V K Nayar v. G P Nayar & Anr

8. Placing reliance on the Judgment of the Hon’ble Supreme Court in Mithailal Dalsangar Singh v. Annabai Devram Kini[4], learned Counsel for the Applicants submits that the approach of the Court while considering an application for setting aside abatement ought to be liberal, particularly where sufficient cause is demonstrated and the lis is sought to be decided on merits rather than being non-suited on technical grounds. The relevant paragraph of the said Judgment reads as follows: “8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for.

9. The courts have to adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of “sufficient cause” within the meaning of sub-rule (2) of Rule 9 of Order 22 and of Section 5 of the Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.” (emphasis supplied)

9. It is submitted by the learned Counsel for the Applicants that the Hon’ble Supreme Court in the aforesaid decision has, inter alia, held that the expression “sufficient cause” under Order XXII Rule 9 CPC is to receive a liberal construction so as to advance substantial justice, and that abatement should not ordinarily operate as a penal consequence where the delay is bona fide and satisfactorily explained.

10. In view of the aforesaid, it is urged by the learned Counsel for the Applicants that this Court ought to adopt a liberal and justiceoriented approach while adjudicating the present Application, and accordingly, set aside the abatement, and permit substitution of the LRs of the deceased Respondent No. 1, thereby enabling adjudication of the matter on merits.

11. Per contra, learned Senior Counsel appearing on behalf of the Proposed Respondent No. 1(B) opposes the present Application and submits that the entire foundation of the Applicants’ case, premised upon the alleged medical incapacity of the deceased Petitioner during the relevant period, is wholly misconceived and contrary to the material placed on record.

12. It is further submitted by the learned Senior Counsel that the deceased Petitioner, despite the assertions made in the Application, was at all material times capable of attending to his legal and commercial affairs and cannot be stated to have been incapacitated so as to constitute “sufficient cause” within the meaning of Order XXII Rule 9 CPC read with Section 5 of the Limitation Act.

13. Learned Senior Counsel for the Proposed Respondent No. 1(B) refers to the pleadings and the documents placed on record to demonstrate that the deceased Petitioner was actively engaged in legal proceedings during the very period for which incapacity is alleged. It is pointed out that the deceased Petitioner travelled to Chandigarh and caused a caveat to be filed before the High Court of Punjab and Haryana through the present counsel, which evidences both physical mobility and the requisite mental capacity to take conscious legal steps for the protection of his interests.

14. Learned Senior Counsel for the Proposed Respondent No. 1(B) further relies upon a Resolution dated 31.12.2021 passed by M/s Synthetic Inter Dyechem Pvt. Ltd., whereby the deceased Petitioner was authorised to handle and conduct legal proceedings on behalf of the said company. The said authorisation, reflecting the confidence reposed in the deceased Petitioner to manage legal affairs of the company, is stated to be wholly inconsistent with the plea of incapacity now sought to be advanced.

15. It is submitted that a conjoint reading of the aforesaid facts, when juxtaposed with the medical timeline relied upon in the Application, reveals inherent contradictions. The acts of travelling, filing a caveat, and being entrusted with legal responsibilities on behalf of a corporate entity fall within the very period during which the deceased Petitioner is claimed to have been incapacitated, thereby rendering the said plea by the Applicants untenable.

16. Learned Senior Counsel appearing for the proposed Respondent No. 1(B) has also drawn the attention of this Court to paragraph 5 of the present Application, wherein it is averred that the deceased Petitioner was not in a position to provide instructions to his counsel and that there was hardly any communication between the Petitioner and his counsel. Placing reliance on the said averments, learned Senior Counsel submits that the same are factually incorrect and stand belied by the material available on record.

17. Learned Senior Counsel further submits that the filing of the caveat and the existence of the board resolution pertaining to the relevant period clearly demonstrate that the deceased Petitioner was, in fact, actively instructing counsel and participating in the legal proceedings. These documents, therefore, directly negate the assertion of incapacity and indicate suppression of material facts by the Applicants.

18. In view thereof, it is submitted that no sufficient cause has been made out by the Applicants for setting aside the abatement. The Application, being founded on incorrect and misleading averments, is liable to be dismissed on this ground alone.

ANALYSIS & DECISION:

19. This Court has heard learned counsel appearing on behalf of the parties and, with their assistance, has carefully perused the documents and material available on record.

20. The legal position governing applications under Order XXII Rule 9 of the CPC read with Section 5 of the Limitation Act is well settled and has been consistently elucidated in a catena of judicial pronouncements.

21. It is trite that an application for setting aside abatement is to be considered with a degree of latitude, with the overarching objective of advancing substantial justice. Courts have repeatedly emphasised that procedural rules are handmaids of justice and ought not to be applied in a manner that defeats adjudication on merits. However, this liberal approach is neither unbridled nor unconditional. The discretion vested in the Court is circumscribed by the requirement that the applicant must establish the existence of “sufficient cause” for the delay.

22. Such cause must be bona fide, reasonable, and free from any element of negligence, deliberate inaction, or lack of due diligence. It is equally well settled that the equitable jurisdiction of the Court cannot be invoked by a litigant who has failed to act vigilantly or who has approached the Court with unclean hands, including by suppressing or misrepresenting material facts. The principles applicable in considering applications for setting aside abatement has been succinctly summarized by the Hon’ble Supreme Court in Perumon Bhagvathy Devaswom v. Bhargavi Amma[5], of which the relevant portion reads as under: “13. The principles applicable in considering applications for setting aside abatement may thus be summarised as follows:

(i) The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words “sufficient cause” in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications 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 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 decide the matter on merits, rather than terminate the appeal on the ground of abatement.

