Atlanta Limited v. Anil R. Agarwal & Ors.

10. Next he would submit that the present Interim Application No. 589 of 2019 was then filed by the Applicant Petitioner 5 of 33 on 18.10.2019. He has fairly informed the Court that on perusal of the Interim Application, it will be seen that when this Application was filed, the reference in the Application was only to the previous Chamber Summons No. 213 of 2019 and nothing more. He would submit that the Court that even at this stage in October 2019, the Applicant / Plaintiff or his Advocate were not aware about the conditional order dated 31.03.2015 passed by which the first Chamber Summons (L) No. 1987 of 2014 was dismissed for non removal of office objections. He would submit that it is only after a period of three years i.e. in November 2022, the Plaintiff and the Advocate for the Plaintiff came to know about the conditional order passed by the learned Prothonotary in Chamber Summons (L) No. 1987 of 2014 which was taken out by the Plaintiff earlier. He would submit that original Defendant No. 1 is survived by three legal heirs and in the first Chamber Summons No. 1987 of 2014, impleadment was sought of only two legal heirs as Plaintiff was not aware about the details of all legal heirs. He would submit that despite Interim Application NO. 589 of 2019 being filed, the necessity to file Interim Application No. (L) 36100 of 2022 arose because the order dated 31.03.2015 was required to be set aside as the Suit stood dismissed, consequently it stood abated and considering the delay the abatement of the Suit was also therefore required to be set aside. On the issue of knowledge, he 6 of 33 would submit that when the earlier Chamber Summons was filed in 2014, it was handled by the in-house lawyer of the Applicant Plaintiff one Ms. Shraddha Khanvilkar (nee Mrs. Shraddha Mohite) who was looking after the matter. He would submit that she had resigned form the services of the Plaintiff on 05.02.2015. At Exhibit “C” to Interim Application (L) No. 36100 of 2022 her resignation letter is appended which is addressed to the Plaintiff. He would once again fairly submit to the Court that during the said period a number of Advocates were working in the office of the Advocate for the Plaintiff who had left the chamber with the reason that no one was aware about the earlier Chamber Summons No. 1987 of 2014 having been dismissed by the conditional order dated 31.03.2015. He would submit that had the Advocate of the Plaintiff had knowledge about the earlier Chamber Summons, he would have referred to the same when Chamber Summons (L) No. 1661 of 2018 was filed for bringing the names of legal heirs of deceased Defendant No.1 on record. He would submit that when that Chamber Summons was filed the Advocate for the Plaintiff was unaware about the dismissal of the earlier Chamber Summons and also abatement of the Suit thereafter qua the deceased Defendants. He would submit that it was only in the year 2022 that the Plaintiff realized about fling of the earlier Chamber Summons number through his in-house Advocate Ms. Shraddha Mohite who had 7 of 33 rejoined the office of the Plaintiff’s Advocate and recalled about the earlier Chamber Summons and informed the Advocate for Plaintiff. He would submit that in Interim Application No. 589 of 2019 an interlocutory order was passed against which the Plaintiff filed an Appeal in the Appeal Court which was admitted. In that pending Appeal the Plaintiff filed a fresh Interim Application (L) No. 23887 of 2022 for impleading the names of legal heirs of deceased Defendant No. 1 and in the course of preparing the pleadings in that Interim Application the in-house Advocate who had resigned on 05.02.2015 but had rejoined the Plaintiff’s services in the middle of 2016 was called to give instructions and while giving those instructions the inhouse Advocate recalled about filing of the earlier Chamber Summons. He would submit that it is only thereafter and after taking a thorough search of the papers lying in the office of the Advocate of the Plaintiff and the office of the Plaintiff, the fact of the earlier Chamber Summons (L) No. 1987 of 2014 having been filed came to light.

