Reportable  IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4440 OF 2008 [Arising out of SLP (C) No.6111 of 2006]

Perumon Bhagvathy Devaswom, Perinadu Village … Appellant (s)

Vs.

Bhargavi Amma (Dead) By LRs & Ors. … Respondents

O R D E R

R.V.RAVEENDRAN, J.

Leave granted.  

2. This appeal is by the appellant in Second Appeal No.147 of 1993 on

the file of the High Court of Kerala. During the pendency of the said appeal,

the second respondent  before  the High Court,  died on 17.4.2002. In that

behalf, the appellant filed the following three applications on 9.10.2003 : (i)

an  application  to  set  aside  the  abatement  of  the  appeal  against  second

respondent in the second appeal; (ii) an application to condone 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

Devoswom,  the  Sub-Court,  Kollam appointed  a  Receiver  to  manage  the

Devoswom.  Thereafter  elections  were  held  on  25.5.2003  and  the  newly

elected Committee of Management  assumed office on 8.6.2003. The new

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Committee  of  Management   was   unaware   of   the   pendency  of    the

second   appeal   and,  therefore,   not   in   a   position   to   file  necessary

applications in time. The Committee came to know about the appeal only

when it received a communication dated 7.9.2003 from the lawyer about the

case. Thereafter it  ascertained the particulars  of the LRs. of the deceased

and filed the applications on 9.10.2003.  

4. The question that therefore arises for our consideration is whether the

High Court ought to have condoned the delay and set aside the abatement.

To consider this question, it is necessary to refer to the relevant provisions

of order 22 CPC and their scope.  

4.1) Order 22 Rule 11 CPC provides that in the application of Order 22 to

appeals, as far as may be the words ‘plaintiff’, ‘defendant’ and ‘suit’ shall

respectively  include an appellant,  a  respondent  and an appeal.  Rule  1 of

Order 22 provides that the death of a respondent shall not cause the appeal

to abate if the right to sue survives.  

4.2) Rule 4 of Order 22 prescribes  the  procedure in case of death of  a

respondent. Sub-Rule (1) of Rule 4 provides that where a respondent dies

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and the right to sue does not survive against the surviving respondents alone

or where the sole respondent dies and the right to sue survives, the court on

an application made in that behalf, shall cause the legal representative of the

deceased respondent to be made a party to the appeal and shall proceed with

the appeal. Sub-rule (3) provides that where no application is made to cause

the legal  representative of the deceased respondent to be made party, the

appeal shall abate as against the deceased respondent. (The word ‘abate’ in

the context  of Order 22 CPC means termination of the suit  or appeal  on

account of the death of a party materially interested).  

4.3) Under  Article  120  of  the  Limitation  Act,  1963,  the  period  of

limitation to have the legal representative of a deceased respondent made a

party to an appeal under the Code of Civil Procedure, is 90 days from the

date of death of the respondent. Article 121 provides that for an application

under the Code of Civil Procedure for an order to set aside abatement, the

period of limitation is 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.    

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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) Rule 10A of Order 22 provides that whenever a pleader appearing for

a party to the suit comes to know of the death of that party, he shall inform

the court about it, and the court shall thereupon give notice of such death to

the other party.  

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5. Having  regard  to  the  wording   of  Rule  4,  it  is  clear  that  when  a

respondent  dies  and  an  application  to  bring  his  legal  representative  on

record is not made, abatement takes place on the expiry of the prescribed

period of 90 days, by operation of law. Abatement is not dependant upon

any  judicial  adjudication  or  declaration  of  such  abatement  by  a  judicial

order. It occurs by operation of law. But nevertheless ‘abatement’ requires

judicial cognizance to put an end to a case as having abated. To borrow a

phrase from Administrative Law (used with reference to void orders),  an

appeal bears no brand on its forehead that it has ‘abated’, nor does it close

itself automatically on abatement. At some stage, the court has to take note

of the abatement and record the closure of the case as having abated (where

deceased was a sole  respondent)  or  record that  the  appeal  had abated as

against a particular respondent (if there are more than one and the cause of

action survives against the others).  

6. What should be the approach of courts while considering applications

under  section  5  of  Limitation  Act,  1963,   has  been  indicated  in  several

decisions. It may be sufficient to refer to two of them. In Shakuntala Devi

Jain  v.  Kuntal  Kumari [AIR  1969  SC  575],  this  Court  reiterated  the

following  classic  statement  from  Krishna  vs.  Chathappan  [1890  ILR 13

Mad 269] :  

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“… Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to  be  exercised  upon  principles  which  are  well  understood;  the  words ‘sufficient  cause’  receiving  a  liberal  construction  so  as  to  advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.”

In  N.Balakrishnan  v.  M.Krishnamurthy [1998  (7)  SCC  123],  this  Court

held:

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit.  Length of delay is no  matter,  acceptability  of  the  explanation  is  the  only  criterion. Sometimes delay 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 cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient  cause” under  Section 5 of  the Limitation  Act  should receive a liberal construction so as to advance substantial justice.   

It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his  plea  and to  shut  the  door  against  him.  If the explanation  does  not

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smack of mala fides or it is not put forth as part of a dilatory strategy, the court  must  show utmost  consideration  to  the suitor.  But  when there is reasonable  ground to  think  that  the  delay was  occasioned by the  party deliberately to gain time, then the court should lean against acceptance of the explanation.”  

