Co-owner is as much an owner of entire property as any sole owner of a property is

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.

Bombay High Court

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

Bench: R. V. More

1. Baburao Ganpatrao Shirole,
-VERSUS-
1. Deccan Education Society,
  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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