GANESHPRASAD BADRINARAYAN LAHOTI (D) BY LRS. versus SANJEEVPRASAD JAMNAPRASAD CHOURASIYA AND ANR.

Citation: [2004] SUPP. 3 S.C.R. 590 · Decided: 16-08-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Leave Granted & Allowed

Judgment (excerpt)

A 
GANESHPRASAD BADRINARA YAN LAHOTI (D) BY LR~ 
v. 
SANJEEVPRASAD JAMNAPRASAD CHOURASIYA AND ANR. 
AUGUST 16, 2004 
B 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
Code of Civil Procedure, 1908: 
Section 11 and Order 22 Rules 3, 4 and I I-Abatement of appeal-
C Res judicata-App/icability of-Plaintiff died during pendency of appeal 
Legal heirs of plaintiff filed an application for substitution of their names 
long after his death-Appellate court rejected . the application on the 
ground that the legal heirs ought to have filed three applications i.e. (i) 
for substitution, (ii) for setting aside abatement of appeal and (iii) for 
D condonation of delay-Accordingly, three separate applications filed-
Appellate court rejected those applications also on the ground of res 
judicata-Correctness of-Held: Doctrine of res judicata not applicable 
to subsequent applications-Hence, applications allowed and appellate 
court directed to hear the appeal on merits. 
E 
Limitation Act, 1963: 
Section 5-Condonation of delay-Sufficient cause for-Death of 
appellant-During pendency of appeal-Counsel for the deceased wrote 
F a letter to him that the appeal was placed for hearing-Legal heirs of the 
deceased came to know from this letter for the first time that an appeal 
had been filed by the deceased-Immediately, they filed an application for 
substitution of their names-Held: Under these circumstances there was 
no inaction or negligence on the part of the heirs-Hence, the application 
for substitution allowed. 
G 
The plaintiff respondent No. 1 (landlord) filed a suit against 
defendant No. 1 for recovery of possession of suit property on the 
ground of subletting without his permission. The trial court decreed 
the suit. The District Court admitted the appeal and granted interim 
H stay. During pendency of the appeal defendant No. 1 died. 
590 
G. B. LAHOTI v. S. J. CHOURASIY A 
591 
When the counsel of defendant No. 1 addressed a letter to him A 
stating that the appeal had been placed for hearing, the heirs and legal 
representatives of the deceased defendant No. 1 came to know for the 
first time of the pending appeal. They immediately filed an application 
under Order 22 Rule 11 of the Code of Civil Procedure, 1908 praying 
for substitution of their names. The respondent opposed the application B 
on the ground that the appeal stood abated in view of the death of the 
orig.inal defendant No. 1 and failure to bring legal heirs on record 
within ninety days. 
The District Court rejected the application for substitution of C 
heirs on the ground that no separate applications were filed for 
substitution, setting aside abatement of appeal and condonation of 
delay. Subsequently the appellants filed three applications for (i) 
setting aside abatement and for substituting them as parties; (ii) for 
condonation of delay; and (iii) for interim relief. The appellate court 
rejected those applications on the ground that no sufficient cause had D 
been made out for condonation of delay. The appellate court further 
held that the earlier application having been dismissed the subsequent 
applications filed by the appellants were barred by res judicata. 
The High Court dismissed the revision petition filed by the E 
appellants on the grounds that there was no reasonable explanation for 
condonation of delay and also that the applications were not 
maintainable. Hence the appeal. 
On behalf of the appellants, it was contended that the District F 
Court had adopted a technical approach and dismissed the earlier 
application on the ground that only one application was made; and that 
the doctrine of res judicata was not applicable. 
Allowing the appeal, the Court 
G 
HELD: 1. In the facts and circumstances of the case, when the 
original defendant had not accepted the decree passed by the trial court 
and had preferred an appeal before the District Court which was 
pending and as soon as the appeal was placed for hearing and the 
advocate had addressed a letter to the appellants, prompt actions were H 
592 
SUPREME COURT REPOR'fS [2004] SUPP. 3 S.C.R. 
A taken by them, the lower appellate court ought to have granted the 
prayer for substitution. After dismissal of the earlier application the 
appellants had filed three applications which ought to have been allowed 
considering overall and attenuating circumstances of the case. The 
doctrine of res judicata could not be applied when the Court felt that the 
B applications were not maintainable. Thi

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