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2010 Supreme(SC) 200
Supreme Court of India
R.V. RAVEENDRAN & K.S. RADHAKRISHNAN
Swami Prasad & Another
Versus
Lakhan Singh (D) & Ors. Thro' Lrs.
CIVIL APPEAL NO. 2163 OF 2010 [Arising out of SLP(C) No.13904 of 2009]
Decided on: 08-03-2010
The court should take a lenient view in considering the application for condoning delay and setting aside the abatement when a respondent dies during the pendency of the appeal, especially if the appeal has been pending for several years without being listed for hearing.
Headnote:
Delay - Abatement - Condoning delay in setting aside abatement
Fact of the Case:
The appellants filed an appeal in 1993, which was pending for several years without being listed for hearing. The first respondent died in 1998, but the appellants were unaware of this fact until 2006. The appeal was dismissed as having abated due to failure to bring the legal representatives of the deceased on record within the prescribed time.
Finding of the Court:
The court found that the delay in filing the application for abatement was explained, and the appellants' counsel was absent when the first respondent's counsel informed the court about the death. The court considered it a fit case to set aside the abatement and allowed the appeal, restoring it to the High Court for expeditious disposal.
Issues: Delay in filing application for abatement, setting aside abatement, bringing legal representatives of deceased on record
Ratio Decidendi: The court should take a lenient view in considering the application for condoning delay and setting aside the abatement when a respondent dies during the pendency of the appeal, especially if the appeal has been pending for several years without being listed for hearing.
Final Decision: The appeal was allowed, the impugned order was set aside, and the second appeal was restored to the High Court with the abatement condoned, allowing the appellants to bring the legal representatives of the deceased first respondent on record.
Judgment
1. 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 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.
Appeal allowed.
