When nothing is required to be done, courts do not expect the appellant to be diligent.

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 re-filing 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."

Bombay High Court

Both R/At 1202/5, Ghole Road vs Compound, Pune - 411 004; on 5 November, 2012

Bench: R. V. More

Rule. Rule is made returnable forthwith. By consent of the
parties, the matter is taken up for final hearing.
2. Heard Mr. Thorat, learned senior counsel and Mr. Kumbhakoni,
learned counsel for the respective parties.
3. Since all these petitions arise out of various orders passed in a
single suit and parties to the suit are being same, I propose to dispose of
these writ petitions by passing this common order.
4. Writ Petition Nos. 5822, 5828 & 5829 of 2012 arises out of trial
court's order rejecting the applications for bringing legal heirs of
deceased plaintiff Nos. 2, 3, 8 & 9 on record. Writ Petition Nos. 4180 and
4181 of 2012 arises out of an order, whereby the legal heirs of deceased
plaintiff Nos. 7 and plaintiff Nos. 10 and 12 are allowed to be brought on
record. Writ Petition No. 4179 of 2012 arises out of an order of rejection
of an application filed by defendant No.1 for dismissing the entire suit as
abated.
5. For convenience, the parties to the petitions are referred by
their original nomenclature in the suit.
Shubhada S Kadam 12/35 13 WP 5822/12 (group)
The dispute is about a property bearing Survey Nos.82, 117, ssk
224 and 225 total admeasuring about 36 Acres 36 Gunthas situated
within the registration Sub-District, Taluka - Havili, District-Pune and
within the limits of Pune Municipal Corporation at Bhamburda, Shivaji
Nagar, Pune (hereinafter for the sake of brevity called as "the suit
property"). Shri Rajaram Naroji Shirole, Shri Shyamrao Rajaram Patil-
Shirole, Shri Bhagwantrao Rajaram Patil-Shirole and Shri Ganpatrao
Rajaram Patil-Shirole are the original owners of the suit property. The
said original owners have expired and their successors-in-interest,
twenty-five in number, have filed Regular Civil Suit No.381 of 1992 in
Small Causes Court at Pune for recovery of possession of the suit
property along with arrears of rent and mesne profits against the
defendants. It is the case of the plaintiffs that the original owners entered
into registered indenture of lease in favour on defendant No.1-
Society/Trust for the period of 99 years commencing from 1st July, 1891
for agreed yearly rent of Rs.570/-. The lease period expired by efflux of
time on 30th June, 1990. The plaintiffs after exchange of notices and
correspondence and in view of their alleged entitlement to recover the
possession of the suit property on the grounds mentioned under Section
13(1)(i), 13 (1)(e) and 13 (1)(k) of the Bombay Rents Act 1947 filed a suit
for possession of the suit property.
Shubhada S Kadam 13/35 14 WP 5822/12 (group)
During the pendency of the suit, various interim orders are ssk
passed by the trial court. These orders are carried up to Apex Court and
the Apex Court ultimately directed the trial court to expedite the suit within
time bound period viz. within 30th April, 2013.
During the pendency of the suit, the following plaintiffs expired:
Plaintiff No.2 - 15th December, 2002
Plaintiff No.3 - 21st August, 2008
Plaintiff No.7 - 19th November, 1995
Plaintiff No.8 - 28th January, 2008
Plaintiff No.9 - 4th March, 2003
Plaintiff No.10 - 15th January, 1999
Plaintiff No.12 - 23rd January, 2002
The legal heirs of these plaintiffs thereafter filed various
applications for bringing themselves on record. The applications of legal
heirs of deceased plaintiff Nos. 2 & 3 were rejected by common order and
the applications of the legal heirs of deceased plaintiff Nos. 8 & 9 were
rejected by separate orders. The legal heirs of the deceased plaintiffs as
stated above thereafter have filed Writ Petition Nos.5822, 5828 and 5829
of 2012 respectively. The application of the legal heirs of deceased
plaintiff No.7 was allowed and, therefore, this order is challenged by
defendant No.1 by filing Writ Petition No.4180 of 2012. The applications
Shubhada S Kadam 14/35 15 WP 5822/12 (group)
of legal heirs of deceased plaintiff Nos. 10 & 12 were also allowed by a ssk
common order and, therefore, defendant No.1 has challenged this
common order by filing Writ Petition No.4181 of 2012. Defendant No.1
also filed an application at Exhibit 216 for dismissing the suit as abated,
which application was also rejected on 16 th April, 2012 and, therefore,
defendant No.1 has filed a separate Writ Petition No.4179 of 2012.
