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PETITIONER: SITAL PRASAD SAXENA (DEAD) BY LRS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT28/08/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J) KHALID, V. (J)

CITATION:  1985 AIR    1            1985 SCR  (1) 659  1985 SCC  (1) 163        1984 SCALE  (2)536

ACT:      Condonation of  Delay-High Court  calling for  a report from trial court on application for condonation of delay and accepting  the  same  as  if  it  is  exercising  revisional jurisdiction-Whether  justified-Whether  High  Court  should satisfy itself  that sufficient  cause has been made out for condonation of delay-Section 5. Limitation Act 1963.

HEADNOTE:      One Mahendra  Kumar Saxena  moved three applications in the  High   Court-one  under   O.XXII  Rule  3,  C.P.C.  for substitution of  heirs  and  legal  representatives  of  the deceased appellant,  the other  under O.XXII  rule 9, C.P.C. for setting  aside abatement  of the appeal if it has abated for failure  to  seek  substitution  within  the  prescribed period of  limitation and  the third  one for condonation of delay  u/s.   5  of  the  Limitation  Act.  The  High  Court transmitted  these  applications  to  the  trial  court  for enquiry and  report regarding  the  date  of  death  of  the deceased appellant  and knowledge  about the pendency of the appeal of  the heirs  and legal  representatives in order to ascertain whether  the applicant  had  made  out  sufficient cause for condoning the delay. The trial court submitted its report which in terms included a finding that Mahendra Kumar Saxena had knowledge about the pendency of the second appeal before moving  the  aforementioned  applications.  The  High Court held that the conclusion reached by the trial court is such that  it would not like to take a different view of the matter and  therefore rejected  the various applications and disposed of  the appeal  as having abated. Hence this appeal by special leave.      Allowing the  appeal and  remitting the  matter to  the High Court for early disposal. ^      HELD :  (1) The  approach of the High Court that it was not pursuaded to take a view different from the one taken by the trial  court is  not permissible.  It is  the High Court which had  to satisfy  itself that  the petitioner  made out sufficient  cause   which  prevented  him  from  moving  the application for  substitution in  time  and  not  the  trial court. The  High Court  may call  for a  report of the trial

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court  but  then  cannot  adopt  the  approach  of  a  court exercising revisional  jurisdiction.  It  must  examine  the material collected  by the  trial court  and come to its own conclusion. [662 C-D,] 660      Bhagwan Swaroop  v. Mool  Chand [1983]  2 SC.C. 132 and Hans Raj v. Sunder Lal Aggarwal (1982) 1 sec. 476 followed.      (2) 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.  In the  instant case,  it is a moot point whether  the father  acquainted his son/sons about his litigation for  seeking relief in respect of his service. If this is the nature of litigation, this Court is not inclined to draw the inference drawn by the trial court that son/sons knew  about   the  pendency  of  second  appeal.  Therefore, sufficient cause was made for condoning the delay. [622 D-E, 622 F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 843 of 1984      Appeal by  Special leave  from the  Judgment and  Order dated the  23rd September,  1981 of  the Madhya Pradesh High Court in Civil Second Appeal No. 10 of 1971.      S.S. Khanduja for the Appellant.      G.D. Gupta and R.N. Poddar for Respondents.      The Order of the Court was delivered by      DESAI, J.  One Shri Sital Prasad Saxena filed Civil No. 46A of  1969 against  (1) Union of India (2) Comptroller and Auditor General  of India  and (3) Accountant General Madhya Pradesh for  a declaration  about the status of his post and arrears of  salary in  respect of  the post  in which he was entitled to  continue. The  suit came  up for hearing before the 5th  Civil Judge  Class II,  Gwalior who by his judgment and decree  dated July 7, 1969 dismissed the suit. Plaintiff Sital Prasad  Saxena preferred  civil appeal No. 36A of 1970 against that  judgment and  decree of the trial court in the District Court  at Gwalior.  The appeal  came up for hearing before the  learned  First  Additional  District  Judge  who agreed with  the findings  recorded by  the trial  court and accordingly by  his judgment  and order dated August 4, 1970 dismissed  the   appeal.  Plaintiff   Sital  Prasad   Saxena preferred second  appeal No. 10 of 1971 in the High Court of Madhya Pradesh-Jabalpur Bench.      During the  pendency of  the appeal  in the High Court, plaintiff-appellant Sital  Prasad Saxena expired on February 25, 1976.  One Mahendra  Kumar Saxena  claiming to be one of the sons  of late  Sital Prasad  Saxena moved an application being I.A.  No. 5582 of 1978 under Order XXII, rule 3 of the Code of Civil Procedure for 661 substitution of  heirs  and  legal  representatives  of  the deceased appellant with a view to prosecuting the appeal. He simultaneously moved another application being I.A. No. 5744 of 1978  under Order  XXII rule,  9 CPC requesting the Court that  if   the  appeal   has  abated  for  failure  to  seek substitution within the prescribed period of limitation, the abatement of  the appeal  may be  set aside.  He also  moved another application  being I.A. No. 5745 of 1978 for seeking condonation of delay under section 5 of the Limitation Act.      A learned  Single Judge  of the High Court by his order

