JUDGMENT 1. - Heard learned counsel for the parties on following applications:- (i) application No. 6829 dated 15.3.2010 filed by the respondent No. 1/4 under Order 22, Rule 4 (5a) C.P.C. for abatement of appeal; (ii) application No. 7815 dated 26.3.2010 filed by the appellants under Order 22, Rule 4 C.P.C. for taking on record the legal representatives of deceased respondent No. 1/1 late Shri Ram Purshottam Sharma; (iii) application No. 7868 dated 27.3.2010 filed by the appellants under Order 22, Rule 9 C.P.C. for setting aside abatement of appeal; and (iv) application No. 11100 dated 5.5.2010 filed by the appellants under Section 5 of the Limitation Act for condoning the delay in filing the application under Order 22, Rule 4 C.P.C. for bringing the legal representatives of deceased respondent 1/1 on record. 2. Since, all the applications are related to the issue of abatement of the appeal against deceased respondent No. 1/1, setting aside abatement of appeal, for bringing on record the legal representatives of above deceased respondent and condonation of delay in filing the application for bringing on record the L.Rs. of the above mentioned deceased respondent, the same are being decided by this common order. 3. Before proceeding further it is relevant to mention here that the original plaintiff Ram Pratap Sharma (respondent No. 1 in the appeal) died on 5th January, 2004 leaving behind five legal representatives namely, Ram Purshottam Sharma, Smt. Vimla Sharma, Smt. Shanti Sharma, Shri Ram Krishan Sharma and Smt. Chandra Kala Sharma who have already been brought and taken on record. However, Ram Purshottam Sharma respondent No. 1/1 died on 10th November, 2009 leaving behind five legal representatives namely, Smt. Saroj Sharma, Shri Mukesh Sharma, Smt. Madhu Sharma, Smt. Sudha Sharma and Jyoti Sharma. But the legal representatives of respondent No. 1/1 Ram Purshottam Sharma were not brought on record within the period of 90 days, therefore, the application for abatement of the appeal was filed by respondent No. 1/4 and further three applications have been filed by the appellants. (i) Application No. 6829 dated 15.3.2010 filed by the respondent No. 1/4 under Order 22, Rule 4 (5a) CPC seeking abatement of the appeal and application No. 7868 dated 27.3.2010 filed by the appellants under Order 22, Rule 9 CPC for setting aside the abatement of appeal:- 4. (i) Application No. 6829 dated 15.3.2010 filed by the respondent No. 1/4 under Order 22, Rule 4 (5a) CPC seeking abatement of the appeal and application No. 7868 dated 27.3.2010 filed by the appellants under Order 22, Rule 9 CPC for setting aside the abatement of appeal:- 4. The application filed by respondent No. 1/4 under Order 22, Rule 4 (5a) C.P.C. for abatement of the appeal is within the prescribed period of limitation as the legal representatives of respondent No. 1/1 have not been brought on record within the period of 90 days. 5. Appellant No. 4 Rewati Raman Sharma, in the application under Order 22, Rule 4 C.P.C. for setting aside abatement of appeal, has submitted that the application for bringing on record the legal representatives of deceased respondent No. 1/1 was prepared on 14th December, 2009 which remained in the lawyer's office and by clerical mistake, the same could not be filed within time. In support of the aforesaid application under Order 22, Rule 4 C.P.C. appellant-applicant No. 4 has filed affidavit of Shri Kapil Totla, Advocate and further submitted that although, in the connected matter i.e. S.B. Civil First Appeal No. 75/1992 Smt. Uma Devi v. Ram Pratap & Ors. such application had already been filed and notices of the same were also issued by the Court. The appellant also submitted that there was no intention of delaying the proceedings but the mistake was on account of the reason beyond his control. 6. In his affidavit, Shri Kapil Totla, Advocate, has deposed that he got typed the application for bringing on record the legal representatives of deceased respondent No. 1/1 on 14th December, 2009 but unfortunately the application remained tagged with the file and could not be filed and the said bona fide mistake was at the level of his office and there was no malafide in the same more particularly, when application in another connected matter had already been filed by the appellants. 7. Counsel for respondent No. 1/4 has filed reply to the said application stating therein that the ground taken by the appellants is lame excuse and the appellants were not vigilant enough in pursuing the appeal. 8. Submission of the counsel for the appellant-applicants is that it is correct that respondent No. 1/1 Ram Purshottam Sharma died on 10th November, 2009. Counsel for respondent No. 1/4 has filed reply to the said application stating therein that the ground taken by the appellants is lame excuse and the appellants were not vigilant enough in pursuing the appeal. 8. Submission of the counsel for the appellant-applicants is that it is correct that respondent No. 1/1 Ram Purshottam Sharma died on 10th November, 2009. It is also correct that the present appellant-applicant filed an application for bringing on record the legal representatives of deceased respondent No. 1/1 in another connected appeal i.e. SB Civil First Appeal No. 75/1992 (supra) pending before this Court between the same parties arising out of the partition suit and the same was within limitation. The said application was allowed but no such application for bringing on record the legal representatives of deceased respondent No. 1/1, was filed in the present appeal (SB. CFA No. 196/1997) within the prescribed period of 90 days from the date of death i.e. 10th November, 2009 for the reasons that the application was prepared by the counsel but by the mistake of the clerk of the counsel, the same remained attached with the office file. In support of the said contention, the counsel for the appellant-applicants has placed reliance on the affidavit of Shri Rewati Raman Sharma, appellant No. 2 along with the affidavit of Shri Kapil Totla, Advocate. 9. Submission of the counsel for the appellant-applicants is that the appellants were vigilant enough and were pursuing the matter with due diligence and the application was prepared on 14th December, 2009 but the same could not be filed on account of bona fide mistake of the clerk of the counsel. Therefore, the reason stated by the appellant-applicant No. 5 for setting aside the abatement is bona fide and the same is based on true and plausible excuse and judicial discretion in setting aside the abatement is to be exercised by this Court. 