Raj Kishan Chabra LR Anil Chabra v. Bharat Kalra

16. Article 121 of the Limitation Act, 1963 further provides that an Application to set aside the abatement has to be made within 60 days of the date of abatement.

17. From these specific provisions, it is evident that the Application for substitution by the legal heirs has to be filed within 90 days which has to be reckoned from the date of demise and not date of knowledge. Further, in case no Application is moved, the Suit automatically abates. No formal order is required for abetment which happens automatically, as has been held in the case of Mithailal Dalsangar Singh and Ors vs. Annabai Devram Kini and Ors., (2003) 10 SCC 691.

18. Further 60 days are provided for moving an Application for setting aside the abatement. However, Section 5 of the Limitation Act, 1963 has been made applicable for an Application for setting aside the abatement whereby indicating that even if the Abatement Application has not been filed within the time, the delay can be condoned under S.[5] Limitation Act.

19. Before considering the principles of condonation of delay, the question which requires deliberation is whether without moving the Application under Order XXII Rule 9 of CPC, 1908, the abatement can be set aside by the Court. A reference be again made to Mithailal Dalsangar Singh and Ors (Supra), wherein the Apex Court had observed that the Courts must adopt a justice-oriented approach dictated by the upper most 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 question of availability of ‗sufficient cause‘ within the meaning of Sub-Rule (l) of Rule (9) of Order XXII and of Section 5 of the Indian Limitation Act, 1963 deserves to be given weight, and once arrived at, would not normally be interfered with by superior jurisdiction.

20. It was further observed in Mithailal Dalsangar Singh and Ors (Supra) that while 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 abatement, may in substance be construed as a prayer for setting aside abatement.

21. Generally, once the Suit is abated, the Application under Order XXII Rule 9 of CPC, 1908 and if delayed and is not supported by Section 5 of the Limitation Act, 1963, must be filed, but even an Application under Order XXII Rule 4 of CPC, 1908 seeking substitution of legal heirs, even in the cases of abatement, would have the effect of setting aside the abatement even though the relief is not claimed in so many words.

22. In the case of Perumon Bhagvathy Devaswom vs. Bhargavi Amma, 2008 (8) SCC 321, the Apex Court observed that 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 and the type of the case. The words ‗sufficient cause‘ must be given 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 party.

23. The factors to be considered for determining sufficient cause was explained by the Apex Court in the case of Ramlal vs. Rewa Coalfields Ltd, AIR 1962 SC 361 has observed that while exercising such discretion there are two considerations which must be kept in mind. The first consideration is that the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The second consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the Appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.

24. In Ramlal (Supra), it has further been observed that even if sufficient cause has been shown, a party is not entitled to condonation of delay as a matter of right. The proof of sufficient cause is condition precedent for exercise of the discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act,

1963. If sufficient cause is not proved, nothing further has to be done. The application for condonation of delay has to be dismissed on this ground alone. If sufficient cause is shown, then the Court has to inquire whether in its discretion, it should condone the delay. This aspect of the matter introduces consideration of all relevant facts at this stage. The diligence of the party or its bona fide may fall for consideration.

25. In the context of Order XXII Rule 9 of CPC, 1908, apex Court in Balwant Singh (dead) vs. Jagdish Singh and Ors, (2010) 8 SCC 685 it was noted that at times, the Courts have taken a liberal attitude, while on other occasions, a stricter view has been preferred whenever the explanation has not been found satisfactory. Therefore, there can be no straight-jacket formula which can be uniformly applied to all cases without a reference to the facts and circumstances of the given case. A word of caution was also given that the well-settled cannons of interpretative jurisprudence provides that the Courts should not give such interpretation to the provisions as would render them ineffective or odious. Once the provision of Order XXII of CPC, 1908 has been enacted with particular reference to Rule 9 and the Rules of Limitation Act, 1963 have been made applicable to entertain such applications, these provisions must be given and true and correct meaning must be applied whenever called for. Liberal construction of the expression ‘sufficient cause’ is intended to advance substantial justice which itself presupposes no negligence or inaction on the party of the applicant to whom want of bona fide is imputable.

26. It is the sufficiency of the satisfactory explanation and not the length of delay which is decisive for condonation of delay, as has been held in the case of Perumon Bhagvathy Devaswom, (Supra).

27. In the light of the aforesaid principles, the facts of the present case may now be considered. The respondents herein failed to file their Application for substitution of legal heirs under Order XXII Rule 4 of CPC, 1908 within a period of 90 days but after a delay of 58 days. The explanation given is that they came to know about the demise of the defendant only on 10.03.2023 when the counsel for the defendant filed a substitution application in the connected litigation between the parties. From the said date, this Application has been filed within 90 days i.e., on 03.06.2023. Here is the case wherein there is inadvertence on the part of the counsel who has miscalculated the period of limitation. The party who is essentially dependent upon the counsel insofar as the legal aspects of the trial are concerned, cannot be said to have been negligent but is a case of inadvertence. No lack of diligence or malafide can be imputed to the party nor was the delay on account of the conduct of the party. Though no separate Application under Order XXII Rule 9 of CPC, 1908 has been filed for setting aside the abatement, but in the case of Mithailal Dalsangar Singh and Ors (Supra), it has been observed that in appropriate cases, the request for setting aside the abatement may be read into the Application under Order XXII Rule 4 of CPC, 1908. In case, there is consideration of condonation of delay, then too, instead of taking a pedantic approach of insisting on an Application under Section 5 of the Limitation Act, 1963 for condonation of delay, the Court is well within its power to exercise the jurisdiction of condoning the delay, in case it is found that the delay has been sufficiently explained in the application.

28. In the present case, on consideration of the Application, it is evident that there is a miscalculation of the period of limitation which has resulted in a delay of 58 days. No doubt, the limitation has to be calculated from the date of demise of the party and the abatement automatically happens after 90 days in case the substitution Application is not filed, but instead of now driving the parties to move a separate Application under Order XXII Rule 4 along with Application under Order XXII Rule 9 read with Section 5 of the Limitation Act, 1963, the prudence requires that the condonation of delay may be read in the impugned Order. The respondent/plaintiff undeniably has filed the Application only for substitution of legal heirs based on the wrong premise that the limitation has to be calculated from the date of death of the party and not from the date of knowledge. The Trial Court has duly considered this Application and permitted the substitution of legal heir. It can only be now concluded that while permitting the substitution, the abatement by implication has been set aside by inferring sufficient justification for condoning the delay in moving the Application while permitting the substitution of the legal heirs.

29. Considering the gamut of facts, it is hereby held that the learned Trial Court was justified in exercising its discretion in allowing the Application and permitting the substitution of the legal heirs. The relief of Order XXII Rule 9 of CPC, 1908 along with the condonation of delay is read into the Application under Order XXII Rule 4 of CPC, 1908 that was filed on behalf of the legal heirs. Thus, it is held that there is no infirmity in the Order of the learned Trial Court.

30. Accordingly, the present Revision Petition is hereby dismissed.

NEENA BANSAL KRISHNA (JUDGE) SEPTEMBER 30, 2024