Thus, there are two sets of writ petitions. The first set of the
petitions viz. Writ Petition Nos.5822, 5828 and 5829 of 2012 are by legal
heirs and representatives of the deceased plaintiffs, impugning orders
whereby their applications for setting-aside abatement as well as bringing
themselves as legal heirs of respective deceased plaintiffs on record
have been rejected. The second set of writ petitions viz. Writ Petition
Nos.4179, 4180 and 4181 of 2012 are filed by original defendant No.1
and it seeks to impugn orders of setting aside abatement and rejection of
application for abatement of the entire suit.
6. Mr. Thorat, learned senior counsel, made following
submissions :
The suit is pending for adjudication of the dispute between the
parties and the trial has not commenced so far. The plaintiffs are
successors-in-interest of the original owners of the suit property and they
are landlords of the suit property. The suit is filed for eviction of the
Shubhada S Kadam 15/35 16 WP 5822/12 (group)
defendants from the suit property under the Bombay Rent Act on the ssk
ground of termination of lease by efflux of time as well as under various
grounds provided under the Bombay Rent Act. The suit is filed by the
plaintiffs as the co-owners of the suit property. The suit against the
tenants can be filed by one of the co-owners unless there is a dispute
between the co-owners and, therefore, death of one of the co-owners will
not result in abatement of the suit. In cases where abatement takes place
after demise of a party and where the entire proceedings abate, the
Courts are justified in applying stricter principles for sufficiency of cause.
However, the Courts should be very liberal in relation to cases where
abatement takes place pending adjudication. Mr. Thorat, learned senior
counsel, submitted that the petitions filed by the plaintiffs are required to
be allowed and the petitions filed by the defendant No.1 deserves to be
dismissed.
He relied upon the decisions of the Apex Court in Sri Ram
Pasricha versus Jagannath & ors. (1976) 4 SCC 184, Bhuramal
Ishwarlal Sindhi versus Yakub Baig Shukrulla Baig 1981 Bom.
C.R.65, Pal Singh versus Sunder Singh (Dead) by LRs. & ors. (1989)
1 SCC 444, India Umbrella Manufacturing Co. & ors. Versus
Bhagabandel Agarwalla (Dead) by LRs Savitri Agarwalla (Smt.) &
ors. (2004) 3 SCC 178, Mohinder Prasad Jain versus Manohar Lal
Jain (2006) 2 SCC 724, FGP Limited versus Saleh Hooseini Doctor
Shubhada S Kadam 16/35 17 WP 5822/12 (group)
and anr. (2009) 10 SCC 223, Collector, Land Acquisition, Anantnag ssk
& anr. Versus Mst. Katija & ors. (1987) 2 SCC 107, State of M.P.
versus S.S. Akolkar (1996) 2 SCC 568, Ram Nath Sao @Ram Nath
Sahu versus Gobardhan Sao 2002 (0) BCI 86, Kesho Kawadu Maral
& anr. Versus State of Maharashtra 2005 (Supp) Bom. C.R.226, Dolai
Maliko (Dead) represented by his legal representatives & ors.
Versus Krushna Chandra Patnaik & ors. AIR 1967 SC 49, Ram
Gopal Sharma vs. 1st Additional District Judge, Meerut and ors. AIR
1993 Allahabad 124, Sardar Amarjit Singh Karla (Dead) by LRs &
ors. Versus Pramod Gupta (Smt.) (Dead) by LRs. & ors. (2003) 3 SCC
272 and Shahazada Bi & ors. Versus Halimabi (since dead) by her
LRs. (2004) 7 SCC 354.
