Condonation of delay under Section 5 of the Limitation Act requires 'sufficient cause'; a claim of ignorance of litigation is rejected if the party was actively involved, such as by testifying as a witness, in the original suit proceedings.

COMMON JUDGMENT:

Heard Sri Polavarapu Srinivas, learned counsel for proposed appellant Nos.2 to 5 and Sri Vivek Jain, learned counsel for the respondents.

2. This Second Appeal is preferred by the appellant/appellant/plaintiff aggrieved by the judgment and decree dated 15.11.2027 in A.S.No.225 of 2014 on the file of the learned XVI Additional District and Sessions Judge- cum-XVI Additional Metropolitan Sessions Judge-cum-III Additional Family Court, Ranga Reddy District at Malkajgiri (‘First Appellate Court’), wherein the appeal was dismissed confirming the judgment and decree dated 12.12.2013 in O.S.No.289 of 2008 on the file of the learned Principal Junior Civil Judge at Medchal (‘trial Court’), wherein suit filed for perpetual injunction against the respondents/respondents/defendants, has been dismissed.

3. In the present second appeal, I.A.Nos.1 to 3 of 2026 are filed by the petitioners/proposed appellant Nos.2 to 5 to condone delay of 1640 days in filing application to set aside abatement caused due to death of the sole appellant, to set aside the abatement and to bring proposed appellant Nos.2 to 5 on record respectively.

4. A common affidavit is filed by proposed appellant Nos.2 to 5 in I.A.Nos.1 to 3 of 2026 stating that the deponent i.e., proposed appellant No.3 is son, proposed appellant No.2 is wife and proposed appellant Nos.4 and 5 are son and daughter of the deceased-appellant. The proposed appellant Nos.2 to 5 are not aware of the pendency of the second appeal or its preceding litigation and only when proposed appellant Nos.2 to 5 received communication from the learned counsel for the deceased- appellant on record on 21.03.2026 informing that the second appeal is abated, proposed appellant Nos.2 to 5 have filed I.A.Nos.1 to 3 of 2026. In the said circumstances, it is stated that the delay of 1640 days is not intentional or willful and therefore, prayed that the I.A.Nos.1 to 3 of 2026 be allowed.

5. The respondents opposed I.A.Nos.1 to 3 of 2026 stating that the sole appellant passed away on 28.04.2021, the limitation period is only 90 days to bring legal heirs on record and therefore, the second appeal stood abated on 27.07.2021. The respondents denied the case of proposed appellant Nos.2 to 5 about lack of knowledge of litigation between the deceased- appellant and the respondents until they received telephone call from learned counsel for the deceased-appellant on record on 21.03.2026. Since proposed appellant Nos.2 to 5 are intimately connected to deceased- appellant, complete lack of knowledge is not sufficient cause within the meaning of Section 5 of the Limitation Act, 1963. The bonafide cause for delay is not put forth by the proposed appellant Nos.2 to 5. The respondents have acquired rights by virtue of abatement of the second appeal and therefore, setting aside the abatement would cause prejudice and irreparable loss to the respondents. It is further pleaded that the Courts have to exercise discretion while condoning delay by taking into account the prejudice that is likely to be caused to the opposite party. It is pleaded that the second appeal is filed nearly seven years ago and the present applications are filed with a delay of nearly four years. According to the respondents, the applications lack bona fide and therefore, are liable to be dismissed.

Contentions of proposed appellant Nos.2 to 5:

6. Learned counsel for proposed appellant Nos.2 to 5 submits that the deceased-appellant was looking after litigation and therefore, none of proposed appellant Nos.2 to 5 have knowledge about the pending litigation and lack of knowledge is sole reason for delay in filing the above applications. It is argued that once the delay is condoned proposed appellant Nos.2 to 5 are ready to proceed with the second appeal.

Contentions of the respondents:

7. Learned counsel for the respondents vehemently opposed the case of proposed appellant Nos.2 to 5 referring to the sole ground of lack of knowledge and its falsity b