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High Court of Karnataka
THE HONOURABLE MR. JUSTICE ASHOK B. HINCHIGERI
Smt. Shamavathi & Others
Versus
Smt. Appi S Pergade & Others
Writ Petition No.19350 of 2009 (GM-CPC) and Writ Petition No.19424 of 2009
Decided on : 18-08-2009
CONSTITUTION OF INDIA - Articles 226 & 227 :[Ashok B. Hinchigeri,J] Writ Petition - Equity considerations -Conflict between Law and Equity - Latin Maxim "Dura Lex Sed Lex" which means the Law is hard, but it is the law - Discussed - Held, Though justice is more important than the law itself, but justice has to be administered according to law only. Justice according to law is a principle as old as hills. The Courts are to administer law, however inconvenient it may be. In case of conflict between the law and equity, it is the law which has to prevail. Whatever may be the pitiable situations, but on that score, the statutory provisions cannot be put aside. Therefore, the Courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. On facts held, The applicant/parties have to show that the delay in taking certain steps are not for the reasons which indicates their negligence in the matter. However, what would be such steps would depend upon the facts and circumstances of each case. Writ Petition is allowed imposing cost of Rs. 10,000/- on the petitioners.
LIMITATION ACT, 1963 - Article 120: [Ashok B. Hinchigeri, J] Period of limitation for bringing the legal representatives of a deceased party on record - Whether the period of limitation runs from the actual date of death or from the date of knowledge of death - Held, That the period of limitation of for bringing the legal representatives of the deceased party on record is 90 days from the date of his death. Knowledge of death has no relevancy in regard to the operation of Article 120. The application for the substitution of the legal representatives of the deceased defendant filed beyond the period of prescribed limitation has to be accompanied by two applications - One application for setting aside the abatement and another application for the condonation of delay under Section 5 of the Limitation Act. Total period of limitation taken together under Article 120 and 121 is 150 days. Hence after lapse of 150 days from the date of death, the plaintiffs or the petitioners have to necessarily invoke Section 5 of the Limitation Act. Thus, the Court answer the second question by holding that an application for the condonation of delay under Section 5 of the Limitation Act is certainly necessary when the application for setting aside the abatement is filed beyond 150 days from the date of death of the defendant. If no such application is made, the abatement stands. If no application under Section 5 of the Limitation Act is filed, mere filing of applications to set aside the abatement and impleading the legal representatives are not sufficient. An application to condone the delay explaining the reasons for delay must also be filed.
The petitioners have challenged the order, dated 18.6.2009 passed by the III Addl. District Judge, D.K., Mangalore in M.A.No.9/2008 and the order, dated 14.9.2007 passed by the I Addl. Civil Judge (Sr.Dn.), Mangalore on I.A.Nos 6 and 7 in O.S. No.40/1996.
2. The facts of the case in brief are that the petitioners filed the suit for partition, Separate possession, etc. During the pendency of the suit, the defendant No.1, Shantharama Pergade died on 10.5.2000. The petitioners filed two IAs. – I.A.No.6 for substituting the legal representatives of the deceased defendant No.1 and I.A.No.7 for setting aside the abatement. The said I.A.s were rejected by the Trail Court, by its common order, dated 14.9.2007.
3. Feeling aggrieved by the same, the petitioners preferred M.A.No.9/2008. The learned Appellate Judge dismissed the said appeal by confirming the orders of the Trail Court. On suffering the concurrent orders, this petition is presented.
4. Sri Sanath Kumar Shetty, the learned counsel appearing for the petitioners submits that both the Courts below have taken a pedantic and hypertechnical view of the matter. He submits that the first defendant died on 10.5.2000 and the necessary applications came to be filed on 11.10.2000. According to him, 90 days’ period prescribed for making these applications for brining the legal representatives of the deceased first defendant on record expired on 9.8.2000. In this regard, he has brought to my notice Article 120 of Limitation Act, 1963, which prescribes 90 days as the period of limitation for brining the legal representatives of a deceased party on record, from the date of his death. He further submits that under Article 121, the application for setting aside the abatement has to be made within 60 days from the date of the abatement. The date of abatement in this case being 9.8.2000, 60 days’ period expired on 8.10.2000. Thus, there is a delay of few days in making the two applications is the submission of Sri Sanath Kumar Shetty.
5. Sri Shetty also relies on a judgment passed by the Hon’ble Supreme Court in the case of Bhagwan Swaroop and Others v. Mool Chand And Others, reported in AIR 1983 SC 355 and contends that technical rules of procedure can not be given precedence over doing substantial justice. The Hon’ble Supreme Court has taken the considered view that abatement can be set aside at any time, if sufficient cause is shown.
6. Sri Shetty sought to draw the support form the Hon’ble Supreme Court’s decision in the case of S.B. Noronah v. Prem Kumari, reported in AIR 1980 SC 193. The relevant paragraph of the judgment is extracted below:
“6. Pleadings are not statutes and legalism is not verbalism. Common sense should not be kept in cold storage when pleadings are construed. It is too plain for words that the petition for eviction referred to the lease between the parties which undoubtedly was in writing. The application, read as a whole, did imply that and we are clear that law should
not be stultified by courts by sanctifying little omissions as fatal flaws. The application for vacant possession suffered from no verbal lacunae and there was no need to amend at all. Parties win or lose on substantial questions, not ‘technical tortures’ and courts cannot be ‘abettors’.”
7. Mr. Shetty also bring to my notice the decision of the Hon’ble Supreme Court in the case of Ramnath Sao Alias Ram Nath Sahu and Others v. Gobardhan Sao and Others, reported in ILR 2003 KAR 514, wherein it is held that the expression “sufficient cause” within the meaning of Section 5 of the Limitation Act, 1963 has to be given a liberal consideration so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. The refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. Just because there is some lapse in every case of delay on the pa
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