The duty of the appellant's counsel to inform about the death of the client, the provision for condonation of delay in filing an application for setting aside abatement, and the preference for substantial justice over technical considerations were the central legal principles established in the judgment.

1. This appeal is directed against an order dt. 9th May, 1985, passed by Shri R.V. Ram, Subordinate Judge, Aurangabad, in Title Appeal No. 132 of 1973/32 of 1975 whereby and whereunder the learned Court held that the appeal had abated and thereby it rejected the application filed on behalf of the appellants under S.5 of the Limitation Act for setting aside abatement.

2. It appears that in the said appeal the sole respondent died on 8th Nov., 1984. However, no step was taken by the appellants for substituting the heirs and legal representatives of the aforementioned respondent Dharamdeo Singh. During the course of argument only on 18th April, 1985, the learned counsel for the respondents intimated to the Court that the said respondent died and an application for substitution was filed on the next date, i.e., on 19th April, 1985. The appellant in the aforesaid application stated that the respondent was a resident of a different village and, as such he was not aware of the death of the said respondent.

3. The Court below without considering the aforementioned stand taken on behalf of the appellant rejected the said application. In terms of O.22, R.10A of the Civil P.C. a duty is cast upon the learned counsel for the appellant to inform about the death of his client. Presumably, even the counsel for the sole respondent was not aware of it earlier as otherwise there was no reason as to why the aforementioned intimation was given only during the course of hearing on 18th April, 1985. There cannot be any doubt whatsoever that normally an application for setting aside the abatement should be filed within the prescribed period of limitation, i.e., 90 days, but the very fact that the Parliament in its wisdom has enacted O.22, R.9 of the Civil P.C. and has further provided for filing of an application under S.5 of the Limitation Act in relation thereto clearly goes to show that in a given case where a party shows sufficient cause for non-substitution of heirs of the respondent the delay in filing such application may be condoned and the abatement order set aside. In this case, appellants contention has been rejected without assigning any reason whatsoever. In the case of Collector, Land Acquisition, Anantnag V/s. Mst. Katiji, AIR 1987 SC 1353, the Supreme Court has clearly held that the matter relating to the condonation of the delay should be analysed from a broad angle.

4. The Supreme Court in the aforementioned case has clearly held as follows :-

". . . . . . . . When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. . . . . . . . ."

5. In this view of the matter, the impugned order cannot be sustained. Accordingly, this appeal is allowed and the impugned order is set aside and the application of the appellants is allowed, subject to payment of a sum of Rs. 150.00 to Shir Murli Manohar Prasad No. 2, learned counsel appearing on behalf of the respondents by the appellants within a period of six weeks from today.