[Emphasis supplied]

7. This Court has also considered the scope  of Rules 4 and 9 of Order

22 in several decisions. We will refer to them. In  Union of India vs. Ram

Charan (Deceased) by LRs. [AIR 1964 SC 215], this Court observed thus :

“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.  

It is true that it is no duty of the appellant to make regular enquiries from time to time about the health or existing of the respondent.”

(Emphasis supplied)

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

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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.  

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 party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time  prescribed  a  valuable  right  has  accrued  to  the  other  party  which should  not  be  lightly  defeated  by  condoning  delay  in  a  routine-like manner. However,  by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high  and/or  arguable  points  of  facts  and law are involved in  the  case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”    

[Emphasis supplied]

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In Sital Prasad Saxena (dead) by LRs. v. Union of India & Ors. [1985 (1)

SCC 163], this Court stated :  

“…once an appeal is pending in the High Court, the heirs are not expected to  keep  a  constant  watch  on  the  continued  existence  of  parties  to  the appeal before the High Court which has a seat far away from where parties in rural areas may be residing. And in a traditional rural family the father may not  have  informed  his  son  about  the  litigation  in  which  he  was involved and was a party. Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted  as  not  to  make them penal  statutes  for  punishing erring parties.”

In  State  of  Madhya Pradesh vs.  S. S. Akolkar – 1996 (2)  SCC 568, this

Court held :  

“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  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 cases, 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.”

8. The principles applicable in considering applications for setting aside

abatement may thus be summarized as follows :

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(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.  

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9.     Let  us  next  also  refer  to  some of the  special  factors  which  have a

bearing  on  what  constitutes  sufficient  cause,  with  reference  to  delay  in

applications  for  setting  aside  the  abatement  and  bringing  the  legal

representatives on record.   

10. The first is whether the appeal is pending in a court where regular and

periodical  dates  of  hearing  are  fixed.  There  is  a  significant  difference

between an appeal pending in a sub-ordinate court and an appeal pending in

a High Court. In lower courts, dates of hearing are periodically fixed and a

party or his counsel is expected to appear on those dates and keep track of

the case. The process is  known as ‘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.”  

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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 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

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lived in the immediate vicinity or were related or the court issues a notice to

him informing the death of the respondent.  

11. The  second  circumstance  is  whether  the  counsel  for  the  deceased

respondent or the legal representative of the deceased respondent notified

the court about the death and whether the court gave notice of such death to

the appellant.  Rule  10A of Order 22 casts  a duty on the counsel  for the

respondent to inform the court about the death of such respondent whenever

he comes to know about it. When the death is reported and recorded in the

ordersheet/proceedings  and  the  appellant  is  notified,  the  appellant  has

knowledge of the death and there is a duty on the part of the appellant to

take steps to bring the legal  representative of the deceased on record,  in

place of the deceased. The need for diligence commences from the date of

such  knowledge.  If  the  appellant  pleads  ignorance  even  after  the  court

notifies  him about the death of  the respondent that  may be indication of

negligence or want of diligence.  

12. The third circumstance is whether there is any material to contradict

the claim of the appellant, if he categorically states that he was unaware of

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the death of the respondent. In the absence of any material, the court would

accept his claim that he was not aware of the death.   

13. 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 – 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

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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. In this case, the appeal was not being listed periodically by the High

Court. Neither the counsel for the deceased second respondent in the High

Court, nor the legal representatives of the deceased respondent reported her

death to the High Court. There was no notice of death to the appellant. The

appellant  is  an  institution  which  acts  through  its  Managing  Committee.

During  the  relevant  period,  there  was  transition  of  management  from a

Court Receiver to an elected managing committee. An affidavit was filed on

behalf  of  the  appellant  that  its  new  Committee  was   unaware  of  the

pendency  of  the  appeal.  Being  unaware  of  the  pendency  of  appeal  is

equivalent to being unaware of the death of a respondent. This may happen

in two circumstances. First  is where the appellant himself is dead and his

LRs  have  newly  come  on  record.  Second  is  where  the  appellant  is  an

institution or company and a new Committee or Board of Management takes

over its management. In such an event, even if they knew about the death of

a person, they may not know the significance or relevance of death of such a

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person with reference to a pending appeal if they do not know about the

appeal. As the appeal had already been admitted in 1993, and as hearing

dates  were  not  fixed  periodically,  the  new  Committee  had  no  way  of

knowing that the appeal was pending, that Bhargavi Amma was a party to

the  appeal  and  that  the  Legal  Representatives  of  the  deceased  Bhargavi

Amma (second respondent before the High Court) had not been brought on

record.  In  the  circumstances,  we  are  of  the  view  that  the  delay  was

satisfactorily explained. The High Court ought to have condoned the delay,

set  aside  the  abatement  and  permitted  the  appellant  to  bring  the  legal

representatives of the deceased respondent on record.  

16. We  accordingly  allow  this  appeal  and  set  aside  the  orders  dated

5.10.2005  of  the  High  Court  dismissing  the  three  applications  and  the

consequential  order dated 5.10.2005 closing the appeal as having abated.

The delay is condoned. Abatement is set aside. The legal representatives of

the deceased second respondent  in the second appeal  are permitted to be

brought  on record.  The cause-title  of  the  memorandum of second appeal

before the High Court shall be amended. The High Court will now proceed

to hear the appeal on merits in accordance with law. Parties to bear their

respective costs.

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………………………..J. (R. V. Raveendran)      

…………………………..J. (Lokeshwar Singh Panta)  

New Delhi; July 11, 2008.

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