IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2163 OF 2010 [Arising out of SLP(C) No.13904 of 2009]

SWAMI PRASAD & ANR. .......APPELLANT(S)  

Vs

LAKHAN SINGH(D) & ORS. THRO' LRs. .....RESPONDENT(S)

O R D E R

Leave granted.  Heard the learned counsel.

2. The appellants in Second Appeal No.25 of 1993 on the  

file of the High Court of Madhya Pradesh, Jabalpur are the  

appellants before us. The said Second Appeal, filed in 1993,  

after admission, was pending final hearing and was not being  

listed  for  hearing  before  the  Court  periodically.  It  is  

stated  that  the  first  respondent  died  on  28.5.1998.  The  

appellants  claim  that  they  were  unaware  of  his  death.  

Nearly eight years later, on 1.8.2006, the counsel for the  

first respondent informed the Court about the death of his  

client.  Unfortunately  on  that  day,  the  counsel  for  the  

appellants was not present, and consequently the appellants  

were unaware of the death of the first respondent even after

1.8.2006.  On 9.8.2007, the appeal was dismissed as having  

abated as the legal representatives of the deceased first  

respondent  were  not  brought  on  record  within  the  time  

prescribed.  When the appellants came to know about it, they  

filed an application for setting aside the abatement and  

consequential  restoration  and  to  bring  the  legal  

representatives of the deceased first respondent on record.  

Those  applications  were  dismissed  by  the  impugned  order  

dated 19.9.2008.  

3. In  Perumon Bhagvathy Devaswom vs. Bhargavi Amma –  

2008  (8)  SCC  321,  this  Court  has  held  that  where  a  

respondent dies during the pendency of the appeal, at a time  

when the appeal has been pending for several years without  

being listed for hearing, the Court should take a lenient  

view in considering the application for condoning delay and  

setting aside the abatement. This is more so because the  

counsel for first respondent informed the court about the  

death of first respondent (which was on 28.5.1998) only on  

1.8.2006 nearly eight years after the death. The material  

showed that the appellants had no knowledge about the death.  

4. We find that the appellants have explained the delay  

in filing the application for abatement. The appellants'  

counsel  was  absent  on  1.8.2006,  when  first  respondent’s  

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counsel informed the court about the death and therefore the  

delay after 1.8.2006 is also explained. On the facts and  

circumstances, we consider this a fit case where the High  

Court ought to have set aside the abatement.

5. We, accordingly, allow this appeal, set aside the  

impugned order dated 19.9.2008, restore the second appeal to  

the  file of  the High  Court, set  aside the  abatement by  

condoning the delay and permit the appellants to bring the  

legal representatives of the deceased first respondent on  

record.  We request the High Court to dispose of the second  

appeal expeditiously.

  ........................J.               ( R.V. RAVEENDRAN )

New Delhi;           ........................J. March 08, 2010.                ( K.S. RADHAKRISHNAN )

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