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dated  January   29,  1981   directed  that  all  the  three miscellaneous applications be transmitted to the trial Court for enquiry  and report regarding the date of death of Sital Prasad Saxena and knowledge about the pendency of the appeal of the  heirs and  legal  representatives  in  order  to  as certain whether the applicant had made out sufficient, cause for condoning the delay which if permitted, would enable the Court to  set aside  the abatement.  The trial  Court  after recording the  evidence of  the parties submitted the report which in terms included a finding that Mahendra Kumar Saxena had knowledge about the pendency of the second appeal before October  7,   1978,  the   date  on   which  he   moved  the aforementioned applications.  It appears that on the receipt of the  report of  the trial Court Mahendra Kumar Saxena and other legal  representatives of  the deceased appellant move an application  being I.A.  No. 2722  of 1981 praying for an opportunity  to   examine  another   son  of   the  deceased appellant, viz.,  Shailendra Kumar  Saxena. They  also filed objections controverting  the finding  recorded by the trial Court.      It  appears  that  the  Union  of  India  resisted  the applications contending  that the  petitioner has  failed to make  out   sufficient  cause   for  the  delay  in  seeking substitution and therefore no case is made out for condoning the delay  and setting aside abatement. The position adopted by Union of India is a bit surprising for us.      The High  Court  after  minutely  examining  the  rival contentions held  that the  conclusion reached  by the trial Court is  such that the learned Judge would not like to take a different  view of  the matter.  The approach  of the High Court   suggests   that   it   was   exercising   revisional jurisdiction while  examining the report of the trial Court. This approach  does  not  commend  to  us.  Accordingly  the learned Judge  rejected  the  various  applications  thereby declining to  condone the delay which alone would permit him to set aside the abatement with 662 the result  that appeal  was disposed  of as  having abated. Hence this appeal by special leave.      We heard  Mr. S.S.  Khanduja, learned  counsel for  the appellants and  Mr. G.D.  Gupta,  learned  counsel  for  the respondents Approach to the applications seeking condonation of delay  in moving  the  application  for  substitution  of parties who  died during the pendency of civil appeal in the High Court  has to  be as  observed by this Court in Bhagwan Swaroop v. Moolchand and Hans Raj v. Sunder Lal Aggarwal. In the present  case the  High Court unfortunately committed an error in  rejecting the application for condoning the delay. It is  the High  Court which  had to satisfy itself that the petitioner made  out sufficient  cause which  prevented  him from moving the application for substitution in time and not the trial  Court. The  High Court may call for report of the trial Court  but then  cannot adopt  the approach of a court exercising revisional  jurisdiction.  It  must  examine  the material collected  by the  trial Court  and come to its own conclusion. In this case the High Court observed that it was not persuaded to take a view different from the one taken by the trial Court. This is impermissible. The second error was that 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

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what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not  to  make  them  penal  statutes  for  punishing  erring parties.      The deceased appellant has left behind him his sons. It is a  moot point  whether the father acquainted his son/sons about his  litigation for  seeking relief  in respect of his service. If  this is  the nature  of litigation,  we are not inclined to draw the inference drawn by the trial court that son/sons knew about the pendency of appeal.      Having heard  learned counsel  on either  side  we  are satisfied that  both the  trial court  as well  as the  High Court were  in error  in not  condoning the delay in seeking substitution of  heirs  and  legal  representatives  of  the deceased/appellant in time. Cause for delay as urged 663 appears to  us to  be sufficient  which prevented  them from moving the  petition for substitution. We are satisfied that sufficient  cause   was  made   for  condoning   the  delay. Accordingly, we first set aside the order passed in I.A. No. 5745 of  1978 under  section 5 of the Limitation Act seeking condonation of  delay and  grant the  same. We set aside the order disposing  of the  appeal having  abated and set aside the abatement.  We condone the delay in seeking substitution and grant  substitution. Accordingly,  the heirs  and  legal representatives who applied for substitution in place of the deceased-appellant are directed to be brought on record. The appeal succeeds to this extent and is allowed and the orders of the High Court herein above set out are set aside and the matter is  remitted to  the High  Court for  disposal in the light of  the observations  made herein. Since the matter is an old one the High Court may dispose of it as expeditiously as possible.  There will be no order as to costs. The appeal is disposed of accordingly. M.L.A     Appeal allowed. 664