JUDGMENT :

Prafulla C. Pant, J.

Civil Appeal No. 7011 of 2015

This appeal is directed against order dated 02.01.2014, passed by High Court of Judicature at Allahabad, Lucknow Bench, whereby said court has dismissed the Writ Petition No. 58 of 2008 (M/S), affirming the order dated 10.10.2007, passed by the Additional District Judge/Special Judge (E.C.Act), Gonda, in Miscellaneous Case No. 08 of 2006. By said order, the first appellate court condoned the delay of more than eleven years, and allowed the substitution application moved by the respondent, in Civil Appeal No. 124 of 1987 which stood abated on 14.03.1995, and thereafter dismissed in default on 21.03.1997.

2. We have heard the learned counsel for the parties and perused the papers on record.

3. This is the second round of litigation between the parties. In the first round, Ram Narayan, father of respondent Kaushaliya Devi, instituted Original Suit No. 277/66 on 16.12.1966 before Munsif, Gonda. In said suit, Ram Narayan pleaded that the defendant (predecessor in title of the present appellants) was his tenant, and the tenancy was terminated vide notice dated on 02.11.1966. The defendant disputed title of the plaintiff. And after full trial, the suit was dismissed on which, Ram Narayan preferred Civil Appeal No. 107 of 1973. The same was also dismissed on 20.04.1977 with the observation that since issue of ownership of the plaintiff is disputed, and relationship of landlord and tenant between parties not proved, as such, the plaintiff was at liberty to file fresh suit on the basis of ownership. Thereafter, unsuccessful plaintiff (Ram Narayan) started fresh litigation by filing Original Suit No. 45 of 1980 against Ram kali (predecessor in title of appellants) and Gauri Shanker seeking declaration of title and damages. This suit was also contested, and after recording the evidence and hearing the parties, the same was dismissed vide judgment and decree dated 21.07.1987 (Annexure P-1). On which the plaintiff filed Civil Appeal No. 124 of 1987. During the pendency of the appeal, defendant Ram Kali died, and her legal representatives were substituted. Thereafter appellant Ram Narayan (original plaintiff) died on 14.12.1994. Since no substitution by his heirs was sought in the appeal filed before first appellate court, as such, the appeal stood abated on expiry of ninety days of death of plaintiff-appellant, and ultimately the appeal was dismissed in default on 21.03.1997.

4. After a period of eleven years, on 13.04.2006, substitution application (Annexure P-4) was moved by the present respondent Kaushaliya Devi along with application (Annexure P-3) under Section 5 of Limitation Act, 1963. The defendants filed objections to said application. After hearing the parties, application for condonation of delay was allowed, vide order dated 10.10.2007 (Annexure P-7), passed by the first appellate court i.e., Additional District Judge/Special Judge (E.C. Act), Gonda. Aggrieved by said order, the present appellants filed Writ Petition No. 58 of 2008 (M/S) before the High Court. The writ petition was earlier allowed ex-parte on 05.07.2013 (Annexure P-10). It appears that writ petition was got restored, and finally dismissed after hearing the parties, vide impugned order dated 02.01.2014, challenged in this appeal.

5. Shri Pradeep Kant, Senior Advocate, on behalf of the appellants (defendants) argued before us that seeking condonation of delay of more than 10 years is nothing but abuse of process of law, and it defeats the very purpose of period of limitation of ninety days provided in Article 120 of Schedule of Limitation Act, 1963. Reliance is placed on behalf of the appellants in the case of Karam Kaur v. Jalandhar Improvement Trust and Others, (2014) 6 SCC 409, in support of the above argument.

6. On the other hand, learned counsel for the respondent submitted that the courts below have done the substantial justice as Kaushaliya Devi, daughter of plaintiff, who was a married woman, was livin