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PATNA HIGH COURT
Sunil Dutta Mishra, J.
Bhoj Manjhi – Appellant
versus
Munni Devi and Ors. – Respondent
Miscellaneous Appeal No.972 of 2017
Decided on 20.8.2025
Counsel for the Parties:
For the Appellant:Mr. Naresh Prasad, Advocate
For the Respondents:Mr. Setu Prateek, Advocate
IMPORTANT POINT
Substitution and abatement – Decisive factor in condonation of delay is not length of delay but sufficiency of a satisfactory explanation – Appellant is not expected to keep checking whether contesting respondent is alive or not.
Headnote:
Civil Procedure Code, 1908 – Order 22 Rules 9 and 10A – Limitation Act, 1963 – Section 5 – Substitution and abatement – Condonation of delay – Decisive factor in condonation of delay is not length of delay but sufficiency of a satisfactory explanation – It is difficult to state any strait-jacket formula which can be applied to all cases without reference to peculiar facts and circumstances of a given case – Expression ‘sufficient cause’ implies presence of legal and adequate reasons – Sufficient cause should be such as it would persuade Court, in exercise of its judicial discretion, to treat delay as an excusable one – Court should not punish appellant for his ignorance of death of respondent, by refusing to set aside abatement – Lack of diligence or negligence can be attributed to an appellant only when he is aware of death and fails to take steps to bring legal representatives on record – Appellant was neither negligent nor there is any inaction or default on his part – Court ought to have exercised to advance substantial justice, when delay was not on account of any dilatory tactics , want of bona fides, deliberate inaction or negligence on part of appellant – Appellant is not expected to keep checking whether contesting respondent is alive or not – Delay condoned and abatement set aside – Appellate court directed to proceed further with hearing of appeal in accordance with law. (Paras 8, 12, 13, 14 and 15)
Result: Appeal allowed.
JUDGMENT (C.A.V.)
Heard learned counsels for the parties.
2. The instant appeal has been preferred against the order dated 31.08.2017 passed by learned Additional District Judge-V, Gopalganj in Title Appeal No.32 of 2005, wherein and whereby the said title appeal has been ordered as abated on the ground that respondent no.5 was died on 23.02.2013 and the substitution petition was filed on 31.07.2017 with much delay and no appropriate reason was shown on record for setting aside the abatement.
3. The facts in brief are that appellant filed Title Suit No.207 of 1991 in the Court of learned Munsif, Gopalganj for declaration of his title and confirmation of his possession over the disputed land which was dismissed vide judgment and decree dated 28.01.2005 against which the appellant preferred Title Appeal No.32 of 2005 in the Court of learned District Judge, Gopalganj which was later on transferred in the Court of learned Addl. District Judge-V, Gopalganj. During the pendency of appeal, respondent no.5, namely, Gangazali Devi (daughter of deceased Puran Manjhi/respondent no.2) died on 23.02.2013 leaving behind two sons and her husband. The appellant filed a petition alongwith affidavit under Order 22 Rule 4 C.P.C. on 31.07.2017 for expunging the name of respondent no.5 and for substituting her heirs and legal representatives. The appellant also filed a limitation petition for setting aside the abatement on the ground that the appellant had no knowledge regarding the death of respondent no.5 whose marriage was solemnized in a village Bedupur, P.S.-Taraiya Sujan, District-Gopalganj which is far away about 150 K.M. from the village of the appellant. It is further stated that the son of respondent no.5, namely, Sunil Kumar filed an affidavit regarding the death of his mother disclosing heirs and legal representatives then he got information regarding her death. After hearing the parties, learned appellate court below held that the said petitions have been filed after too much belated stage of expiry of stipulated period which is not permissible and the instant appeal is liable to be abated and accordingly, vide impugned order dated 31.08.2017 held that the appeal is abated.
4. Learned counsel for the appellant submitted that the impugned order has been arbitrarily passed without considering the reasons given in the petition that appellant had no knowledge regarding the death of respondent no.5 in view of the fact that appellant is resident of Gopalganj District and respondent no.5 was resident of Kushi Nagar District in Uttar Pradesh which is 150 K.M. far away from the village of the appellant. The appellant had filed a substitution petition under Order 22 Rule 4 of C.P.C. on 16.07.2016 regarding the death of respondent no.2, namely, Puran Manjhi who died on 26.04.2016 which was heard by the Court and allowed the same on 17.01.2017. This shows that earlier the appellant had no knowledge about the death of respondent no.5 and when he came to know about the same on filing affidavit by her son, the appellant filed the required petition in accordance with law with proper explanation of delay in filing the same within stipulated period. Learned counsel for the appellant further submitted that the impugned order is bad in law and facts and is liable to be set aside.
5. On the other hand, learned counsel for the respondents submitted that the appeal had been abated and sufficient cause has not been shown for setting aside the abatement. The abatement is automatic and not even a specific order is required to be passed by the Court in that behalf. A right accrues in favour of the respondents in appeal and it will be unfair and unjust to take away their vested right on such grounds stated by the appellant and the appellate court below has rightly passed the impugned order which requires no interference by this Court.
6. Law casts a duty upon the plaintiff or the appellant, as the case may be, to bring the legal representatives of the deceased on