7. Mr. Kumbhakoni, learned counsel appearing for defendant
No.1 made following submissions:
A bare perusal of the applications filed seeking condonation
of delay caused in taking out applications for bringing legal heirs on
record of the deceased plaintiffs demonstrate that the minimum delay
caused is of about 3 ½ years and the maximum delay caused is of
17 years. Majority of the applications have been filed after 10 years from
the date of death of the respective plaintiff and, therefore, delay cannot
Shubhada S Kadam 17/35 18 WP 5822/12 (group)
be condoned especially when sufficient cause is not shown by the ssk
plaintiffs. In this regard, reliance is placed on the judgment of the Hon'ble
Supreme Court in Balwant Singh (dead) versus Jagdish Singh & ors.
(2010) 8 SCC 685.
Order XXII Rule 1, 2, 3, 4 & 9 demonstrates that where cause
of action survives to the surviving plaintiff/s, it is not necessary to bring
legal heirs of the deceased plaintiff/s on record. The application/s for
bringing on record legal heirs of some of the plaintiffs are required to be
filed only when the cause of action does not survive to the surviving
plaintiff/s. In the present case, the fact that applications have been filed
for bringing heirs of the deceased plaintiffs on record itself clearly
demonstrates that even according to the plaintiffs, the cause of action
does not survive to the surviving plaintiffs on death of some of the
plaintiffs. Having taken such a step of not only filing such applications for
bringing legal heirs of some of the deceased plaintiffs on record, but also
seriously prosecuting the same in this Hon'ble Court including by filing
cross writ petitions, it is not now open for the plaintiffs to say that cause of
action did survive to the surviving plaintiffs.
As a result of dismissal of these applications for bringing legal
heirs of some of the deceased plaintiffs on record, the suit indisputably
Shubhada S Kadam 18/35 19 WP 5822/12 (group)
abates, at least inasmuch as the deceased plaintiffs are concerned. The ssk
effect of such abatement is that the suit stands dismissed at least in
respect of the deceased plaintiffs. Thus, the suit of some of the lessors
filed against the lessee at least in respect of their share in the lease-hold
property stands dismissed. Consequently, the suit will remain to be a suit
filed by only some of the lessors against the lessee seeking eviction of
the lessee from the leased premises only in respect of their respective
share in the lease-hold property, the suit for a similar relief filed by the
other lessors being dismissed. Even if such suit continues and is to be
decreed, it will result into passing of conflicting decrees, the suit of some
of the lessors being dismissed already due to abatement. This is
impermissible in law. Where there is likelihood of passing conflicting
decrees in one single suit, the suit as a whole abates.
Mr. Kumbhakoni, learned counsel, ultimately submitted that
the petitions filed by the plaintiff deserves to be dismissed. The petitions
filed by the respondent deserves to be allowed as no sufficient cause is
shown for condoning delay and the suit be abated in toto.
8. At the outset, I will consider the submission of Mr.
Kumbhakoni that the plaintiffs' suit will abate consequent upon the death
of some of the plaintiffs and refusal of the trial court to bring their legal
Shubhada S Kadam 19/35 20 WP 5822/12 (group)
heirs on record. The suit, as stated above, is filed for recovery of ssk
possession of the suit property demised to the defendants under the
indenture of lease dated 17 th July, 1891. The suit is filed by successors-
in-interest of the original owners. The plaintiffs admittedly are the co-
owners and landlords of the suit property and in that capacity they have
filed the suit.