11. In paragraph No. 8 of the Interim Application (L) NO. 36100 of 2022, it is averred that the original defendant expired on 01.05.2014 and the first Chamber Summons (L) No. 1897 of 2014 was filed within 90 days for the date of death. It is further averred that copy of the original Chamber Summons is not traceable even in the proceedings of this Hon’ble Court so as to enable the Plaintiff to 8 of 33 remove the office objections even if so allowed. In that view of the matter, due to the above deficiency not being noticed while filing Interim Application No. 589 of 2019, in order to cure the sasid defect, Interim Application (L) No. 36100 of 2022 is filed. One final argument advanced by Mr. Vashi is that when Interim Application NO. 589 of 2019 was filed, most of the aforesaid facts were not to the knowledge of the Plaintiff or to his Advocate and hence qua Defendant No. 1 there was no relief prayed for setting aside the abatement of the Suit qua deceased Defendant No. 1. He has drawn my attention to the averment in paragraph No. 11 of Interim Application (L) No. 36100 of 2022 and prayer clause (c) therein whereby the Applicant Plaintiff has prayed for setting aside of the abatement of the Suit qua the deceased Defendant No. 1. He would fairly submit and inform that due to the aforementioned facts and delay, the Plaintiff should not be made to suffer and seeks leniency from the Court failing which in view of the strong opposition by the proposed Defendant Nos. 1(a), 1(b) and 1(c), the claim of the Plaintiff will be completely ousted qua the original Defendant No. 1. He would submit that Defendant No. 1(a) has created third party rights in the suit property in favour of proposed Defendant No. 29 after the demise of original Defendant No. 1. Hence the opposition. He has urged the Court to pass appropriate orders in the interest of justice despite the 9 of 33 issue of delay which can be seen writ large on the face of record. In support of his submissions he has referred to and relied upon the decision of the Supreme Court in the case of Ram Nath Sao alias Ram Nath Sahu & Ors. Vs. Gobardhan Sao & Ors.[1] and would contend that the averments made by the Plaintiff in the aforementioned two Applications are genuine to explain the reasons for the delay so as to explain the sufficient cause. He would submit that undoubtedly there is some length of delay but acceptability of the explanation offered should be the only criterion for accepting the explanation as sufficient. He would submit that rules of limitation are not meant to destroy the rights of the parties but they are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. He would submit that there cannot be a straitjacket formula for accepting or rejecting the explanation furnished for the delay caused in taking steps and the Court should proceed in such a manner that acceptance of the explanation for delay should be the rule and refusal an exception. He has therefore urged the Court to decide the interim Applications judiciously.

12.

PER CONTRA Mr. Madon, learned Advocate for the contesting proposed Defendant Nos. 1(a), 1(b) & 1(c) i.e. legal heirs of the original Defendant No. 1 would submit that both Applications

10 of 33 filed by the Plaintiff lack bonafides and are inconsistent with the record of the case. At the outset he would submit that since 2014 Revenue proceedings were going on between the Plaintiff and Defendant No. 1 in the Revenue Court and the said proceedings went right upto the State by 2018. He would submit that in those proceedings the Plaintiff had knowledge about the demise of the original Defendant No. 1 in 2014-15 itself. He would submit that in that view of the matter, if the two applications are considered, it is clearly seen that the reasons given in Interim Application No. 589 of 2019 are completely de hors of the reasons given in Interim Application (L) No. 36100 of 2022. He has drawn my attention to paragraph Nos. 2, 3 and 4 of the Interim Application No. 589 of 2019 wherein there is a specific mention of Chamber Summons No. 213 of 2019 seeking identical relief. He would submit that on reading the bare averments the Applicant is refraining from informing the Court the date on which it came to know about the demise of original Defendant No. 1. He would submit that in view of the pending Revenue proceedings between the Plaintiff and original Defendant NO. 1, the Plaintiff knew about the demise of the Defendant No. 1 in 2014 itself and therefore the Plaintiff has purposely refrained from disclosing the date of knowledge. He would categorically assert that the Plaintiff knew about the date of demise in the year 2014 itself and 11 of 33 hence the first Chamber Summons (L) No. 1987 of 2014 to implead his legal heirs was filed in December 2014. He would submit that in the two Applications filed by the Plaintiff there is gross suppression of material facts and false statement averred.

