Ramua (Dead) vs Kodulal - 2022 Supreme(MP) 72

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(MP) 72

IN THE HIGH COURT OF MADHYA PRADESH
Arun Kumar Sharma, J.
Ramua (Dead) & Another v. Kodulal & Another
Second Appeal No. 1558 of 2008 (Jabalpur): against the judgment and decree dated 22.8.2008 passed by the Additional Judge to the Court of Third Additional DistrictJudge (Fast Track Court), Shahdol in C. A. No.140-A/2007; Decided on15.3.2022

Advocates:
Sushil Kumar Tiwari for appellants;
P. C. Paliwal for respondent No.1;
Yogesh Mishra, Panel Lawyer for respondent No. 2/State.

Headnote:
(1) Limitation Act, 1963 -- S. 5 -- condonation of delay -- delay of 1016 days -- mere allegations about belated knowledge of death of opposite party not sufficient -- approaching Court with unclean hands itself is ground for rejection of application -- even if "sufficient cause" has to receive liberal construction, it must squarely fall within concept of reasonable time and proper conduct of party concerned
-- liberal construction cannot be equated with doing injustice to other party -- applicant totally failed to show "sufficient cause" to condone delay -- also failed to show why immediate steps were not taken
-- application rejected. (2010) 8 SCC 684 and in 2013 (3) MPLJ 5 followed. ILR [2008] MP 1763 relied on. [Paras 8 to 11 & 14
(2) Limitation Act, 1963 -- S. 5 -- condonation of delay -- delay of 525 days -- absence of satisfactory and reasonable explanation of day-to-day delay -- application filed by misrepresenting facts -- vague and general cause shown for condoning delay which are not under purview of "sufficient cause" -- has not come with clean hands -- tried to misguide and mislead Court by putting wrong facts -- application rejected. 2013 (3) JLJ 5 (SC) followed. 2013 (1) MPLJ 662 relied on. [Para 17
¼1½ ifjlhek vf/kfu;e] 1963 && /kkjk 5 && foyac dh ekQh && 1016 fnol dk foyac && fojks/kh i{kdkj dh e`R;q dh tkudkjh foyac gksus ds ckjs esa ek= vfHkdFku i;kZIr ugha && U;k;ky; esa v'kq) eu ls vkuk Lo;a gh vkosnu dh ukeatwjh dk vk/kkj gksrk gS && ßi;kZIr dkj.kÞ dk mnkj vFkkZUo;u fd, tkus ij Hkh og ;qfDr;qDr le; vkSj lacaf/kr i{kdkj ds mfpr vkpj.k dh ladYiuk ds Hkhrj HkyhHkk¡fr vkuk vko';d && mnkj vFkkZUo;u vU; i{kdkj ds lkFk vU;k; djus ds leku ugha ekuk tk ldrk && vkosnd foyac dh ekQh ds fy, ßi;kZIr dkj.kÞ n'kkZus esa iw.kZr% vlQy && ;g Hkh n'kkZus esa vlQy fd rRdky dne D;ksa ugha mBk, x, && vkosnu ukeatwjA ¼2010½8 ,l lh lh 684 rFkk 2013¼3½ ,e ih ,y ts ¼mPpre U;k-½ vuqlfjrA vkb ,y vkj ¼2008] ,e ih 1763 voyafcrA ¼iSjk 8 ls 11 ,oa 14
¼2½ ifjlhek vf/kfu;e] 1963 && /kkjk 5 && foyac dh ekQh && 525 fnol dk foyac && fnu&izfrfnu ds foyac ds lek/kkuizn rFkk ;qfDr;qDr Li"Vhdj.k dk vHkko && rF;ksa dk nqO;Zins'k djrs gq, vkosnu izLrqr && foyac dh ekQh ds fy, vLi"V vkSj lkoZykSfdd dkj.k nf'kZr tks ßi;kZIr dkj.kÞ dh ifjf/k esa ugha vkrs && vkosnd fueZy eu ls ugha vk;k && xyr rF; crk dj U;k;ky; dks cgdkus vkSj Hkzfer djus d iz;Ru fd;k && vkosnu ukeatwjA 2013¼3½ ,e ih ,y ts 662 ¼mPpre U;k-½ vuqlfjrA 2013¼1½ ,e ih ,y ts 662 voyafcrA ¼iSjk 17