(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 and circumstances of the case. For example, courts view delays in making applications in a pending appeal more 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 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.

(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 an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal.” (emphasis supplied)

23. In the present case, the principal ground urged by the Applicants for setting aside the abatement of proceedings qua the deceased Respondent No. 1 is the alleged medical incapacity of the deceased Petitioner during the relevant period. It is contended that owing to a serious ailment, the deceased Petitioner was incapacitated from effectively pursuing the present proceedings or from providing necessary instructions to his counsel. In support of this contention, reliance has been placed upon certain medical records, which have been annexed to the application with a view to demonstrating the severity of the ailment and the resultant inability of the deceased Petitioner to attend and file the necessary application in the present proceedings at that time.

24. However, upon a careful and holistic consideration of the material placed on record, this Court finds that the aforesaid plea does not inspire confidence and falls short of establishing “sufficient cause” within the meaning of the applicable legal framework. The record, in fact, reveals a series of circumstances which are inconsistent with the plea of incapacity sought to be advanced. Notably, it is not in dispute that during the very period for which the deceased Petitioner is alleged to have been incapacitated, he undertook travel to Chandigarh and caused a caveat to be filed before the High Court of Punjab and Haryana. The act of filing a caveat necessarily presupposes a conscious and deliberate decision to safeguard one’s legal interests, which, in turn, requires active engagement with legal counsel and an awareness of ongoing or anticipated proceedings.

25. In addition to the above, material has also been placed on record indicating that the deceased Petitioner was authorised, by way of a corporate resolution dated 31.12.2021, to conduct and manage legal proceedings on behalf of a company, namely, M/s Synthetic Inter Dyechem Pvt. Ltd. The existence of such authorisation during the relevant period further demonstrates that the deceased Petitioner was not only mentally alert but was also entrusted with responsibilities requiring the exercise of judgment and active participation in legal affairs. These circumstances, when read cumulatively, belie the contention that the deceased Petitioner was rendered incapable of attending to his legal obligations in the present proceedings.

26. The inconsistency between the plea of medical incapacity and the demonstrated conduct of the deceased Petitioner assumes greater significance in light of the specific averments made in the application, particularly in paragraph 5 thereof, wherein it is asserted that the Petitioner was not in a position to provide instructions to counsel and that there was hardly any communication between the Petitioner and his counsel concerning the present proceedings. The material on record, however, clearly contradicts this assertion.

27. The filing of proceedings before another High Court and the existence of a board resolution authorising legal action strongly indicate that the deceased Petitioner was, in fact, actively engaging with other legal processes. In the absence of any cogent explanation reconciling these contradictory positions, the explanation offered by the Applicants cannot be accepted as credible or bona fide.

28. It is also pertinent to underscore that abatement of proceedings is not a mere technical consequence but entails serious legal implications, including the accrual of a valuable right in favour of the opposite party. Once such a right has crystallised, it cannot be lightly interfered with, except upon the applicant establishing a sufficient and convincing cause for the delay. The Court must balance the principles of substantial justice with the equally important consideration of finality in litigation. In the present case, the conduct of the deceased Petitioner, as discernible from the record, does not reflect a situation of unavoidable or involuntary inability, but rather indicates a lack of due diligence in prosecuting the present proceedings.

29. In view of the aforesaid analysis, this Court is of the considered opinion that the Applicants have failed to make out a case warranting the exercise of judicial discretion for setting aside the abatement. The explanation furnished is neither satisfactory nor credible and does not meet the threshold of “sufficient cause” as contemplated under Order XXII Rule 9 CPC read with Section 5 of the Limitation Act. The plea of incapacity stands contradicted by the contemporaneous conduct of the deceased Petitioner, and no plausible justification has been offered by the Applicants for the delay in taking necessary steps in the present proceedings.

30. Further, the reliance placed by the learned Counsel for the Applicants on Mithailal Dalsangar Singh (supra) does not advance their case. While the said judgment undoubtedly endorses a liberal and justice-oriented approach in considering applications for setting aside abatement, premised on the principle that a litigant should ordinarily not be denied an opportunity to have a lis adjudicated on merits, it simultaneously carves out a clear exception. The Hon’ble Supreme Court has unequivocally held that such a liberal approach is not warranted in cases where the party seeking relief is guilty of gross negligence, deliberate inaction, or conduct bordering on abuse of process. In such circumstances, the party disentitles itself from invoking the discretionary and equitable jurisdiction of the Court.

31. In the considered view of this Court, the present case squarely falls within the said exception. The material on record demonstrates that the deceased Petitioner was actively engaged in legal affairs during the relevant period, contrary to the assertions made in the present Application. The Applicants have not only failed to establish due diligence but have also sought to rely upon assertions that stand contradicted by the record, thereby giving rise to a reasonable inference of suppression of material facts. In such circumstances, no indulgence can be granted, and the Applicants cannot claim the benefit of a liberal approach.

32. Accordingly, the present Application is dismissed in the aforesaid terms.

33. No Order as to costs. O.M.P. 1413/2014, I.A. 8288/2018 (For modifications of orders 23.02.2015) & I.A. 11517/2018 (For Delay 44 days in filing the Reply by the petitioner to I.A. No. 8288/2018)

34. List for consideration on 11.05.2026.

HARISH VAIDYANATHAN SHANKAR, J. APRIL 10, 2026/tk/kr