Arising out of SLP(C) No. 8367/2008]

  DARIA LINO D'SA DIAS AND ORS. ... APPELLANT(S)

:VERSUS:

  ANTHONY D'SA AND ORS. ... RESPONDENT(S)

O R D E R

1. Leave granted.

2. The  appellant  is  before  us  aggrieved  by  and  dissatisfied  with  the  

judgment  and  order  dated  13th December,  2007  passed  by  the  High  Court  of  

Bombay  at  Goa  in  Civil  Revision  Application  No.  4  of  2007,  whereby  and  

whereunder a revision application filed by the respondents herein questioning the  

legality  and/or  validity  of  the  order  dated  1.2.2007  passed  by  the  learned  

Additional District Judge, Mapusa was set aside.  

3. The appellants herein are heirs and legal representatives of the original  

plaintiff  Maria  Menezes  D'Sa.  She  filed  a  suit  in  the  year  1982  against  the

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respondents herein praying inter alia for the following relief:

(a) The  plaintiff  and  Defendant  Nos.  3  to  13  be  decreed  and  

declared to be the rightful owners of the suit property. (b)  The defendant 1 may be decreed and ordered to vacate the  

structure admeasuring about 5 x 3 sq. mtrs. illegally built by  him in the suit property.  

(c) The Defendant No.1 be decreed and ordered to demolish the  said structure admeasuring 5 x 3 sq. mtrs. illegally built by him  

in the suit property.   (d) The Defendants 1 and 2 their agents, servants, Representatives  

and  all  other  persons  acting  for  and  on  their  behalf  be  restrained permanently by a Decree of Permanent Injunction,  

from  interfering  in  any  manner  with  the  possession  of  the  Plaintiff  and  Defendant  Nos.  3  to  13  of  the  suit  property  

including the residential house  existing therein or any portion  thereof.  

(e) Cost of this suit may be awarded. (f) Any other relief as the Hon’ble Court deems fit and proper.  

4. Despite the fact that the suit filed by the Plaintiff was not only for herself  

but also on behalf of the Defendant Nos. 3 to 13, the learned Trial Judge set the  

said suit for ex-parte hearing on 15.1.1997 so far as Defendant Nos. 3 to 11 were  

concerned and on 19.4.1997 so far as Defendant Nos. 12 & 13 were concerned. The  

Plaintiff died in England on 2.11.2004.  

5. The appellants  herein are  ordinarily  not  residents  in India  and reside  

abroad. They having come to learn about the pending proceeding, informed the

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Court about the death of the original Plaintiff on 7.3.2006. They, however, filed an  

application for setting aside the ex-parte decree on or about 6.7.2006.  The said  

application was dismissed. Thereafter, they filed an application for transposition of  

Defendant Nos. 3 to 13 to the category of plaintiff on 14.3.2006.  The learned Trial  

Judge allowed the said application.   

6. As noticed hereinbefore, the revision application filed thereagainst by the  

respondent has been allowed.  The Trial Court dismissed the application and an  

appeal was preferred thereagainst which was allowed.  The High Court, however,  

while  setting  aside  the  order  of  the  Trial  Court  placed  on  record  that  an  

application to bring on record the heirs and legal representatives of the Plaintiff  

should be filed  within 90 days from the date of death of the plaintiff and if such an  

application is not filed within the aforementioned period, an application for setting  

aside the abatement has to be filed within 60 days thereafter, on the premise that  

the said period had lapsed and furthermore no sufficient cause was shown for  

condonation of delay, particularly having regard to the fact that the suit was set  

for ex-parte hearing against them and furthermore,  a valuable right had accrued  

in  favour  of  the  respondents,  the  delay  in  filing  the  said  application  was not  

condoned.  

7. Learned counsel  for the appellants  would submit  that the High Court  

committed a serious error in passing the impugned order in so far as it failed to  

take  into  consideration  that  the  non-mentioning  or  wrong  mentioning  of  a  

provision  of  law  did  not  take  away  the  jurisdiction  of  the  Court  below  from

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passing an appropriate order if the source of jurisdiction is traceable under the  

Code. It was urged that the power of the Court to bring on record the heirs and  

legal representatives of the deceased Plaintiff should have been liberally construed  

and keeping in view the fact that the suit was filed also on their behalf.  

8. Learned counsel  appearing  on behalf  of  the  respondents  on  the  other  

hand would contend that as the suit was placed for ex-parte hearing as against  

Defendant Nos. 3 to 13 and their applications for setting aside the orders dated  

15.1.1997 and 19.4.1997 having been dismissed, an application under Order I Rule  

10, sub-rule (2) of the CPC was not maintainable at their instance.   

