IMPORTANT POINT
The High Court was not justified whereby prayers for condonation of delay and setting aside of abatement were refused. On hyper technical view.

Headnote:Limitation Act, 1963-Section 5-Civil Procedure Code, 1908-Order 22 Rule 9-Meaning of expression "Sufficient cause"-Suit for partition decreed-First appeal during appeal certain appellants dying-Appeal abated -Belated application for substitution condonation of delay and settings aside of abatement refused-Upheld in LPA-Appeal against to Supreme Court-Whether by allowed? (Yes)-Case law referred.
Held : 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 fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant 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 fide 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 hyper technical 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. In view of the foregoing discussions, we are clearly of the opinion that on the facts of present case, Division Bench of the High Court was not justified in upholding order passed by the learned Single Judge whereby prayers for condonation of delay and setting aside abatement were refused and accordingly the delay in filing the petition for setting aside abatement is condoned, abatement is set aside and prayer for substitution is granted. In the result, the appeal is allowed, impugned orders passed by the High Court are set aside and the matter is remitted back to the learned Single Judge for deciding the First Appeal on merits in accordance with law. In the circumstances of the case, we direct that the parties shall bear their own costs. (Paras 11, 12 & 13)

JUDGMENT

B.N. Agrawal, J.-Leave granted.

2. Order impugned in this appeal has been passed by a Division Bench of the Jharkhand High Court in Letters Patent Appeal upholding order passed by learned Single Judge whereby regular First Appeal filed by the defendants against decree passed in a partition suit involving approximately 116 acres of land allowing claim of the plaintiffs has been disposed of holding that the entire appeal has become incompetent as during the pendency of the appeal, appellant No.2-Kashinath Sao (defendant No. 2), appellant No.3. Buchua Devi (defendant No.3), appellant No.22-Guru Dayal Sao (defendant No. 19) and appellant No. 41-Ugni Devi (defendant No. 35) expired and as no steps for substitution of their heirs and legal representatives were taken within the time prescribed, the same abated and application for substitution of their heirs after setting aside abatement and condonation of delay was rejected after recording finding that no sufficient cause was shown either for condonation of delay or setting aside abatement.

3. The short facts are that when First Appeal No. 307 of 1989(R) was listed for hearing, appellants counsel wrote a letter intimating the client about listing of the matter whereupon one of the appellants in the appeal came on 18th September, 1998, met his counsel and during the course of discussion, it transpired that appellant Nos. 2,3,22 and 41 had already expired whereupon the counsel instructed the client to go to the village and bring the Vakalatnama from the heirs and legal representatives of the deceased persons for filing substitution application. After obtaining the Vakalatnama, the client came back on 20th September, 1998 and thereafter on 24th September, 1998, substitution application was filed making a prayer therein for expunging the name of appellant No.2 and making a note that he died on 10th April, 1997 leaving behind appellant Nos. 5, 9 and 10 as his heirs and legal representatives who were already on the record, besides a daughter Sheela Devi for whom prayer was made for bringing her on the record in place of the deceased appellant as it is well settled that in such an eventuality, left out heirs can be brought on the record at any time irrespective of the period of limitation. Further prayer was made in that application for substitution of the heirs and legal representatives named therein of appellant Nos. 3, 22 and 41 after condonation of delay in filing the application for setting aside abatement and setting aside abatement. Appellant No.3 died on 19th December, 1997, No. 22 died in the month of February, 1993 and No. 41 died in the year 1995. In the said appeal, there were 41 appellants belonging to different families, villages and police stations. Some of the appellants who were contesting defendants were members of joint family of the plaintiffs and the contesting defendants whereas others were transferees. As some of the heirs of appellant No. 2 were already on the record, his appeal did not abate and prayer for bringing on record one left out heir was made for which there is no period of limitation. So far appellant No.3 is concerned, there was delay of 130 days in filing the application for substitution. However, in relation to appellant No. 22, the delay was about five years and in relation to appellant No. 41, the delay was about three years, both of whom were transferees and belonged to villages different than the village and police station in which members of joint family of the plaintiffs and contesting defendants resided. The appellants before the High Court were rustic and illiterate villagers and undisputedly no sooner their lawyer advised, steps were taken with utmost expedition without any loss of time.

4. In the said appeal on behalf of the respondents, a counter affidavit was filed to the aforesaid petition for substitution in which it was not averred that the delay was mala fide, dilatory and/or intentional. Further, there was no denial that

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2002 Supreme(SC) 277

IMPORTANT POINTThe High Court was not justified whereby prayers for condonation of delay and setting aside of abatement were refused. On hyper technical view.

Cases Referred (4)

IMPORTANT POINT
The High Court was not justified whereby prayers for condonation of delay and setting aside of abatement were refused. On hyper technical view.