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2009(3) Supreme 385
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
S.B. Sinha and Dr. Mukundakam Sharma, JJ.
Katari Suryanarayana & Ors. — Appellants
versus
Koppisetti Subba Rao & Ors. — Respondents
Civil Appeal No. 2240 of 2009
(Arising out of SLP (C) No.10553 of 2007)
Decided on ; 08-04-2009
(b) Code of Civil Procedure, 1908 – Order XXII, Rule 3 – Parties hereto were neighbours fighting over the right to use a lane which connects their respective residential houses – It is, therefore, difficult to appreciate that the appellant was not aware of the dates of death of respondent Nos.2 and 3. (Para 11)
(1964) 3 SCR 467; 1987 (Supp) SCC 685; (2007) 11 SCC 285; (2008) 8 SCC 321 – Relied upon.
(c) Code of Civil Procedure, 1908 – Order XXII, Rule 3 – There is clear distinction between a case where the parties had been living in immediate vicinity or were related to the Court or had issued notice on him informing the death of the respondent; and in other cases. (Para 12)
(d) Code of Civil Procedure, 1908 – Order XXII, Rule 10A – It is difficult to conceive that the petitioners were not in touch with their learned advocates from 1999 to December 2006 – Ignorance of legal consequence without something more would not be sufficient to condone such a huge delay. (Para 13)
Facts of the case :
1. The parties hereto are neighbours. The dispute between them arose in relation to user of a lane. Appellants claim that they were entitled to use the passage in exercise of their right of easement. They purchased some property including the 1/12th right of the vendors in the disputed suit land on or about 6.11.1985. Prior thereto, they were said to have been enjoying an easmentary right thereover.
2. Respondent filed a suit on or about 27.12.1985 praying for a decree for grant of mandatory injunction as also a decree for permanent injunction against the appellants restraining them from using the land in dispute. The said suit was dismissed by the learned Trial Judge by a judgment and decree dated 15.6.1993.
3. Respondent preferred an appeal thereagainst which was allowed by a judgment and decree dated 22.11.1996
4. Appellant approached the High Court in the year 1997 aggrieved by and dissatisfied with the said judgment and decree of the First Appellate Court by preferring a second appeal.
5. During pendency of the said appeal; whereas Respondent No.3 expired on 31.5.1999, Respondent No.2 expired on 14.1.2000. No application for their substitution within the period prescribed under Order XXII Rule 9 of the Code of Civil Procedure was filed.
6. Appellant filed an application for bringing on record the heirs and legal representatives of the said respondent Nos.2 and 3 only in December 2006 alleging that they had been informed thereabout by their counsel only on 19.11.2006. An application for condonation of delay in filing the said application was also filed. The said applications were barred by 2381 days and 2601 days respectively. By reason of the impugned judgment and order, the High Court refused to condone the delay in bringing on records the heirs and legal representatives of respondent Nos.2 and 3. Consequently, as indicated hereinbefore, it was held that the appeal had abated.
Finding of the Court :
No interference warranted.
Result : Appeal dismissed.
Core Issue: Effect of abatement of an appeal under Order 22 Rule 9 CPC due to failure to substitute legal representatives of deceased respondents, and condonation of substantial delay in filing substitution application. (!) (!)
Factual Background: Parties are neighbors disputing use of a lane connecting their houses; appellants claimed easementary right; suit filed by respondents in 1985, dismissed in trial court (1993), appeal allowed (1996), second appeal filed in High Court (1997); respondent No.3 died on 31.5.1999, respondent No.2 on 14.1.2000; substitution application filed only in Dec 2006, delayed by 2381/2601 days. (!) (!) (!) (!)
Appellants' Arguments: Unaware of deaths and consequences until informed by counsel in Nov 2006; liberal approach needed for condonation in second appeals vs. suits; non-compliance with Order 22 Rule 10A CPC by counsel. (!) (!) (!)
Respondents' Arguments: As neighbors in same village, appellants must have known of deaths; limitation for setting aside abatement runs from date of death, not knowledge. (!) (!) (!)
Relevant CPC Provisions: Order 22 deals with death of parties; Rule 3 requires substitution application within 90 days; Rule 9 provides effect of abatement (no fresh suit on same cause) and procedure to set aside upon sufficient cause (Section 5 Limitation Act applicable); Rule 10A imposes duty on pleader to inform court of party's death. (!) (!) (!) (!) (!) (!) (!)