9. Our attention has furthermore been drawn to a decision of this Court in  

Perumon Bhagvathy Devaswom, Perinadu Village v.  Bhargavi Amma (Dead) by  

L.Rs. and Ors., 2008 (8) SCC 321, wherein this Court laid down the law in the  

following terms:

“19.  Thus  it  can  safely  be  concluded  that  if  the  following  three  conditions  exist,  the  courts  will  usually  condone the  delay,  and set  aside the abatement (even though the period of delay is considerable  and a valuable right might have accrued to the opposite party – L.Rs.  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.”

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10. The Plaintiff  in the suit  did not  claim an independent  right,  title  and  

interest in the property in suit.  The declaration sought for in the plaint would  

disclose that the suit was filed not only on her own behalf but also on behalf of  

Defendant Nos. 3 to 13. Indisputably, Defendant Nos. 1 & 2 were the contesting  

respondents. Learned Trial Judge, therefore, in our opinion, committed a serious  

illegality in passing the orders dated 15.1.1997 and 19.4.1997.  Such an order was  

not contemplated as the Plaintiff and Defendants Nos. 3 to 13 were sailing in the  

same  boat.   The  question  of  setting  a  suit  for  ex-parte  hearing  against  the  

defendant arises provided he or she is contesting the suit and a relief has been  

sought for against him or her.  No relief having been claimed against Defendant  

Nos. 3 to 13 and in fact a decree for declaration having been prayed also on their  

behalf, an order for setting the suit for ex-parte hearing was wholly arbitrary and  

thus quorum non-judis. Keeping the aforementioned legal position, the provisions  

of the CPC may be taken into consideration.

11. The  heirs  and  legal  representatives  of  the  Plaintiff  were  already  on  

record.  As they were already on record, the question of the suit having abated  

would not arise.  In that view of the matter, stricto senso, the period of limitation  

prescribed under Article 120 of the Limitation Act, 1963 was not applicable.  The  

suit was not dismissed, no order for abatement was passed.  It may be true that no  

order  of  abatement  need  be  passed  as  the  abatement  of  the  suit  would  be  

automatic,  but  in  this  case  as  indicated  hereinbefore,  the  heirs  and  legal

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representatives  of  the  sols  Plaintiff  being  already  on  record,  the  question  of  

abatement  of  the  suit  did  not  arise.  In  any  event,  the  High Court  as  also  the  

learned  Trial  Judge  should  have  taken  that  factor  into  consideration  before  

dismissing the application filed by the appellants in this behalf.  

12. The decision of this Court in Perumon Bhagvathy Devaswom (supra), in  

our opinion, is not applicable.  Even if it be held to be so, a bare perusal thereof  

would clearly demonstrate  that  the three conditions  laid  down therein are not  

exhaustive.  The learned Judges advisedly have used the word “usually”.  This  

aspect of the matter has been considered by this  Court in  Mithailal  Dalsangar  

Singh and Ors. v. Annabai Devram Kini and Ors., 2003 (10) SCC 691, wherein it  

was held as under :  

“The courts have to adopt a justice-oriented approach decided by the  uppermost  consideration  that  ordinarily  a  litigant  ought  not  to  be  denied an opportunity of having a list determined on merits unless he  has,  by  gross  negligence,  deliberate  inaction  or  something  akin  to  misconduct,  disentitled  himself  from seeking  the  indulgence  of  the  court.  The  opinion of  the trial  Judge  allowing a  prayer  for setting  aside  abatement  and his  finding on the  question  of  availability  of  'sufficient cause' within the meaning of sub-rule (2) of Rule 9 of Order  22 and of Section 5 of the Limitation Act,1963 deserves to be given  weight, and once arrived at would not normally be interfered with by  superior jurisdiction.”    

13. We  may  furthermore  notice  that  recently  this  Court  in  Katari  

Suryanarayana and Ors. v.  Koppisetti Subba Rao & Ors., 2009 (5) SCALE 238,  

has  noticed  the  decision  in  Perumon  Bhagvathy  Devaswom  (supra)  and  on  

distinguishing the same, laid down the legal proposition  in the following terms:  

“The principles applicable for the purpose of considering applications

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for setting aside abatement had been summarized, inter alia, directing:

(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 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 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 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  refiling 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.”

14. In view of the aforementioned authoritative pronouncement and in the  

facts  and circumstances  of  the  case,  we  are  of  the  opinion  that  the  impugned

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judgment  cannot  be  sustained  which  is  set  aside  accordingly.  The  appeal  is  

allowed. No order as to costs.

15. However, as the suit is of the year 1982 and having regard to the fact that  

the appellants  are residents of  foreign countries,  we would request  the learned  

Trial Judge to consider the desirability of hearing out the matter as expeditiously  

as possible, wherefor specific dates of hearing may be notified.  We would also  

request the learned Judge to consider the desirability of hearing the suit on day-to-

day basis, if possible.  

.......................J (S.B. SINHA)

.......................J   (DEEPAK VERMA)    NEW DELHI, JULY 24, 2009.