13. On the basis of the aforesaid opening submissions, he would submit that both the Applications are completely misconceived, both in law and facts since contrary stands are taken in the pleadings filed in this Court. He would submit that the suit stands abated against the proposed Defendant Nos. 1(a), 1(b) & 1(c) for failure on the part of the Plaintiff to file the Chamber Summons within the prescribed period of 90 days as required by law. Next he would submit that from the dates and events which have been considered by the Court it is clearly evident that Plaintiff was aware about the demise of the original Defendant No. 1 in 2014 but did not take any steps to bring his legal heirs on record. He would submit that this fact is apparent from the record and proceedings filed in connection with the mutation entries of the subject properties. He would submit that in any event the suit stands abated qua the original Defendant No. 1. He would submit that the date of demise of the original Defendant NO. 1 was 01.05.2014 and the Plaintiff was required to file the Interim Application for bringing his legal heirs on record within a period of 90 days which expired on 28.08.2014 whereas the first Chamber 12 of 33 Summons (L) No. 1987 of 2014 was filed in December 2014. Hence, the Suit stood abated. Next he would submit that no Application has been filed for setting aside the abatement and an innocuous statement is made in paragraph No. 11 and relief prayed for in prayer clause (c) of Interim Application (L) No. 36100 of 2022, only when the Plaintiff realized that without setting aside the abatement of the Suit qua the original Defendant No. 1 the other reliefs can never be granted to the Plaintiff. He would further submit that by registered deed of conveyance dated 03.03.2021 the proposed defendant No. 1(a) has already transferred and conveyed the subject suit properties to one Munoth Housing Pvt Ltd. (proposed Defendant No. 29). He would submit that a second false statement has been made by the Plaintiff that they came to know for the first time about the details of the legal heirs of deceased Defendant No. 1 in March 2022 when in the first Chamber Summons No. 1987 of 2014, the names of the legal heirs were stated on page 20 thereof. This clearly shows that Plaintiff was aware about the names of the legal heirs but a blatantly false statement has been made in the Interim Application that Plaintiff came to know about the details of the legal heirs only in March 2022. He would submit that the delay in the present case is of almost 8 years if construed correctly and not of 104 days as claimed by the Plaintiff. He has drawn my attention to paragraph Nos. 7 8 and 9 of Interim 13 of 33 Application No. 589 of 2019 and after going through the same would contend that there is no explanation offered by the Plaintiff therein for the delay nor as to how the Plaintiff came to know about the details of the legal heirs. He would submit that the Plaintiff in the present case has never been vigilant and the explanation offered about the in-house Advocate having resigned and then rejoined is not palatable at all. He would submit that in Interim Application No. 589 of 2019 there is no mention of Shraddha Mohite, the in-house Advocate who had by that time already rejoined the services. He would submit that the only explanation offered is a one line explanation at the end of paragraph No. 7 of the fresh Interim Application No. 36100 of 2022 that it is only on taking search of various papers, the aforesaid facts came to light.

14. In support of his submissions Mr. Madon has referred to and relied upon a compilation of seven documents which pertain to a dispute between the Plaintiff and original Defendant No. 1 pending since the year 2012-2015. Reference is made to Appeal No. DLN/RTS/A-18/2012 between the parties in which the original Defendant No. 1 was already substituted by his legal heir i.e. his wife appearing through her power of attorney Mr. Anubhav Anilkumar Agarwal therein. He would submit that perusal of these proceedings clearly show that Plaintiff was always aware about the legal heirs of 14 of 33 the deceased Defendant No. 1 right since inception as is evident from the Revenue proceedings.

15. In further support of his submissions Mr. Madon has referred to and relied upon the decisions of the supreme Court in the case of S.P. Chengalvaraya Naidu Vs. Jagannath[2] and Balwant Singh Vs. Jagdish Singh[3]. In the case of S.P. Chengalvaraya Naidu (supra), my attention is drawn to paragraph No. 5 which is quoted herein under:-

15.1. On the basis of the above it is argued that this court should take into cognizance the fact that the litigant i.e. Plaintiff has not come to the Court with clean hands and the process of the court is being abused. He would submit that considering that false statements

15 of 33 are made by the Plaintiff about having knowledge of the demise of the original Defendant No. 1, he has to be summarily thrown out by the Court.

16. Next in the case of Balwant Singh (supra) he has drawn my attention to paragraph No. 9, 16, 24, 25, 26, 27, 33, 36 and 37 and

38. For reference and convenience, the said paragraphs are reproduced herein under:-

26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.

27. The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party.........

33. Furthermore, it is also a well-settled canon of interpretative jurisprudence that the Court should not give such an interpretation to the provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the learned counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.........

36. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show 17 of 33 that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005)

37. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom [(2008) 8 SCC 321]. In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22 CPC along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In SCC para 13 of the judgment, the Court held as under: (SCC pp. 329-30) “(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. 18 of 33

(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 in original) W may also notice here that this judgment had been followed with approval by an equi-Bench of this Court in Katari Suryanarayana [(2009) 11 SCC 183: AIR 2009 SC 2907]

17. Mr. Madon has taken me through the aforementioned paragraphs and would contend that delay may be just one of the ingredient which has to be considered by the Court in such a case, but in addition thereto, this Court should and must take into account the conduct of the party namely the Plaintiff, the bonafide reasons for seeking condonation of delay and whether the delay could have easily been avoided by the Plaintiff had it acted with normal care and caution. He would submit that in the present case, the Applicant Plaintiff has come to the Court with a false case and false statement. He would submit that the Applicant has tried to camouflage the filing of the earlier Chamber Summons (L) No. 1987 of 2014 by repeatedly making mistakes. He would submit that no plausible explanation has been offered for the delay and causal statements are made in the Interim Applications, rather false explanation is given. Therefore he would urge the Court that both the Interim Applications deserve to be dismissed. 19 of 33

18. Both the learned Advocates have taken me though the decision in the case of Ram Nath Sao (supra) and referreed to and relied upon the contents of paragraph No. 7, 8, 9, 10, 11, 12 and 13. Mr. Vashi in addition thereto in his rejoinder has drawn my attention to the provisions of Order 22 Rule 10A of the CPC and the duty cast on the party / pleader to communicate the details of the legal heirs of the demised party. He would submit that the Plaintiff has prayed for setting aside the order dated 31.03.2015 passed by the Prothonotary & Senior Master and if the same is allowed, the issue of abatement as also delay would be rendered academic. He has also informed the Court that in 1987 when the first Chamber Summons was filed at that time, details of only two legal heirs was known to the Plaintiff and therefore the bonafides of the Plaintiff were clear and transparent as the Plaintiff did not have information of all three legal heirs. In passing he would submit that the contesting proposed Defendants have not filed any affidavit in reply to Interim Application (L) NO. 36100 of 2022 wherein the relief for setting aside the abatement is sought. He would rather fairly submit that the ratio of the decision in the case of Ram Nath Sao (supra) needs to be considered in its entirety to allow the present Applications and if so required, costs can be awarded rather than taking a pedantic and hyper technical view. 20 of 33

19. In the present case it is seen that the Applicant / Plaintiff had filed Chamber Summons (L) No. 1987 of 2014 for bringing the legal heirs of deceased Defendant No. 1 on record. At that time the Plaintiff had knowledge of only two legal heirs of the deceased Defendant No. 1. This knowledge was apparently gathered from the Revenue proceedings which was pointed out by the contesting proposed Defendants as perusal of the cause title of the mutation proceedings between the parties clearly show the names of two out of the three legal heirs of the original Defendant No. 1. The Applicant has relied upon the provisions of Order 22, Rule 10A of the CPC which clearly state that whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party. This rule clearly imposes an obligation on the pleaders of the parties to communicate to the Court the death of the party represented by him. In effect, under this rule, what is contemplated and submitted is that the Advocate representing the original Defendant No. 1 ought to have informed the Court about the demise of the original Defendant No. 1 on 01.05.2014. This having not been done, considering the time period available to the Applicant for bringing the legal heirs of the deceased Defendant on record and even that not having been done in the present case, it is seen that after the 21 of 33 lapse of 90 days thereafter the Suit stood abated. Hence technically as on date Suit No. 175 of 2013 stands abated qua the legal heirs of original Defendant No. 1 as against them.

20. On perusal of the pleadings between the parties, one thing is certain and that is the delay caused in approaching the Court subsequently. The delay is undoubtedly enormous. Applicant / Plaintiff has also sought to explain the delay. One of the grievance pleaded by the Applicant is that though in 2014, Chamber Summons (L) 1987 of 2014 was filed and it was dismissed by the conditional order dated 31.03.2015, thereafter only in the year 2022 it came to the knowledge of the Plaintiff that the earlier Chamber Summons was filed and the conditional order had been passed therein. One thing is clear and that is, if the Plaintiff had knowledge about the earlier Chamber Summons having been dismissed, then in the year 2019 when the Plaintiff approached this Court by a fresh Chamber Summons, the Plaintiff would have pleaded the same. But in 2019 the Plaintiff did not have knowledge about the earlier Chamber Summons.

21. Next the Plaintiff has sought to explain the sufficient cause for the delay. In plain words, Plaintiff has submitted that it had completely forgotten rather it is the submission of the Advocate that after the first Chamber Summons was filed in 2014, it was the Advocate’s mistake of having forgotten the said proceeding completely. 22 of 33 The reason advanced is that the junior Advocate handling the said proceeding had resigned and had later on rejoined after more than one year thereafter. Still the delay has occurred and the same is not denied by the Applicant / Plaintiff. Mr. Vashi has been fair in admitting to the delay. The question before the Court is whether the conduct of the Applicant / Plaintiff in the present case is such that whether the Plaintiff deserves condonation of delay and acceptance of the sufficient cause pleaded for setting aside of the abatement of the suit qua Defendant No. 1 and implead his legal heirs in his place.