General Principles on Condonation: Courts adopt liberal attitude for condonation in substitution applications, but exceptions exist; distinction between suits (frequent hearings) and appeals (long pendency without hearings). (!)
Application to Facts: As neighbors fighting over local lane, appellants likely aware of deaths; no evidence of contact with counsel from 1999-2006 despite literacy and long litigation; mere ignorance of legal consequences insufficient for huge delay condonation. (!) (!)
Distinction in Scenarios: Liberal condonation less applicable where parties live in immediate vicinity (e.g., neighbors/co-sharers) vs. distant appeals with no hearings for years. (!) (!)
Court's Evaluation of Sufficient Cause: Requires more than bare allegation of late knowledge; plaintiff/appellant must explain reasons for not learning of death timely, especially when challenged; no duty to constantly inquire about opponent's health, but negligence/vigilance considered. (!) (!)
Outcome: High Court correctly refused condonation; appeal abated due to indivisible cause of action; no interference by Supreme Court. (!) (!) (!)
Result: Civil appeal dismissed. (!)
JUDGMENT
S.B. Sinha, J.—
1. Leave granted.
2. Effect of abatement of an appeal, as envisaged under Order 22 Rule 9 of the Code of Civil Procedure is involved in this appeal which arises out of a judgment and order dated 26.12.2006 passed by a learned Single Judge of the High Court of Judicature Andhra Pradesh at Hyderabad in Second Appeal No.192 of 1997 dismissing an application of the appellant herein to condone the delay of 2381 days and 2601 days respectively in bring on records, the legal heirs and representatives of two respondents therein being respondents No.2 and 3 holding that the second appeal preferred by them must be dismissed having abated, since cause of action therefor was indivisible.
3. Before adverting to the question involved, we may notice the fact of the matter.
The parties hereto are neighbours. The dispute between them arose in relation to user of a lane. Appellants claim that they were entitled to use the passage in exercise of their right of easement. They purchased some property including the 1/12th right of the vendors in the disputed suit land on or about 6.11.1985. Prior thereto, they were said to have been enjoying an easmentary right thereover.
4. Respondent filed a suit in the Court of Principal District Munsif, Ramachandra-puram on or about 27.12.1985 praying, inter alia, for a decree for grant of mandatory injunction as also a decree for permanent injunction against the appellants restraining them from using the land in dispute. The said suit was dismissed by the learned Trial Judge by a judgment and decree dated 15.6.1993.
5. Respondent preferred an appeal thereagainst. The Subordinate Judge, Ramachandrapuram allowed the said appeal by a judgment and decree dated 22.11.1996 holding that they being the owners of the land in suit, were entitled to a decree for mandatory as also permanent injunction.
6. Appellant approached the High Court in the year 1997 aggrieved by and dissatisfied with the said judgment and decree of the First Appellate Court by preferring a second appeal which was marked as SA No.192 of 1997. Indisputably during the pendency of the said appeal; whereas Respondent No.3 expired on 31.5.1999, Respondent No.2 expired on 14.1.2000. No application for their substitution within the period prescribed under Order XXII Rule 9 of the Code of Civil Procedure was filed. Appellant filed an application for bringing on record the heirs and legal representatives of the said respondent Nos.2 and 3 only in December 2006 alleging that they had been informed thereabout by their counsel only on 19.11.2006. An application for condonation of delay in filing the said application was also filed. The said applications, as noticed hereinbefore, were barred by 2381 days and 2601 days respectively. By reason of the impugned judgment and order, the High Court refused to condone the delay in bringing on records the heirs and legal representatives of respondent Nos.2 and 3. Consequently, as indicated hereinbefore, it was held that the appeal had abated.
7. Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of the appellant, would urge :
(1) The High Court committed a grave error insofar it failed to take into consideration the fact that the appellants were not aware of the consequences of the death of the respondents and they had come to know thereabout only through the counsel at a much later state. In any event, the provision of Order 22 Rule 10A of the Code of Civil Procedure mandating the counsel of the deceased to duly inform the Court in regard to their clients passing away having not been complied with, the impugned judgment cannot be sustained.
(2) A distinction must be borne in mind in regard to application of Order 22 Rule 9 in a civil suit where the parties are required to appear on each and every date of hearing and a Second Appeal and an appeal as the same where the matter is listed after a few years and in that view of the matter, a liberal view in the matter of condonation of del
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