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2012 Supreme(Chh) 138
HIGH COURT OF CHHATTISGARH, BILASPUR
N. K. Agarwal, J.
RAM BHAROS CHHAPARIYA
Vs.
SMT. NEETA DEVI
First Appeal No. 96 of 2001
Decided on 25-6-2012.
Advocate Appeared:
Mr. H.B. Agrawal, Senior Advocate with Shri Ankush Mishra, Advocate, for the Appellant.
Mr. P.R. Patankar, Advocate, for the Respondent.
The main legal point established in the judgment is that the delay should be condoned only if the applicant is successful in showing that he was prevented from preferring the appeal for sufficient cause, and that the sufficient cause gives jurisdiction to a court to condone the delay.
Headnote:
Abatement - Civil Procedure - Code of Civil Procedure - Order 22 Rule 9, Section 5 of the Limitation Act - Order 22 Rule 3, 4 & 8 - The judgment discusses the consequences of abatement of appeal, the procedure for bringing legal representatives of a deceased party on record, and the application for condonation of delay. It highlights the legal provisions of Order 22 and Section 5 of the Limitation Act, and their interpretation by the court in dismissing the application and appeal.
Fact of the Case:
The plaintiff filed a suit for specific performance of Contract against the original appellant/defendant. The appeal was barred by 11 days, and the appellant filed applications for condonation of delay and exemption from payment of Court Fees. The sole appellant died, and his legal representatives were not brought on record in time. The legal representatives filed applications for setting aside the abatement and for condonation of delay after a period of about 7 years.
Finding of the Court:
The court dismissed the application for condonation of delay and consequently the application for setting aside the abatement, leading to the dismissal of the appeal. The court found that the delay of more than 7 years was not supported by sufficient cause, and the ground taken in the application did not constitute 'sufficient cause' as required by law.
Issues: The issues revolved around the consequences of abatement of appeal, the procedure for bringing legal representatives of a deceased party on record, and the application for condonation of delay.
Ratio Decidendi: The court applied the legal principles of 'sufficient cause' and 'reasonable time' in interpreting the provisions of Order 22 Rule 9 and Section 5 of the Limitation Act. It emphasized that the delay should be condoned only if the applicant is successful in showing that he was prevented from preferring the appeal for sufficient cause, and that the sufficient cause gives jurisdiction to a court to condone the delay.
Final Decision: The court dismissed the application for condonation of delay and consequently the application for setting aside the abatement, leading to the dismissal of the appeal. The court held that the delay of more than 7 years was not supported by sufficient cause, and the ground taken in the application did not constitute 'sufficient cause' as required by law.
1. This order shall govern the disposal of I.A.No.01, an application under Order 22 Rule 9(2)3 read with Rules 3 and 11 of the Code of Civil Procedure (for short 'the Code') for setting aside the abatement of appeal and for substitution of names of the applicants as appellant.s in place of deceased appellant- Ram Sharos and I.A.No.02, an application under Section 5 of the Limitation Act for condonation of delay in filing the application (I.A.No.01) for setting aside the abatement.
2. The plaintiff-respondent tiled a suit for specific performance of Contract against the original appellant/defendant - Ram Sharos.
3. The 6th Additional District Judge, Durg decreed the plaintiff's suit bearing Civil Suit No. 10-A/2000 vide judgment and decree dated 20.01.2001.
4. Feeling aggrieved and dissatisfied with the judgment and 'decree impugned, the instant appeal under Section 96 of the Code has been preferred by the appellant/defendant - Ram Sharos.
5. As the appeal was barred by II days and the Court fee has also not been affixed by the appellant, therefore, the appellant has also filed two applications, one M.C.P.No. M.C.P.I 042/2001 for condonation of delay in filing the appeal and the other, IANo.3180/2001 for exemption from payment of Court Fees. The above two applications are still pending consideration before this Court.
6. Meanwhile, on 01.03.2003, the sole appellant - Ram Sharos died and his legal representatives were not brought on record in time.
7. In execution of the decree, the respondent/plaintiff filed an application for bringing the applicants on record as legal representatives of deceased appellant-Ram Sharos. The same was allowed by the Executing Court vide order dated 25.01.2006.
8. Feeling aggrieved and dissatisfied with the above order, the applicants filed a Writ Petition, i.e. W.P.(C) No.2488/2007 before this Court, inter alia on the ground, the same has been filed by decree-holder after a period of 90 days and the execution proceedings stand abated.
9. This Court, vide order dated 25th September, 2008, dismissed the petition holding the provisions of order 22 Rules 3, 4 & 8 are not applicable to the proceedings in execution of a decree or order.
10. The applicants, i.e., legal representatives of the deceased-appellant have moved an application for bringing them on record in place of deceased appellant for setting aside the abatement and for condonation of delay in filing the application for setting aside the abatement (LA.No.01 and I.A.No.02) on 11.01.2010, i.e. after a period of about 7 (seven) years. In substance, the ground taken in the application for condonation of delay is reproduced as under :
"That about a month ago the applicant Nos. 1, 2, 3, 5 and 6, who have been substituted in the execution case relating to the same ,case before the trial court, engaged Shri Gopal Das Vaishnav a senior advocate, of Durg in that execution case. That on 7-1-2010 Shri G.D.Vaishnav Advocate, as above, told the applicant No.2 Santosh that from the file of the execution case it appears that an appeal against the decree of the trial court has been filed in the high Court. That thereafter the applicant No.2 rushed to Bilaspur on 8-1-2010 contacted counsel here to verify the pendency of any appeal against the decree of the trial court and came to definite knowledge about the pendency of the instant appeal on 8-1-2010."
11. Shri H.B.Agrawal, learned Senior Advocate would submit: the delay has occurred in filing the application for setting aside the abatement due' to mistake of the counsel, and therefore, the delay deserves to be condoned and the application for setting aside the abatement and for substitution of the applicants in place of deceased appellant - Ram Bharos may be allowed. He placed reliance upon the judgment of Supreme Court in the case of Bhagwan Swaroop and others Vs. Moo/chand and others•, in which the Supreme Court has held: the laws of procedure are devised for advancing justice and not impending the same.
12. Per c
