LexKATARI SURYANARAYANA & ORS. versus KOPPISETTI SUBBA RAO & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2009] 5 S.C.R. 672 ~ A KATARI SURYANARAYANA & ORS. .,, v. KOPPISETTI SUBBA RAO & ORS. (Civil Appeal No. 2240 of 2009) APRIL 8, 2009 " • B [S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] Code of Civil Procedure, 1908 - Order 22 Rule 9 - Abatement of second appeal- Dispute between parties over c their right to use a lane connecting their respective residential houses - Suit filed by respondents for grant of injunction against appellants was dismissed - Order set aside in appeal - Appellants filed second appeal, during pendency of which respondent nos.2 and 3 died - No application for their D substitution within time period prescribed under Order 22, rule 9 of CPC was filed - Appellants filed application for bringing on record the heirs and LRs of respondent nos. 2 and 3 after long delay - High Court declined to condone the delay and held that second appeal filed by appellants must be E dismissed having abated - Justification of - Held: Justified - On facts, no sufficient cause was shown for purpose of condonation of delay in bringing 011 record the names of heirs or LRs of deceased respondent /llos.2 and 3. Dispute arose between the parties over their right to -4, - ' F use a lane which connected their respective residential houses. Respondents filed suit for grant of injunction against the appellants which was dismissed. The order was seuside in appeal. Appellants filed second appeal before High Court, during pendency of which respondent G nos. 2 and 3 died. No application for their substitution within the time period prescribed under Order 22, rule 9 of CPC was filed. Appellants filed application for bringing on record the heirs and legal representatives of the said H 672 KATARI SURYANARAYANA & ORS. v. KOPPISETII 673 -+ SUBBA RAO & ORS. respondent nos. 2 and 3 after a delay of 2381 days and A 2601 days respectively alongwith an application for condonation of delay in filing the said application. The High Court declined to condone the delay in bringing on record the heirs and legal representatives of respondent ... .,., nos. 2 and 3 and consequently held that the second B appeal filed by the appellants must be dismissed having abated. In appeal to this Court, it was contended by the appellants that the High Court erred in failing to consider c the fact that the appellants were not aware of the consequences of death of respondent nos. 2 and 3 and they came to know thereabout only through their counsel at a much later date. It was further contended that in any event, the provision of Order 22, rule 1 OA of CPC D mandating the counsel of the deceased to duly inform the Court in regard to their clients passing away having not been complied, the judgment passed by the High Court cannot be sustained. Dismissing the appeal, the Court E HELD: 1. Different considerations arise in the matter of condoning the delay in filing an application for setting aside an abatement upon condonation of delay in a suit .. } and an appeal. Such applications should be construed F liberally: The Court would take a-more liberal attitude in the matter oT condonation of delay in filing such an application. There are, however, exceptions to the said rule. [Para 10] [679-E, F] 2.1. It may be true that a distinction exists where an G application for setting aside of the abatement is filed in a ¥ suit and the one which is required to be filed in a second appeal before the High Court but the same, by itself may not be sufficient to arrive at a conclusion that the parties were not aware of the consequences thereof. Appellants H 674 SUPREME COURT REPORTS [2009] 5 S.C.R. A themselves rely on the provisionis of Order 22, rule 10A of CPC, which was inserted by reason of Code of Civil Procedure (Amendment) Act, 1976. It does not, however, provide for consequences. It does not take away the duty on the part of the plaintiff or the appellant, as the B case may be, to file an application for condonation of ;I._ .. delay in bringing on record the heirs and legal representatives of a deceased plaintiff/appellant or defendant/respondent within the period prescribed. [Para 11) [680-A-C] c 2.2. In the present case, the parties hereto are neighbours. They are fighting ovEtr the right to use a lane which connects their respective residential houses. It is therefore difficult to appreciate that the appellant was not D aware of the dates of death of re!spondent nos
Excerpt shown. Read the full judgment & AI analysis in Lexace.