JUDGMENT

1. Today the case is listed for hearing on IA No.6938/2021 under Order 22 Rule 9 of CPC; IA No.6939/2021 under section 5 of the Limitation Act and also IA No.6937/2021 under Order 22 Rule 3/11 of CPC. All these applications have been fled by respondent No. 1 on 20.9.2021.

2. I.A. No.6938/2021 under Order 22 rule 9 of the Code of Civil Procedure fled seeking setting aside of the abatement is barred by time. It is fled accompanied by an application i.e. I.A. No.6939/2021 under section 5 of the Limitation Act seeking condonation of delay.

3. On 20.9.2021 the application i.e. IA No.6938/2021 under Order 22 rule 9 of the Code of Civil Procedure for setting aside of the abatement against the deceased appellant No. 1 has been fled by respondent No. 1 stating that during the pendency of the crossappeal, appellant No. 1 Ramua S/o. Devi Mehra died on 12.7.2018 and respondent no.1 came to the knowledge of death of appellant no. 1 in the month of September, 2021 frst time and thus, respondent no.1 was required for substitution of his legal representatives of the deceased appellant no. 1 in the memo of cross-appeal within a period of 90 days but the same was not done within the prescribed period of time and thus, the cross-appeal is abated against the deceased appellant No.1 on 10.10.2018. The limitation for fling the application was up to 9.12.2018 and this application was also not fled within a period of 60 days from the date of abatement. It is further contended that the counsel appearing on behalf of the appellants had not informed respondent No. 1 and even this Court regarding the death of appellant No. 1. Respondent No. 1 is residing in remote area and is a rustic villager and he belongs to rural folk, or is poverty stricken or illiterate and is mostly not aware of the necessity of taking steps for substitution on the death of a party.

4. On 20.9.2021 the accompanied application i.e. I.A. No.6939/2021 under section 5 of the Limitation Act has been fled stating that the cross-appeal is abated against the deceased appellant No.1 on 10.10.2018. The limitation for fling the application under Order 22 rule 9 of CPC was up to 9.12.2018 and this application was also not fled within a period of 60 days from the date of abatement. Hence, this application is barred by 1016 days which requires to be condoned inter-alia on the grounds that respondent No. 1 is a 78 years old and sick person and is a very hopeless state of health. Due to Covid-19 corona virus (pandemic), respondent No. 1 could not establish connection between his relatives and close friends. The delay in fling the application is due to bona-fde and with sufficient cause. The approach has to be liberal and judicious guided by the paramount consideration of not depriving a litigant ordinarily of adjudication of rights on merits. Hyper technical, too strict, and pedantic approach as may cause injustice has to be avoided. Hence, prayer is made to condone the delay.

5. IA No.6937/2021 under Order 22 rule 3/11 of CPC for bringing the legal representatives of the deceased -appellant No. 1 Ramua S/o. Devi Mehra in the memo of cross-objection / appeal has been fled. The application is supported by an affidavit of respondent No. 1 / plaintiff Kodulal.

6. Learned counsel for the appellants refuting the aforesaid contentions contended that the application (IA No.6938/21) under Order 22 rule 9 of CPC has not been fled within the prescribed time period and there is inordinate delay of 1016 days for which day to day explanation has not been given even no satisfactory explanation and sufficient cause has been shown. Moreover, the appellants / defendants fled the present second appeal on 20.11.2008 against the judgment and decree dated 22.8.2008 passed by Additional Judge to the Court of Third Additional District Judge (Fast Track Court) Shahdol in C. A. No.140-A/2007, whereby the said appeal preferred by respondent no. 1 / plaintiff Kodulal was partly allowed and passed the decree that po