In Shri Ram Pasricha (supra), the Apex Court observed that
a co-owner is as much an owner of the entire property as any sole owner
of a property is. It was further held that jurisprudentially it is not correct to
say that a co-owner of a property is not its owner. He owns every part of
the composite property along with others and it cannot be said that he is
only a part-owner or a fractional owner of the property. The position will
change only when partition takes place. The Apex Court ultimately held
that it is not possible to accept the submission that the plaintiff who is
admittedly the landlord and co-owner of the premises is not the owner of
the premises within the meaning of Section 13(1)(f). It was further held
that it is not necessary to establish that the plaintiff is the only owner of
the property for the purpose of Section 13 (1)(f) as long as he is a
co-owner of the property being at the same time the acknowledged
landlord of the defendants.
Shubhada S Kadam 20/35 21 WP 5822/12 (group)
In Bhuramal Ishwarlal Sindhi (supra), learned Single Judge
ssk
of this Court held that it is settled position of law that notice given by one
of the co-owners is valid and so also the suit instituted by one of the co-
owners.
In Pal Singh (supra), the Apex Court held that the suit filed by
the co-owner for eviction of the tenant is maintainable, if other co-owners
are not objecting to the plaintiff-co-owner's claim for eviction.
In India Umbrella Manufacturing Co. & ors. (supra), a
Division Bench of the Apex Court held that one of the co-owners can file
a suit for eviction of a tenant in the property generally owned by the
co-owners. It was further held that this principle is based on the Doctrine
of Agency. One co-owner filing a suit for eviction against the tenant
does so on his own behalf in his own right and as an agent of the other
co-owners. The consent of other co-owners is assumed as taken unless it
is shown that the other co-owners were not agreeable to eject the tenant
and the suit was filed in spite of their disagreement.
In Mohinder Prasad Jain (supra), the Apex Court held that
one of the co-owners can file a suit for eviction of a tenant of property
generally owned by the co-owners and it is not necessary for such
Shubhada S Kadam 21/35 22 WP 5822/12 (group)
co-owner to obtain prior consent of other co-owners before initiating ssk
eviction proceedings before Rent Controller. It was, however, held that if
the co-owner objects to such eviction proceedings, the same may be
relevant.
In FGP Limited (supra), the Apex Court held that a co-owner
can always maintain a suit for eviction. A co-owner of the property is an
owner of the property till the property is partitioned. It was further held
that if the status of the respondents as co-owners of the property
transpires clearly from the admitted facts of the case, they cannot be
denuded of the said status at the instance of some objections by the
tenants.
In Dolai Maliko (supra), the Apex Court held that where the
plaintiff or the appellant has died and all his heirs have not been brought
on record because of oversight or because of some doubt as to who are
his legal heirs, the suit or the appeal, as the case may be, does not abate
and the heirs brought on record fully represent the estate unless there
are circumstances like fraud or collusion.
In Ram Gopal Sharma (supra), the learned Single Judge of
the Allahabad High Court was considering the position similar to the one
Shubhada S Kadam 22/35 23 WP 5822/12 (group)
in the case at hand and held that even if the heirs and legal ssk
representatives of the deceased plaintiff are not impleaded and the other
co-owners are already on record, the right to sue survives.
A Division Bench of the Apex Court in Shahazada Bi (supra)
held that where within the time limited by law, no application is made to
implead the legal representatives of a deceased defendant, the suit shall
abate as against a deceased defendant. This rule does not provide that
by the omission to implead the legal representative of a defendant, the
suit will abate as a whole
Thus the position of law is settled that a co-owner can file a
suit for eviction of a tenant. In the present case, the suit is filed by the
successors-in-title of the original owners and, therefore, they are co-
owners. It is not the case of defendant No.1 that there is dispute as to
entitlement of recovery of possession of the suit property amongst the
co-owners and, therefore, if one co-owner is entitled to maintain the suit,
it logically follows that the death of one of the co-owners amongst several
co-owners will not result in abatement. The Court can continue with rest
of the co-owners/plaintiffs especially when the suit is pending
adjudication before the trial court and the rights of the parties are not
crystallized. The things, however, would be different in case of
Shubhada S Kadam 23/35 24 WP 5822/12 (group)
abatement of the appeal as against abatement of the suit. If during the ssk
pendency of appeal, the appeal is abetted against some of the appellants
or respondents and the trial courts' decree is joint and indivisible, the
same stands confirmed so far as these appellants or respondents are
concerned and, therefore, the appeal could not be proceeded with
against rest of the respondents as it would, in the event of success,
result in conflicting decrees and, therefore entire appeal abates. The
abatement of the suit and abatement of the appeal are two different
things. As stated above, if the suit can be continued with rest of the co-
owners- plaintiffs, then, certainly it cannot be said that suit is abetted as a
whole, in the event of death of some of the co-owners/plaintiffs. In these
circumstances, I do not find any merit in Writ Petition No.4179 of 2012.