22. It is an admitted position that pursuant to the demise of Defendant No. 1, his legal heirs namely Defendant No. 1(a) has admitted on pleadings that substantive third party rights have been created by sale of the suit properties to the proposed Defendant NO. 29. This admittedly has been done pursuant to the demise of Defendant No. 1. Hence it is seen that if the contesting proposed Defendant Nos. 1(a) to 1(c) succeed in their arguments and case to preclude and prohibit the Plaintiff from impleading them, they shall undoubtedly be substantially benefited. This is one of the reasons which is also considered by me in the present case to balance the convenience of both parties and not to cause an irreparable harm to the Plaintiff. 23 of 33

23. In the above background the question before me is to whether oust the substantive legal right of the Applicant / Plaintiff to proceed against the legal heirs of original Defendant No. 1 who have in fact further dealt with the suit property.

24. In this regard, I am guided by the decision of the Supreme Court cited by the Applicant / Plaintiff in the case of Ram Nath Sao (supra). In that case there was a delay in relation to one of the Appellant of about five years and in relation to another Appellant delay was of about three years, both of whom were transferees and belonged to villages different than the village of the Plaintiffs and the contesting Defendants. In that case, it was pleaded that in the absence of anything to show that the delay was malafide, intentional or any dilatory tactics were adopted, the same should have been condoned and abatement should have been set aside as the expression ‘sufficient cause’ should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafides is imputable to a party. In that case also, just as in the present case before me, the Respondents pleaded with vehemence that the High Court was quite justified in holding that no sufficient cause was made out for condonation of delay and setting aside abatement in that case. While considering the above propositions advanced by the parties, the Supreme Court considered the expression ‘sufficient cause’ 24 of 33 within the meaning of Section 5 of the Limitation Act 1963, Order 22 Rule 9 of the CPC as well as similar other provisions and the ambit of exercise of powers thereunder as decided by the Supreme Court in various cases and ultimately concluded that it should receive a liberal construction. While arriving at that conclusion the Supreme Court considered the following cases:- (1) N. Balakrishnan v. M. Krishnamurthy[4]; (2) Rama Ravalu Gavade v. Sataba Gavadu[5]; (3) Sital Prasad Saxena v. Union of India[6]; (4) State of W.B. v. Administrator, Howrah Municipality[7]; (5) Shakuntala Devi Jain v. Kuntal Kumari[8].

25. I find it necessary to reproduce paragraph Nos. 7 to 12 of the aforesaid decision herein for immediate reference. They read thus:-

9. In the case of Rama Ravalu Gavade v. Sataba Gavadu Gavade [(1997) 1 SCC 261] during the pendency of the appeal, one of the parties died. In that case, the High Court had refused to condone the delay in making an application for setting aside abatement and set aside abatement, but this Court condoned the delay, set aside abatement and directed the appellate court to dispose of appeal on merit observing that the High Court was not right in refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer.

10. In the case of N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123] there was a delay of 883 days in filing application for setting aside ex parte decree for which application for condonation of delay was filed. The trial court having found that sufficient cause was made out for condonation of delay, condoned the delay but when the matter was taken to the High Court of Judicature at Madras in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial court was not justified in condoning the delay resulting in reversal of its order whereupon this Court was successfully moved which was of the view that the High Court was not justified in interfering with the order passed by the trial court whereby delay in filing the application for setting aside ex parte decree was condoned and accordingly order of the High Court was set aside. K.T. Thomas, J., speaking for the Court succinctly laid down the law observing thus in paras 8, 9 and 10: (SCC p. 127) 26 of 33 “8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.

10. **** The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.”

11. The Court further observed in paragraphs 11, 12 and 13 which run thus: (SCC pp. 127-28) “11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead 27 of 33 to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words ‘sufficient cause’ under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575: (1969) 1 SCR 1006] and State of W.B. v. Administrator, Howrah Municipality [(1972) 1 SCC 366].

