REPORTABLE

IN THE SUPREME COURTOF INDIA

CIVIL APPELLATE  JURISDICTION

CIVIL APPEAL NO. 2240  OF 2009 (Arising out of SLP (C) No.10553 of 2007)

Katari Suryanarayana & Ors. … Appellants

Versus

Koppisetti Subba Rao & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Effect of abatement of an appeal, as envisaged under Order 22 Rule 9

of the Code of Civil Procedure is involved in this appeal which arises out of

a judgment and order dated 26.12.2006 passed by a learned Single Judge of

the  High  Court  of  Judicature  Andhra  Pradesh  at  Hyderabad  in  Second

Appeal No.192 of 1997 dismissing an application of the appellant herein to

condone the delay of  2381 days  and 2601 days respectively in  bring  on

records, the legal heirs and representatives of two respondents therein being

respondents No.2 and 3 holding that the second appeal preferred by them

must  be  dismissed  having  abated,  since  cause  of  action  therefor  was

indivisible.

3. Before adverting to the question involved, we may notice the fact of

the matter.   

The parties hereto are neighbours.  The dispute between them arose in

relation to user of a lane.  Appellants claim that they were entitled to use the

passage  in  exercise  of  their  right  of  easement.   They  purchased  some

property including the 1/12th right of the vendors in the disputed suit land on

or about 6.11.1985.  Prior thereto, they were said to have been enjoying an

easmentary right thereover.   

4. Respondent  filed  a  suit  in  the  Court  of  Principal  District  Munsif,

Ramachandrapuram on or about 27.12.1985 praying, inter alia, for a decree

for grant of mandatory injunction as also a decree for permanent injunction

against the appellants restraining them from using the land in dispute.  The

said suit was dismissed by the learned Trial Judge by a judgment and decree

dated 15.6.1993.   

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5. Respondent preferred an appeal thereagainst.  The Subordinate Judge,

Ramachandrapuram allowed the said appeal by a judgment and decree dated

22.11.1996  holding  that  they being  the  owners  of  the  land  in  suit,  were

entitled to a decree for mandatory as also permanent injunction.   

6. Appellant approached the High Court in the year 1997 aggrieved by

and dissatisfied with  the said judgment and decree of the First  Appellate

Court by preferring a second appeal which was marked as SA No.192 of

1997.   Indisputably  during  the  pendency  of  the  said  appeal;  whereas

Respondent  No.3  expired  on  31.5.1999,  Respondent  No.2  expired  on

14.1.2000.  No application for their substitution within the period prescribed

under  Order  XXII  Rule  9  of  the  Code  of  Civil  Procedure  was  filed.

Appellant  filed  an  application  for  bringing  on record the  heirs  and legal

representatives of the said respondent Nos.2 and 3 only in December 2006

alleging that they had been informed thereabout by their counsel only on

19.11.2006.   An  application  for  condonation  of  delay  in  filing  the  said

application was also filed.  The said applications, as noticed hereinbefore,

were barred by 2381 days and 2601 days respectively.  By reason of the

impugned judgment and order, the High Court refused to condone the delay

in  bringing  on  records  the  heirs  and  legal  representatives  of  respondent

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Nos.2 and 3.  Consequently, as indicated hereinbefore, it was held that the

appeal had abated.

7. Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of

the appellant, would urge :

(1) The High Court committed a grave error insofar it failed to take into

consideration  the  fact  that  the  appellants  were  not  aware  of  the

consequences of the death of the respondents and they had come to

know thereabout only through the counsel at a much later state.  In

any event, the provision of Order 22 Rule 10A of the Code of Civil

Procedure mandating the counsel of the deceased to duly inform the

Court  in  regard  to  their  clients  passing  away  having  not  been

complied with, the impugned judgment cannot be sustained.

(2) A distinction must be borne in mind in regard to application of Order

22 Rule 9 in a civil suit where the parties are required to appear on

each and every date of hearing and a Second Appeal and an appeal as

the same where the matter is listed after a few years and in that view

of the matter,  a  liberal  view in the matter of condonation of delay

should be taken.

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8. Mr.  T.V.  Ratnam,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, would urge :

(i) The  parties  having  been  living  in  a  village  and  that  too  being

neighbours, it is idle to contend that they were not aware of the dates

of death of the original respondent Nos. 2 and 3.

(ii) As limitation for filing application for setting aside the abatement of

the proceedings runs from the date of death and not from the date of

knowledge thereabout, the High Court must be held to have correctly

determined the issue before it.

9. Before adverting  to  the rival  contentions  of  the parties,  as  noticed

hereinbefore, we may notice the relevant provisions of the Code of Civil

Procedure.   

Order XXII of the Code provides for the consequences arising out of

death, marriage and insolvency of parties.  Rule 1 thereof provides that the

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

to  sue  survives.   Rule  2  lays  down the  procedure  where  one  of  several

plaintiffs died and the right to sue survives.   