9. This takes me to consider, whether the applications filed by
legal heirs of the deceased plaintiffs are within prescribed period of
limitation, if same are not filed within limitation, whether sufficient cause
is shown to condone the delay and bring themselves on record by
setting-aside the abatement.
In Sardar Amarjit Singh Karla (Dead) (supra), the
Constitution Bench of the Apex Court considered the object of Order 22
and held that the procedure under the said Order should be liberally
Shubhada S Kadam 24/35 25 WP 5822/12 (group)
construed, so as to serve as handmaid of justice. It was further held that ssk
it should be construed as a flexible tool of convenience with a view to do
real, effective and substantial justice. The Apex Court held that in case of
death of some of the appellants during pendency of the appeal, Court
should allow the applications for bringing their legal heirs even if filed
belatedly, having regard to serious manner in which it would jeopardise
effective adjudication, on merits, rights of other remaining appellants.
The applications of these natures should be liberally considered, whether
decree appealed against is joint and inseverable or severable and
separable.
The Apex Court in Collector, Land Acquisition, Anantnag &
anr. (supra), considered the provisions of Section 5 of the Limitation Act,
1963 and laid down the following guidelines for determination of existence
of "sufficient cause".
"1. Ordinarily a litigant does not stand to benefit by
lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest that
can happen is that a cause would be decided on
merits after hearing the parties.
3. "Every day's delay must be explained" does not
mean that a pedantic approach should be made. Why
Shubhada S Kadam 25/35 26 WP 5822/12 (group)
not every hour's delay, every second's delay? The
ssk
doctrine must be applied in a rational common sense
pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the
other side cannot claim to have vested right in injustice
being donebecause of a non-deliberate delay.
5. There is no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or
on account of mala fides. A litigant does not stand to
benefit by resorting to delay. In fact he runs a serious
risk.
6. It must be grasped that judiciary is respected not on
account of its power to legalize injustice on technical
grounds but because it is capable of removing
injustice and is expected to do so."
In S. S. Akolkar (supra), the Apex Court held that it settled
law that the consideration for condonation of delay under Section 5 of the
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 case, the Court may refuse to condone the delay
under Section 5 in filing the appeals.
In Ram Nath Sahu (supra), the Apex Court held that
condonation of delay is a matter of discretion of the Court and the length Shubhada S Kadam 26/35 27 WP 5822/12 (group)
of delay is no matter, acceptability of the explanation is the only ssk
criterion. It was further held that 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.
In Keshao Kawadu Maral and anr.(supra), the Division
Bench of this Court held that even if proceedings get abated, the Court
has ample powers to set aside the abatement and condone the delay as
provisions of Order 22, Rule 1 are not penal in nature. It was also held
that the period of limitation has to be computed from date of knowledge of
death of a party.
