SLTAL PRASAD SAXENA (DEAD) BY LRS. versus UNION OF INDIA AND ORS.

Citation: [1985] 1 S.C.R. 659 · Decided: 28-08-1984 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SlTAL PRASAD SAXENA (DEAD) BY LRS. 
v. 
UNION OF INDIA AND ORS. 
August 28, 1984 
(D.A. DESAI, V. BALAKRISIINA ERADI AND V. KHALID, JJ.J 
Condonation of Delay-High Court calling for a report fro1n trial court on 
application for co11donation of de lay and accepting tile sonic as if it is exercising 
revisional jurisdiction-Whether Justified-Whether High Court should satisfy itself 
that sufficient cause has been 111ade out for condonation of delay-Section 5 . 
Limitation ,4ct 196.:1. 
One Mahendra Kumar Saxena moved three applications in the High Court· 
one under O.XXII Rule 3, C.P.C. for substitution of heirs and legal representa~ 
tives of the deceased appellant, the other under O.XXll rule 9, C.P.C. for setting 
aside abaten1ent of the appeal if it has abated for failure to seek substitution 
within the prescribed period of limitation and the third one for condonation of 
delay u/s. 5 of the Limitation Act. The High Court transmitted these applica· 
tions to the trial court for enquiry and report regarding the date of death of the 
deceased appellant and knowledge about the pendency of the appeal of the.heirs 
and legal representatives in order to ascertain whether the applicant had made 
out sufficient cause for condoning the delay 
The trial court submitted its 
report which in terms included a finding that Mahendra Kumar Saxena had 
knowledge about the pendency of the second appeal before moving the afore· 
mentioned applications. The High Court held that the conclusion reached by 
the trial court is such that it would not like to take a different view of the matter 
and therefore rejected the various applications and disposed of the appeal as 
having abated. Hence this appeal by special leave. 
Ailowing the apperil and remitting the matter to the High Court for early 
disposal. 
HELD : (I) The approach of the High Court that it was not pursuaded 
to take a view different from the one taken by the trial court is not permissible. 
It is the High Court which had to satisfy itself that the petitioner made out 
sufficient cause which preyented hin1 from moving the application for sub~ 
stitution in time and not the trial court. The High Court may call for a report 
of the trial court but then cannot adopt the approach of a court exercising 
revisional jurisdiction. It must examine the material Collected by the trial court 
and come to its own conclusion. [662 C-D,] 
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SUPREME COURt REPORTS 
[198511 s.c.R.. 
Bhagwan Swaroop v. Moo/ Chand [1983] 2 SC.C. 132 and Hans Raj v. Sunder 
Lal Aggarwal (1982) l sec. 4'16 followed. 
(2) Once an appeaJ is pending in the High Court, the heirs are not expected 
to keep a constant watch on the continued existence of parties to the appeal 
before the High Court which has a seat far away from "'here parties in rural 
areas may be residing. 
In the instant case, it is a moot point whether the father 
acquainted his son/sons about his litigation for seeking relief in respect of his 
service. If this is the nature of litigation, this Court is not inclined to draw the 
inference drawn by the trial court that son}sons knew about the pendency of 
second appeal. Therefore, sufficient cause was made for condoning the delay. 
[622 D-E, 622 FJ 
CIVIL APPELB~]l JVRISDICTION : Civil Appeal No. 843 of 1984 
Appeal by Speciai leave from the Judgment and Order dated the 
23rd September, 1981 of the Madhya Pradesh High Court in Civil 
Second Appeal No. 10 of 1971. 
S.S. Khanduja for the Appellant. 
G.D. Gupta and R.N. Poddar for Respondents. 
The Order of the Court was delivered by 
DESAI, J. One Shri Sita! Prasad Saxena filed Civil No. 46A of 
1969 against (I) Union of India (2) Comptroller and Auditor General 
of India and (3) Accountant General Madhya Pradesh for a declara-
tion about the status of his post and arrears of salary in respect of the 
post in which he was entitled to continue. The suit came up for 
hearing before the 5th Civil Judge Class II, Gwalior who by his judg-
ment and decree dated July 7, 1969 dismissed the suit. 
Plaintiff Sita! 
Prasad Saxena preferred civil appeal No. 36A of 1970 against that 
judgment and decree of the trial court in the District Court at 
Gwalior. 
The appeal came up for bearing before the learned First 
Additional District Judge who agreed with the findings recorded by 
the trial court and accordingly by his judgment and order date:! 
August 4, 1970 dismissed the appeal. Plain
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