Order XXII Rule 3 lays down the procedure in case of death of one of

the several plaintiffs or sole plaintiff for bring on record the heirs and legal

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representatives of a deceased plaintiff or one of the plaintiffs, an application

is  required to be filed within the period prescribed therefor.   The period

prescribed for such an application indisputably is 90 days.  Sub-rule 2 of

Rule 3 of Order XXII provides for the consequences of not filing such an

application, that is, that the suit shall abate so far as the deceased plaintiff is

concerned.  A similar procedure has been laid down in case of death of one

of the several defendants or a sole defendant in Rule 4 of Order XXII.

Rule  9  of  Order  XXII  provides  for  the  effect  of  abatement  or

dismissal, stating :

“9. Effect of abatement or dismissal.—(1) Where a suit abates or is dismissed under this Order, no fresh suit  shall  be brought  on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff  may apply for  an order  to  set  aside the abatement or dismissal; and if it is proved that he was  prevented  by  any  sufficient  cause  from continuing the  suit,  the  Court  shall  set  aside  the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3)  The  provisions  of  section  5 of  the  'Indian Limitation Act,  1877 (15 of  1877), shall apply to applications under sub-rule (2).

Explanation.--Nothing  in  this  rule  shall  be construed as barring,  in any later  suit,  a defence based -on the facts which constituted the cause of

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action in  the suit  which had abated or  had been dismissed under this Order.”

Rule  10A  of  Order  XXII  provides  for  the  duty  of  a  pleader  to

communicate to the court death of a party.

10. It  is  now  trite  by  reason  of  various  decisions  of  this  Court  that

different considerations arise in the matter of condoning the delay in filing

an application for setting aside an abatement upon condonation of delay in a

suit and an appeal.  It  is furthermore neither in doubt nor in dispute that

such applications should be considered liberally.  The Court would take a

more liberal attitude in the matter of condonation of delay in filing such an

application. There are, however, exceptions to the said rule.

11. Parties hereto were neighbours.  They were fighting over the right to

use  a  lane  which  connects  their  respective  residential  houses.   It  is,

therefore, difficult for us to appreciate that the appellant was not aware of

the dates of death of respondent Nos.2 and 3.   

It may be true that a distinction exists where an application for setting

aside of the abatement is filed in a suit and the one which is required to be

filed in a second appeal before the High Court but the same, in our opinion,

by itself may not be sufficient to arrive at a conclusion that the parties were

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not aware of the consequences thereof.  Appellants themselves rely on the

provisions of Order XXII Rule 10A of the Code of Civil Procedure, which

was inserted by reason of Code of Civil Procedure (Amendment) Act, 1976.

It does not, however, provide for consequences.  It does not take away the

duty on the part of the plaintiff or the appellant, as the case may be, to file

an application for condonation of delay in bringing on record the heirs and

legal  representatives  of  a  deceased  plaintiff/appellant  or

defendant/respondent within the period prescribed.

In Union of India v. Ram Charan & Ors. [(1964) 3 SCR 467], a Three

Judge Bench of this Court, held :

“…  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

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applying  within  time  for  the  impleading  of  the legal representatives of the deceased or for setting aside the abatement.  

It is  true,  as  contended,  that  it  is  no duty of the appellant  to make regular  enquiries  from time to time about the health or existence of the opposite party, but it does not mean that the mere fact of the appellant's  coming  to  know  of  the  respondent's death  belatedly  will,  by  itself,  justify  his application for setting aside the abatement. That is not  the  law.  Rule  9  of  O.  XXII  of  the  Code requires  the  plaintiff  to  prove  that  he  was prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know of the death of the opposite party is not sufficient.  He  had  to  state  reasons  which, according to  him, led to  his  not  knowing of  the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court,  specially  when  the  correctness  of  those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit.”

It was furthermore opined :

“The  period  of  limitation  prescribed  for  making such  an  application  is  three  months,  under  Art. 171 of  the  First  Schedule  to  the  Limitation  Act. This  is  a sufficiently long period and appears to have  been  fixed  by  the  legislature  on  the expectancy that  ordinarily the  plaintiff  would  be able to learn of the death of the defendant and of the  persons  who  are  his  legal  representatives within  that  period.  The  legislature  might  have expected that ordinarily the interval between two successive hearings of a suit will be much within

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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.  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.  176 for an application to set aside the abatement of the suit but also made the provisions of  s.  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  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  an 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.”

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(Emphasis supplied)

The aforementioned decision has been noticed by this Court in Bhag

Singh  & Ors. v.  Major  Daljit  Singh  & Ors. 1987  (Supp)  SCC 685],  to

opined:

“The law is now well settled by several decisions which  have  been  cited  before  us,  Prem Nath v. M/s. Kandoomal Rikhiram and  Hanuman Dass v. Pirthivi Nath as well as of this Court reported in Union of Inaid v. Ram Charan that the court while considering an application under Section 5 of the Limitation  Act  will  consider  the  facts  and circumstances  not  for  taking  too  strict  and pedantic  stand  which  will  cause  injustice  but  to consider it from the point of taking a view which will advance the cause of justice.”

In that case, however, the application for condonation was allowed.

