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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Devashis Baruah, J.
On The Death Of Osman Ali His Legal Heirs And Ors. – Petitioners
Versus
Kashem Ali And S/O. Lt. Akkas Ali And Ors. – Respondents
I.A.(Civil)/1308 of 2021, 511, 554, 540, 546, 531 of 2022
Decided On : 10-06-2022
Limitation Act – Sections 5 and 14 - Condonation of delay - Seeking setting aside of abatement as well as for substitution of the legal - Interlocutory Application being I.A(Civil) application for condonation of delay of 3063 days in filing application for setting aside abatement of appeal in respect to Appellant - Ground assigned in the said application is that the in an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay, the applicant is required to show two things. First is that, there was a sufficient cause which means adequate and enough reason which had prevented the applicant to approach this Court within a period of limitation. Secondly, even after showing sufficient cause, an obligation is cast upon the Court whether in its discretion it should condone the delay. For exercise of such discretion, it would require the consideration of all relevant facts and it is at that stage, the diligence of the party or its bona fides fall for consideration- In case a party is found to be negligent, or for want of bona fide on its part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground for condoning the delay. (Para19)
Finding of the Court:
It is also noteworthy to mention that not only the applicants have not shown any sufficient cause but also their conduct also suffers from negligence, want of bona fide as well as have not acted diligently - Appellant No.3(b) not to take any steps in spite of having knowledge about pendency of appeal in spite of the Appellant No.1, Appellant No.2(a) and Appellant No.3(a) having expired makes it abundantly clear that the conduct of the applicants suffers from negligence - Want of bona fide as well as want of diligence. Merely stating that they did not know that such application is required to be filed cannot be a justified ground for condoning the delay - There was no steps taken by the appellants as would be apparent from a perusal of Office and the orders being passed by the Lawazima Court - It is under such circumstances that this Court vide an order observed that the Second Appeal had abated and accordingly closed the same - No steps have been taken for substitution of legal representatives of Respondent filing of Interlocutory Application also shows the negligence on the part of the applicants to take steps in respect to instant matter - Court therefore, finds no sufficient cause for condoning the delay in the applications filed herein and also finds that the applicants herein as well as the Appellant being negligent and the actions being not bona fide dismisses all Interlocutory Applications filed for condonation of delay.
Result: Ordered Accordingly
JUDGMENT :
1. Heard Mr. M. A. Sheikh, the learned counsel appearing on behalf of the Applicants and Mr. M.H. Rajbarbhuiya and Mr. A. Mannaf, the learned counsels appearing for the Respondents.
2. All the above applications are the applications under Section 5 for condonation of delay in filing the application seeking setting aside of the abatement as well as for substitution of the legal representatives.
3. The Interlocutory Application being I.A(Civil) No. 1308/2021 is an application for condonation of delay of 3063 days in filing the application for setting aside the abatement of appeal in respect to Appellant No.1. The ground assigned in the said application is that the Applicants’ father filed the connected Second Appeal alongwith others and he was conducting the case and the applicants even after the death of their father were not aware of the case but subsequently when the surviving respondents declared in public in August, 2019 that there was a case in the High Court filed by their father and others which the Respondents won, then the applicants approached the Appellant No. 3(b) and enquired from him whether he had any knowledge of filing of a case by their father against the Respondents and then the Appellant No. 3(b) replied in the positive and also said that the Applicants’ father has filed the case in the High Court alongwith him and other appellants and then the Applicants said to the Appellant No. 3(a) that they had come to know from the Respondents that they won the said case. The original Appellant No.1 as per the said application expired on 01.02.2013.
4. To the said application, the Opposite Party No. 7 filed an Affidavit-in-Opposition objecting to the condonation of delay of 3063 days. A perusal of the said Affidavit-in-Opposition shows that the statements made in the application for condonation of delay is not at all believable as the source of the information of the applicants regarding the appeal filed by their father was Appellant Nos. 3(b) and 3(a). But there was no step taken by the said Co-Appellant Nos. 3(b) and 3(a) for setting aside the abatement of the appeal. It was further mentioned that the applicants herein as per the age mentioned in the application are all above 50 years (nearing 60 years of age) and it was not believable that they had no knowledge about their father filing an appeal. Further to that, it was also mentioned that in the said application they have named one Kashem Ali who is the Respondent No.1 but the said person had died on 18.01.2021 as well as the Respondent No.6, one Saban Ali who also died on 05.12.2018. These persons were co-villagers and as such the applicants have due knowledge about the death of the persons. It was also mentioned that the appeal in question was filed in the year 2010 against a dead person whose name is Azimudin Sk. who died much prior to filing of the appeal and the subject matter of the suit being joint property of the Respondents, the appeal filed in the year 2010 against the dead man i.e. the Respondent No.7 is not at all sustainable in law. On the basis of the same, it was stated in the said Affidavit-in-Opposition that the version of the applicants cannot at all be accepted.
5. The Interlocutory Application i.e. I.A.(Civil) No.511/2022 is an application for condonation of delay of 3040 days in filing the application for setting aside the abatement in respect to the Appellant No.2(a) who expired on 19.08.2011. A perusal of the said application shows that the applicants herein who are the legal representatives of the original Appellant No.2(a) had stated that their father filed the connected Second Appeal alongwith others and their father was conducting the case and the applicants even after the death of their father were not aware of the case. But, subsequently, when the surviving respondents declared in public in the last week of August 2019, that there was a case in the High Court filed by Bodiyot Jamal (original Appellant No.2(a)) and others was won
In case a party is found to be negligent, or for want of bona fide on its part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be ....
The main legal point established in the judgment is the need for a liberal construction of 'sufficient cause' under Section 5 of the Limitation Act, 1963, to advance substantial justice.
The court emphasized that delay in bringing legal heirs on record can be condoned if satisfactorily explained, promoting substantial justice over procedural rigidity.
The court emphasized that sufficient cause for delay in filing an appeal must be adequately justified, and negligence or lack of bona fides can bar condonation.
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