10. In the light of the principles laid down by the Apex Court and
Division Bench of this Court, let us consider whether legal
representatives of deceased plaintiffs have made out a case for
condonation of delay in setting-aside the abatement and bringing
themselves on record of the suit. The legal heirs of deceased plaintiffs
have specifically pleaded that the suit was conducted by their father and
they were not directly involved in the matter and, therefore, they were not
Shubhada S Kadam 27/35 28 WP 5822/12 (group)
aware about the progress of the litigation and existence of the litigation. ssk
An averment is also made that recently when all the family members met
on the sad demise of the father of the plaintiff No.1A on 27 th December,
2011, they came to know that there is some order passed by the
Supreme Court and their father is also a party to the present suit and,
therefore, rushed to the advocate and inspected the matter and came to
know about the present matter. It is further averred that since they have
no knowledge of technicalities of law, rules and regulations, it is
necessary to condone the delay caused in bringing themselves on record
by setting-aside the abatement. The trial court allowed the applications
of legal heirs of deceased plaintiff Nos.7, 10 & 12. While allowing these
applications, the trial court relied upon the ratio of the Apex Court
decision in Rangubai Kom Sankar Jagtap versus Sunderabai Bhratar
Sakharam Jedhe & ors. AIR 1965 SC 1794 as legal heirs of these
plaintiffs were brought on record in Miscellaneous Civil Appeal filed
against interlocutory order passed in the suit. The applications of legal
heirs of deceased plaintiff Nos. 2, 3, 8 & 9 were rejected as no sufficient
cause was shown for condonation of delay. The orders rejecting and
allowing the applications of the deceased plaintiffs are the subject matter
of the above writ petitions.
11. As far as orders allowing legal heirs of deceased plaintiff Nos.
Shubhada S Kadam 28/35 29 WP 5822/12 (group)
7, 10 & 12 are concerned, the same cannot be interfered in exercise of ssk
jurisdiction of this Court under Article 227 of the Constitution of India in
the light of Apex Court decision in Ram Nath Sahu (supra) as the trial
court has positively exercised the discretion and this Court should not
disturb the same.
12. So far as the orders rejecting the applications of legal heirs of
deceased plaintiff No. 2, 3, 8 & 9 are concerned, I am of considered
opinion that the trial court committed an error. As stated above, the legal
heirs of these deceased plaintiffs pleaded that they got knowledge of the
proceedings before the Court and requirement of impleading themselves
in the said proceedings when all the family members assembled after the
death of father of plaintiff No.1A on 27 th December, 2011. Thereafter,
applications are immediately filed in the month of January, 2012. In
these circumstances, it cannot be said that the delay is occasioned
deliberately, or on account of culpable negligence, or on account of
mala fides. In such cases, the Courts are required to adopt liberal
approach while acceptance of "sufficient cause" and normally explanation
should be accepted as a Rule and the rejection thereof should be in
exceptional cases. Be that as it may, I have already held that the suit
does not abate and same is maintainable despite demise of some of the
plaintiffs especially when the same is filed under the Rent Act by the co-
Shubhada S Kadam 29/35 30 WP 5822/12 (group)
owners. If that be so, the interest of defendant No.1 by no stretch of ssk
imagination can said to be prejudiced by bringing these legal heirs on
record in place of the deceased plaintiffs, inasmuch as the suit by
remaining plaintiffs can be proceeded with and decided on its own
merits. In these circumstances, the delay occurred in taking out the
applications for setting-aside abatement and bringing legal heirs of the
deceased plaintiff Nos. 2, 3, 8 & 9 deserves to be condoned.
13. Reference must be made to a recent decision of the Division
Bench of the Apex Court in Balwant Singh (supra) which is relied upon
by learned counsel for defendant No.1. Mr. Kumbhakoni heavily relied
upon Para 26 of this judgment which reads as under :
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately
depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally
Shubhada S Kadam 30/35 31 WP 5822/12 (group)
unfair to deprive the other party of a valuable right that has accrued ssk
to it in law as a result of his acting vigilantly."
The Apex Court, in this judgment, reiterated and reproduced the
approved guidelines given by another Bench of the Apex Court in
Perumon Bhagvathy Devaswom which are as follows:
"(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 the 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 bona fides, 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 decided the matter on
merits. 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. Shubhada S Kadam 31/35 32 WP 5822/12 (group)
(iv) The extent or degree of leniency to be shown by a court ssk
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 re-filing 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."