Reliance has been placed by Mr. Ramakrishna Prasad on a decision of

this Court in  Bhag Mal @ Ram Bux & Ors. v.  Munshi (Dead) by LRs &

Ors. [(2007) 11 SCC 285], wherein it was held :

“12. It is no doubt true that in terms of Section 3 of the Limitation Act, 1963 as also the provisions of  the  said  Act,  a  suit  must  be  filed  within  the prescribed period of limitation. The civil court has no jurisdiction to extend the same.

13. However the provisions of the Limitation Act should be construed in a broad manner. Different

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provisions  of  the  Limitations  Act  may  require different constructions,  as for example,  the court exercised  its  power  in  a  given  case  liberally  in condoning  the  delay  may have  to  be  taken  into consideration for examining its correctness by the court  in  each  case.  We  however  may  not  be understood  to  lay  down  a  law  that  the  same principle  would  apply in  case  of  construction  of section 3 of the limitation Act.”

It was furthermore observed :  

“15. The provisions of statute of limitation cannot be  construed in  a  pedantic  manner.  This  is  now well known principle of law. Had the appeal been dismissed  on  merit,  indisputably  the  period  of limitation  would  have  started  from  the  date  of dismissal  of  the  second appeal.  The respondents themselves preferred an appeal. The appeal was a continuation of a suit. The appellants herein could not thus,  have been held to be aware of the fact that during the pendancy thereon Bansi would die or  the  appeal  shall  abate.  Let  us  consider  a hypothetical situation. An appeal abates after three years  of  the  judgment  and  decree  passed  by the first  appellate  court  and  in  that  situation  the appellant would have no chance to reap the benefit thereof,  if  the  submission of  the learned counsel appearing on behalf of the respondent is accepted. The law in our opinion, cannot be construed in a manner which would defeat the ends of justice”  

Reliance has also been placed on a recent decision of this Court in

Perumon  Bhagwathy  Devaswom,  Perinadu  Village v.  Bhargavi  Amma

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(Dead) by LRs & Ors. [(2008) 8 SCC 321].  Raveendran J, speaking for the

Bench, upon noticing a large number of decisions, held :

“9.  This  Court  also  made  some  observations  in Ram Charan (Supra) about the need to explain, in addition to alleging that the plaintiff/appellant not being aware about the death,  the reasons for not knowing about the death within a reasonable time. Those observations have stood diluted in view of subsequent insertion of sub-rule (5) in Rule 4 and addition  of  Rule  10A  in  Order  22  CPC  by Amendment  Act  104  of  1976,  requiring  (i)  the court  to  take  note  of  the  ignorance  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.”

The principles applicable for the purpose of considering applications

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.

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(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

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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.”

Having  said  so,  the  learned  Judge  referred  to  some factors  which

would have a bearing for the purpose of determining ‘sufficient cause’, in

particular,  where a regular  suit  is  pending vis-à-vis  an appeal  is  pending

before a High Court, stating :

“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 and when the case is listed for hearing. There  is  nothing  the  appellant  is  required  to  do during the period between admission of the appeal and  listing  of  the  appeal  for  arguments  (except filing  paper  books  or  depositing  the  charges  for preparation  of  paper  books  wherever  necessary). The High Courts are overloaded with appeals and the  litigant  is  in  no  way  responsible  for  non- listing for several years. There is no need for the appellant to keep track whether the respondent is

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dead  or  alive  by periodical  enquiries  during  the long  period  between  admission  and  listing  for hearing.  When  an  appeal  is  so  kept  pending  in suspended animation for a large number of years in the High Court without any date being fixed for hearing,  there  is  no  likelihood  of  the  appellant becoming  aware  of  the  death  of  the  respondent, unless both lived in the immediate vicinity or were related  or  the  court  issues  a  notice  to  him informing the death of the respondent.”

The learned Judge had brought about a clear distinction between a

case where the parties had been living in immediate vicinity or were related

to  the  Court  or  had  issued  notice  on  him  informing  the  death  of  the

respondent and in other cases.

13. It is not in dispute that the appellants were neighbours.  They were

co-sharers.  The respective dates of death of the respondent Nos.2 and 3,

thus, were known to them.  It  is difficult  to conceive that  the petitioners

were  not  in  touch  with  their  learned  advocates  from 1999  to  December

2006.  If not every week, they are expected to contact their lawyers once in

a year.  Ignorance of legal consequence without something more would, in

our opinion, be not sufficient to condone such a huge delay.  Appellants are

literates.  They have been fighting their cases for a long time.  The High

Court in its impugned judgment has categorically arrived at a finding that

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no sufficient cause has been shown for the purpose of condonation of delay

in bringing on record the names of the heirs or legal representatives of the

deceased respondent Nos.2 and 3.   

Appellants  have  pleaded  about  the  intimation  from  their  counsel.

There is nothing on record to show whether the said intimation was written

or oral.

14. In vies view of the matter, we are of the opinion that it is not a fit case

where this Court should exercise its discretionary jurisdiction under Article

136 of the Constitution of India.  This appeal is dismissed accordingly.  No

costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; April 8, 2009

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