LexPERYMON BHAGBATHY versus BHARGAVI AMMA (DEAD) BY LRS. AND ORS.
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' ~ [2008] 11 S.C.R. 1 ).... PERYMON BHAGBATHY A v. BHARGAVI AMMA (DEAD) BY LRS. AND ORS. (Civil Appeal No. 4440 of 2008) JULY 11, 2008 B [R.V. RAVEENDRAN AND LOKESHWAR SINGH PANTA, JJ] Code of Civil Procedure, 1908: Or. 22, rr. 4, 1 OA and 11 - Application for setting aside c abatement of second appeal - Delay in filing - 'Sufficient cause' with respect to delay- Sole plaintiff (respondent no. 2 in second appeal) died on 17. 4. 2002 - Applications for set- ting aside abatement and substitution of legal heirs filed on D 9. 10. 2003 - Rejected by High Court- HELD: Lack of diligence or negligence can be attributed to an appellant only when he is aware of the death and fails to take steps to bring the legal representatives on record - In the instant case, second ap- peal was admitted in 1993 but hearing of dates were not fixed periodically - Neither counsel for deceased respondent in E High Court nor her legal representatives reported her death to the High Court - No notice of death given to appellant - There is no material to contradict claim of appellant that it was unaware of death of the respondent- Delay condoned -Abate- ment set aside - Legal representatives of deceased respon- F ..I dent permitted to be brought on record - Principles applicable in considering applications for setting aside abatement sum- marized a.s follows: (i) The words "sufficient cause for not making the G application within the period of limitation" should be un- derstood and applied in a reasonable, pragmatic, practi- cal and liberal manner, depending upon the facts and cir- cumstances of the case, and the type of case. The words 'sufficient cause' in section 5 of Limitation Act should re- 1 H i.- 2 I SUPREME COURT REPORTS [2008] 11 S.C.R. ,.. -i: A ceive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negli- gence on the part of the appellant. B (ii) In considering the reasons for condonation of delay, the courts. are more liberal.with reference to _appli- ,_ cations for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased c respondent when the appeal abates, it will not punish an appellant with foreclosure of the. appeal, for unintended lapses.· The courts tend to set aside abatement and de- cide the matter on merits,. ·rather than terminate the ap- peal on the ground of abatement. D (iii) The decisive factor in condonation of delay; is not the length of delay, but sufficiency of a satisfactory explanation. . · · (iv) The extent or degree of leniency to be shown by a court. depends on the nature of application and facts E and circumstances of the case. For example, courts view delays in making applications in a pending appeal more .. t leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The F classic example is·the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects. G (v) Want of 'diligence' or ·'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where r- an appeal is admitted by the· High Court and is not ex- pected to be listed for final hearing for a few years, an H appellant is not expected to visit the court or his lawyer • ~ PERYMON BHAGBATHY v. BHARGAVI AMMA (DEAD) 3 BY LRS. & ORS. ).... every few weeks to ascertain the position nor keep check- A ing whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal. [para 8] [12-F,G,H, 13-A,B,C,D,E,F,G,H 14-A] Shakuntala Devi Jain v. Kuntal Kumari AIR 1969 SC 575; B N.Bafakrishnan v. M.Krishnamurthy 1998 (7) SCC 123;Union of India vs. Ram Charan (Deceased) by LRs. AIR 1964 SC 215; Ram Nath Sao vs. Gobardhan Sao 2002 (3) SCC 195; Sita! Prasad Saxena (dead) by LRs. v. Union of India & Ors. c 1985 (1) SCC 163; and State of Madhya Pradesh vs. S. S. Akolkar -1996 (2) SCC 568 - relied on. Krishna vs. Chathappa
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