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses.” (emphasis added)

12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right 28 of 33 has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”

25.1. From the above it is clear that the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The Supreme Court has held that the time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. It is seen that length of delay is no matter but acceptability of the explanation is the only criterion. In the present case it is fairly admitted by the Applicant / Plaintiff about the issue of delay and the various proceedings have been referred to herein above while recording the submissions of the learned Advocates. Equally this Court also needs to balance the convenience of both parties. On the one hand it is the Applicant / Plaintiff before me who through his Advocate has admittedly caused the delay in approaching this Court for setting aside of the abatement. The reasons are what are narrated by me herein above and no other reasons. On the other hand the proposed Defendants are vehemently objecting to their impleadment 29 of 33 on the ground of abatement as also delay and sufficient cause shown by the Plaintiff.

26. If the Applicant / Plaintiff’s case is to be dismissed, it is seen that enormous prejudice will be caused to the Plaintiff resultantly leading to a windfall for the proposed Defendant Nos. 1(a), 1(b) and 1(c). In order to advance substantial justice such a stance of dismissing the Applicant’s case cannot be taken. Though there may be certain inadequacy in the explanation provided for the sufficient cause, still the explanation is there in the pleadings. No attempt has been made by the Applicant / Plaintiff to hide or shy away from the real fact. In this regard what is stated by the Supreme Court in the case of Sital Prasad Saxena (supra) refered to in the above decision is apt i.e. Courts should recall that “what has been said umpteen times that rules of the procedure are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties.” In the facts of the present case of course it may be said that the Applicant Plaintiff should have been more vigilant by visiting his Advocate at short intervals to check up the progress of the litigation. As held by the Supreme Court in the case of N. Balakrishnan (supra) referred to in the above decision, it is observed that during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be 30 of 33 used as a ground to depict the party as a litigant not aware of his responsibilities and to visit him with drastic consequences. In the present case I am therefore inclined to accept the submissions of Mr. Vashi, although they may not be pleaded in so many words and are short and accept the reasons given for the delay and the omission on the part of the Advocate of the Applicant / Plaintiff but subject to costs to be awarded. After all no litigant should suffer because of the mistake or omission on the part of his Advocate and should be summarily ousted. Further assuming that there is a delay for setting aside the abatement and the Application is made for the first time in the year 2022, the benefit of the Covid Period for the purpose of arresting the limitation period is also available to the Applicant. However in accepting the explanation for the long range of delay in the present case, I am inclined to impose costs on the Applicant / Plaintiff. The Applicant / Plaintiff is directed to pay costs of Rs. 50,000/- for the delay caused for filing the various proceedings alluded to herein above for seeking to set aside the abatement and condone the delay for filing the Application for bringing the legal heirs of the deceased Defendant No.1 on record as also abatement in the present case. These costs of Rs. 50,000/- shall be paid by the Applicant / Plaintiff to the proposed Defendant Nos. 1(a), 1(b) and 1(c) who are the legal heirs of original Defendant No. 1 within a 31 of 33 period of four weeks from today. This according to me will subserve the ends of justice as I am satisfied that the explanation offered by the Applicant / Plaintiff does not smack of any malafides and there is no reasonable ground to think that the delay has been intentional and occasioned by the Applicant / Plaintiff deliberately. Ultimately the explanation given by the Plaintiff is accepted on the basis of the above observations and findings. Hence the following order:-

(i) Interim Application (L) No. 36100 of 2022 stands allowed in terms of prayer clauses (a), (b) and (c);

(ii) Chamber Summons (L) No. 1987 of 2014 and Interim

Application No. 589 of 2019, both stand disposed of in terms of prayer clause (a) and (b) as set out in paragraph No. 20 of Interim Application No. 589 of 2019;

(iii) Abatement of the Suit qua deceased Defendant No. 1

(iv) Delay in applying for setting aside of the conditional order dated 31.03.2015 is condoned. Delay in filing the Application for setting aside the Abatement is condoned; 32 of 33

(v) The above orders are passed subject to payment of costs of Rs. 50,000/- by the Plaintiff to the Defendant Nos. 1(a), 1(b) and 1(c);

(vi) Amendment is permitted to be carried out within a period of two weeks from the date of uploading of this order;

(vii) It is clarified that amendment is allowed in terms of the schedule set out at page No. 15 of Interim Application No. 589 of 2019; (viii)It is clarified that Chamber Summons (L) No. 1987 of 2014 stands restored and disposed of along with Interim Application No. 589 of 2019 and Interim Application (L) No. 36100 of 2022

27. Interim Application (L) No. 2761 of 2022 be listed for hearing on 2nd February 2024. Amberkar [ MILIND N. JADHAV, J. ] 33 of 33 MOHAN AMBERKAR