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2011 (85) ALR 144
HIGH COURT OF JUDICATURE AT ALLAHABAD
Pankaj Mithal, J.
Raghuveer Prasad And Another –Appellant
Versus
Vishnu Dutt- Respondent
SECOND APPEAL No. - 470 OF 2002
Decided on : 25.1.2011
Abatement - Cancellation of Sale Deed - Order 22 Rule 9 C.P.C. - Section 5 of the Limitation Act - Abatement Application No.19041 of 2006, Recall Application No.164306 of 2009, Application No.164308 of 2009, Application No. 270791 of 2009, Substitution Application No.161691 of 2009, Delay Condonation Application No.161690, Application No.30071 of 2010 - The court allowed all the applications, recalled the order dated 18.7.2007, set aside the abatement, condoned the delay in seeking substitution, and permitted the plaintiffs-appellants to substitute the heirs and legal representatives of the deceased as mentioned in the application as defendant-respondent Nos. 1/1, 1/2, 1/3 and 1/4 subject to payment of cost of Rs.6,000/-.
Fact of the Case:
The appeal arises from a suit for cancellation of a sale deed. The sole defendant-respondent died, and the appeal stood abated automatically. The plaintiffs-appellants filed multiple applications to recall the order of abatement, condone the delay, and substitute the heirs and legal representatives of the deceased defendant-respondent.
Finding of the Court:
The court found that the delay in seeking substitution was not intentional or mala fide, and the conduct of the plaintiffs-appellants did not warrant castigation as irresponsible litigants. The court emphasized the primary role of adjudicating disputes and advancing substantial justice, and allowed all the applications to set aside the abatement and permit substitution.
Issues: The main issue was whether the delay in seeking substitution of the deceased defendant-respondent's heirs and legal representatives should be condoned.
Ratio Decidendi: The court applied the principle that rules of limitation are not meant to destroy the rights of the parties but to prevent dilatory tactics, and emphasized a liberal approach in setting aside abatement and condoning delays when inaction or negligence is not intentional or mala fide. The court also considered the legal position established in previous cases regarding the setting aside of abatement and the liberal construction of 'sufficient cause' under Section 5 of the Limitation Act and Order 22 Rule 9 C.P.C.
Final Decision: The court allowed all the applications, recalled the order dated 18.7.2007, set aside the abatement, condoned the delay in seeking substitution, and permitted the plaintiffs-appellants to substitute the heirs and legal representatives of the deceased as mentioned in the application as defendant-respondent Nos. 1/1, 1/2, 1/3 and 1/4 subject to payment of cost of Rs.6,000/-.
Pankaj Mithal, J. - Heard Sri Ateeq Ahmad Khan, holding brief of Sri Tarun Kumar Malviya, learned counsel for the plaintiffs-appellants and Sri S.N. Mishra, learned counsel appearing for the heirs and legal representatives of the deceased respondent.
2. This appeal arises from a suit for cancellation of a sale deed.
3. In the appeal the sole defendant-respondent Vishnu Dutt, died on 29.8.04 which is not disputed and is established by the death certificate on record. However, plaintiffs-appellants failed to file any application to get his heirs and legal representatives substituted. The appeal as such stood abated automatically. However, the heirs and legal representatives of the deceased sole defendant-respondent on 16.9.06 moved an application alleging that the defendant-respondent has died on 29.8.04 and in the absence of any application to get his heirs and legal representatives substituted the appeal be directed to be abated. The copy of the said application was duly served upon the counsel representing the plaintiffs-appellants. The above application was not opposed by filing any counter affidavit and at the same time no application either for setting aside abatement was moved or any application for condoning the delay and getting the heirs and legal representatives substituted was filed. Accordingly, when the above Abatement Application No.19041 of 2006 was listed before the Court, an order of abatement was passed on 18.7.07. The order reads as under:-
"The sole respondent Vishnu Dutt is said to have died on 29.8.04. The time for substituting his heirs and legal representatives, as such, has expired but till date no substitution application has been filed. Copy of abatement application was served upon the learned counsel for the appellant on 11.9.06.
In view of above, the appeal is dismissed as abated.
Pankaj Mithal J.
18.7.2007"
4. Thereafter, plaintiffs-appellants by engaging a new counsel filed an Application No.164306 of 2009 on 30.6.09 for the recall of the order dated 18.7.07 along with an Application No. 164308 of 2009 for condoning the delay in filing the same. Another application to the same effect being Application No.270791 of 2009 was also filed. Apart from above applications, a Substitution Application No.161691 of 2009 along with an application No. 161690 of 2009 to condone the delay in filing the same was filed by the plaintiffs-appellants on 30.6.09.
5. The plaintiffs-appellants thereafter by yet another new counsel moved an Application No.30071 of 2010 to amend the substitution application aforesaid and for adding a prayer for setting aside the abatement.
6. To all these applications counter affidavits have been filed on behalf of the heirs and legal representatives of the deceased defendant-respondent and it has been contended that the plaintiffs-appellants are highly negligent and careless in pursuing the appeal. They had the knowledge of the death of defendant-respondent from the very beginning as they happened to be resident of the same village. The heirs and legal representatives of the defendant-respondent were substituted in mutation appeal which was pending between the parties in connection with the land involved in the suit/appeal.
7. The submission of Sri Khan is that the plaintiffs-appellants are illiterate villagers. They never received any information from the earlier counsel about filing of the abatement application and as such they could not file reply to the same and the substitution application immediately on the filing of the abatement application. The counsel never suggested for moving any application for substitution. They cannot be penalized for the mistake of the counsel. It is for this reason, the counsel was changed and thereafter application to recall the abatement order and thereafter for substituting the heirs and legal representatives of the deceased defendant-respondent was moved.
8. I have given my anxious consideration to the entire facts and circumstances of the
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