Perusal of these guidelines, makes it clear that the words
"sufficient cause" in Section 5 of the Limitation Act should receive liberal
construction so as to advance substantial justice, when the delay is not
on account of any dilatory tactics, want of bona fides, deliberate inaction
or negligence on the part of the appellant. The Courts while dealing with
these kind of applications, will have to keep in mind that a valuable right
Shubhada S Kadam 32/35 33 WP 5822/12 (group)
accrues to the legal representatives of the deceased respondent when ssk
the appeal abates. In the present case at the cost of repetition, I may
reiterate that the delay cannot be said to have occurred on account of
any dilatory tactics, want of bona fides, deliberate inaction or negligence
on the part of the legal representatives of the deceased plaintiffs. It is
true that the Courts should be cautious while exercising discretion in a
liberal manner when valuable rights are accrued in favour of the party as
a result of failure of other party to explain the delay by showing "sufficient
cause". In the present case, however, defendant No.1 cannot claim that
valuable rights have accrued in its favour by demise of some of the
plaintiffs and failure to bring their legal representatives on record. The
suit, in the absence of deceased plaintiffs, is also perfectly maintainable
and same does not abate in toto. This decision, therefore, will not be of
much assistance to Mr. Kumbhakoni in opposing the applications of legal
heirs of the deceased plaintiff Nos. 2, 3, 8 & 9 for setting aside abatement
and bringing themselves on record.
14. Before parting with this order, the submission of Mr. Kumbhakoni
based on provisions of Order XXII Rules 2 to 4 & 9 is also required to be
dealt with. Mr. Kumbhakoni submitted that where the cause of action
survives to the surviving plaintiff, it is not necessary to bring legal heirs of
the deceased plaintiffs on record and an application for bringing on
Shubhada S Kadam 33/35 34 WP 5822/12 (group)
record legal heirs of the plaintiffs are required to be filed only and only ssk
when the cause of action does not survive to the surviving plaintiff. His
submission is that since the applications have been filed for bringing legal
heirs of the deceased plaintiffs on record itself clearly demonstrates that
even according to the plaintiffs, the cause of action does not survive to
the surviving plaintiffs on death of some of the plaintiffs. The submission
has no merits. Firstly, none of the applications are made by the plaintiffs
and these applications are made by the legal heirs of the plaintiffs who
have expired. The legal heirs of the deceased plaintiffs could have
applied under Order I Rule 10 of the Code of Civil Procedure, 1908, for
adding themselves as parties. True, the applications are made under
Order XXII Rule 3, however, the applications cannot be rejected merely
because it is shown to have filed under wrong provision. The Courts
have ample power to consider such applications under the provisions of
Order I Rule 10. Mr. Kumbhakoni, in this regard, submitted that since
there is specific provision under Order XXII, a party cannot resort to the
provisions under Order I Rule 10. The submission cannot be accepted
as it is the contention of Mr. Kumbhakoni himself that an application
under Order XXII for bringing on record legal heirs of the plaintiffs are
required to be filed only and only when the cause of action does not
survive to the surviving plaintiffs.
Shubhada S Kadam 34/35 35 WP 5822/12 (group)
15. In the light of the above observations, the writ petitions are ssk
disposed of in the following terms:
1. Writ Petition Nos. 5822, 5828 and 5829 of 2012 are
allowed and Rule is made absolute. The applications of
legal heirs of deceased plaintiff Nos. 2, 3, 8 & 9 at Exhibits
167, 169, 221, 223, 224 & 225 respectively are allowed in
terms of prayer clauses (i) & (ii).
2. Writ Petition Nos. 4179, 4180 and 4181 of 2012 are
dismissed and Rule is discharged as such.
16. At this stage, Mr. Pethe, learned counsel, seeks stay of this
order for a period of six weeks. Mr. Chavan, learned counsel, opposes
this prayer. However, in the interests of justice and in order to enable
Mr . Pethe's client to approach the Higher Court, this order is stayed for a
period of four weeks from today.
(RANJIT MORE, J.)
Shubhada S Kadam 35/35

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