SHANTI DEVI & OTHERS versus KAUSHALIYA DEVI

Citation: [2015] 9 S.C.R. 477 · Decided: 18-09-2015 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Disposed off
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

(2015] 9 S.C.R. 477 
SHANTI DEVI & OTHERS 
v. 
KAUSHALIYA DEVI 
(Civil Appeal No. 7011 of 2015) 
SEPTEMBER 18, 2015 
[DIPAK l\iilSRAAND PRAFULLA C. PANT, JJ.) 
A 
8 
Code of Civil Procedure, 1908 - Or. XX/Ir 3 - Limitation 
Act, 1963 - Article 120 of Schedule - Application for 
substitution by respondent alongwit/1 application uls. 5 of the C 
1963 Act for condonation of delay - First appellate court 
condoned the delay of more than eleven years setting aside 
abatement and allowed the substitution in place of plaintiff/ 
appellant, in appeal pending before first appellate court -
D 
High Court upheld the same - Propriety of- Held: In view of 
the spirit of the provision contained in r 3 of Or XX/I read 
with Article 120 of Schedule, the first appellate court and the 
High Court erred in law in condoning the delay of more than 
eleven years in moving substitution application, and setting E 
aside the abatement - Respondent/daughter of the deceased 
had full knowledge of death of her father and also of the 
litigation pending before the first appellate court- Delay could 
not be condoned on insufficient grounds and by abusing the 
process of law -Thus, the order passed by the High Court F 
·" 
and by the first appellate court set aside .. 
I 
Karam Kaur v. Jalandhar Improvement Trust and thers 
(2014) 6 sec 40~ - referred to. 
I 
Case Law Reference 
G 
(2014) s sec 409 
referred to. 
.Para 5. 
' 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 
7011of2015. 
H 
477 
478 
SUPREME COURT REPORTS 
[2015] 9 S.C.R. 
A 
From the Judgment and Order dated 02.01.2014 of the 
High Court of Judicature at Allahabad, Lucknow Bench at 
Lucknow in Writ Petition No. 58 of 2008. 
WITH 
B 
C.A. No. 7008 of 2015. 
Pradeep Kant, Divyanshu Sahay, Rakesh K. Sharma for 
the Appellants. 
c 
Sanjay Agarwal, Deepak Kumar Singh, Parmod Kumar, 
D 
Nitin Kumar Thakur for the Respondent. 
The Judgment of the Court was delivered by 
PRAFULLA C. PANT.J. 
Civil Appeal No. 7011 of 2015 
1. This appeal is directed against order dated 
02.01.2014, passed by High Court of Judicature atAllahabad, 
E Lucknow Bench, whereby said court has dismissed the Writ 
Petition No. 58 of 2008 (MIS), affirming the order dated 
10.10.2007, passed by the Additional District Judge/Special 
Judge (E.C.Act), Gonda, in Miscellaneous Case No. 08 of 
2006. By said order, the first appellate court condoned the · 
F delay of more than eleven years, and allowed the substitution 
application moved by the respondent, in Civil Appeal No. 124 
of 1987 which stood abated on 14.03.1995, and thereafter 
dismissed in default on 21.03.1997. 
G 
2. We have heard the learned counsel for the parties and 
perused the papers on record. 
3. This is the second round of litigation between the 
parties. In the first round, Ram Narayan, father of respondent 
H Kaushaliya Devi, instituted Originc:i! Suit No. 277/66 on 
SHANTI DEVI & OTHERS v. KAUSHALIYA DEVI 
479 
[PRAFULLAC. PANT.J.] 
16.12.1966 before Munsif, Gonda. In said suit, Ram Narayan A 
pleaded that the defendant (predecessor in title of the present 
appellants) was his tenant, and the tenancy was terminated 
vide notice dated on 02 .11.1966. The defendant disputed title 
of the plaintiff. And after full trial, the suit was dismissed on 
which, Ram Narayan preferred Civil Appeal No. 107 of 1973. 
B 
The same was also dismissed on 20.04.1977 with the 
observation that since issue of ownership of the plaintiff is 
disputed, and relationship of landlord and tenant between 
parties not proved, as such, the_ plaintiff was at liberty to file 
fresh suit on the basis of ownership. Thereafter, unsuccessful C 
plaintiff (Ram Narayan) started fresh litigation by filing Original 
Suit No. 45 of 1980 against Ram kali (predecessor in title of 
appellants) and Gauri Shanker seeking declaration of title and 
damages. This suit was also contested, and after recording D 
the evidence and hearing the parties, the same was dismissed 
vide judgment and decree dated 21.07.1987 (Annexure P-1). 
On which the plaintiff filed Civil Appeal No. 124of1987. During 
the pendency of the appeal, defendant Ram Kali died, and 
her legal representatives were substituted. Thereafter appellant E 
Ram Narayan (original plaintiff) died on 14.12.1994. Since 
no substitution by his heirs was sought in the appeal filed before 
first appellate court, as such, the appeal stood abated on expiry 
of ninety days of death of plaintiff-appellant, and ultimately the 
appeal was dismissed in
Excerpt shown. Read the full judgment & AI analysis in Lexace.