10. Counsel for the appellant-applicants further submits that in the appeal, other legal heirs of the original plaintiff also are on record and, therefore, the appeal would not abate as a whole but would abate only against deceased respondent 1/1 and is required to be decided on merits against the surviving respondents. Therefore, if the abatement of appeal against deceased respondent No. 1/1 is set aside, no prejudice will be caused to the surviving respondents. 11. Therefore, if the abatement of appeal against deceased respondent No. 1/1 is set aside, no prejudice will be caused to the surviving respondents. 11. Respondent No. 1/4 has also filed application (no. 6829) for abatement of the appeal on account of not bringing on record the legal representatives of deceased respondent No. 1/1 in time. 12. Counsel for respondent No. 1/4 submits that the said mistake is a lame excuse for getting the delay in filing the application under Order 22, Rule 4 C.P.C. condoned and the appellants were not vigilant enough in pursuing the appeal. 13. Counsel for respondent No. 1/4 further submits that the appellants were negligent in pursuing the present matter and the excuse taken by the appellants is a lame excuse. Therefore, the Court should not exercise discretion in favour of the appellants. In support of the aforesaid submission, counsel for respondent No. 1/4 has placed reliance on the judgment of the Apex Court in the case of Balwant Singh (dead) v. Jagdish Singh and Ors., (2010) 8 SCC 685 . 14. In the case of Balwant Singh (supra) their Lordships have also considered the observations made in para No. 8 in the case of Mithalilal Dalsangar Singh v. Annabai Devram Kini (2003) 10 SCC 691 , wherein it has been held by their Lordships of the Supreme Court that "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" and how the said liberal approach is to be construed while exercising the judicial discretion, some principles have been laid down in paras 27, 37 and 38 of the judgment in the case of Banwant Singh (supra) for setting aside abatement as well as for condonation of delay, on finding 'sufficient cause' which are as follows:- 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. 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." (emphasis supplied). "37. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom. 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 alongwith an application under Section 5. 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. 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 decided the matter on merits. 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 re-filing 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. We may also notice here that this judgment had been followed with approval by an equi-bench of Katari Suryananayana. 38. Above are the principles which should control the exercise of Judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. 38. Above are the principles which should control the exercise of Judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications." 15. I have gone through the contents of the applications and reply and further considered the rival submissions of the counsel for the parties. 16. In my view, the appellants were not negligent and were vigilant enough in pursuing the matter with due diligence and even if there was any mistake in not filing the application, it was beyond their control as the same was on the part of the clerk of the counsel. The said explanation of the appellants further finds support from the fact that identical application for bringing on record the legal representatives of the deceased respondent was filed in another connected civil first appeal in time which has ultimately been allowed by the Court. The explanation given by appellant No. 2 Rewati Raman Sharma appears to be reasonable and plausible which is supported by his own affidavit and further the affidavit of Advocate Kapil Totla, who prepared the application for bringing on record the legal representatives of the deceased respondent but the same could not be filed on account of mistake on the part of his clerk. The appellants remained under the bona fide impression that the application prepared was filed in the Court also and non-filing of the same was beyond their control. This Court is persuade to believe that the explanation rendered is not only true but is worthy of exercising judicial discretion in favour of the appellants. 17. It is also to be noted that in the appeal, there are so many surviving respondents. Thus, in the event of abatement of appeal against respondent No. 1/1, the appeal will survive against the remaining respondents and is required to be decided on merits. Therefore, if abatement of appeal is set aside, no prejudice will be caused to the surviving respondents. 18. Since, the matter is of setting aside of abatement and further passing order on the application for bringing on record the legal representatives of the deceased respondent, would result in reviving the present appeal against respondent No. 1/1, which, in my view, is required to be decided on merits. However, respondent No. 1/4 can be compensated by way of cost of Rs. 2,000/-. 19. The application of the appellant-applicants for setting aside abatement of the appeal is, allowed and the application filed by respondent No. 1/4 for declaring the appeal having been abated is, dismissed.Application (ii) No. 7815 dated 26.3.2010 filed by the appellants under Order 22, Rule 4 C.P.C. and application (iv) No. 111000 dated 5.5.2010 filed by the appellants under Section 5 of the Limitation Act for condoning the delay in filing application under Order 22, Rule 4 C.P.C. 20. Keeping in view the principles laid down in the Balwant Singh's case (supra) and other judgments referred therein which have been referred to and discussed hereinabove, the cause shown for not filing the application for bringing on record the legal representatives of deceased respondent No. 1/1, deserves to be condoned and the same is, condoned. 21. For the reasons mentioned in the application, the application under Order 22, Rule 4 C.P.C. is also allowed and the legal representatives of deceased respondent No. 1/1 Ram Purshottam Sharma are taken on record. 22. The aforesaid order will come into effect on payment of Rs. 2,000/- by the appellants to respondent No. 1/4 by way of cost. 23. The amended cause title be taken on record.Application No. 6829/2010 Dismissed and Application No. 7815/2010 Allowed. *******