JUDGMENT The instance appeal under Section 100 of Civil Procedure Code has been filed against the judgment and decree dated 4/9/2013 passed in Civil Appeal No. 64/2013, whereby the First Appellate Court while dealing with the application for condonation of delay in filing the appeal, filed under Section 5 of the Limitation Act has been rejected, for the reasons stated in paras 16 and 17 of the impugned judgment, inter-alia on the grounds that the appellant had made factual incorrect statement in the said application under Section 5 of the Limitation Act, which are misleading in nature, while exercising the judicial discretion to deal with such application. Besides, appellant not only remained vigilant but also concocted the facts which are falls and misleading, as such the appellant did not come to the Court with clean hands in the matter while approaching the Court beyond the period of limitation. Application as such was found lacking in bona-fide. Under such circumstances the First Appellate Court by detailed order with comprehensive reasons dismissed the application under Section 5 of Limitation Act and resultantly the appeal has also dismissed. 2. Facts relevant for consideration of this appeal are that the respondent Mahendra Kumar Jain (died on 18.3.2013) now, deceased had instituted eviction proceedings against the appellant/tenant in respect of suit premises situated at the 1st Floor of House No. 49/228, Madhoganj, Lashkar, Gwalior under Section 12(1)(A), 12(1)(b) and 12(i)(e) of Madhya Pradesh Accommodation Control Act. The trial Court vide judgment and decree dated 28.2.2013 upon consideration of pleading of the parties as well as oral and documentary evidence placed on record, dismissed the suit under Section12(1)(A) and 12(1)(b) but decreed the suit under Section 12(i)(e) for bona fide need of respondent-plaintiff. Being aggrieved by the aforesaid judgment and decree the appellant preferred an appeal under Section 96 of CPC before VIII Additional District Judge, Gwalior on 6.4.2013 against dead person i.e. Mahendra Kumar Jain as respondent/plaintiff. As the respondent/plaintiff had expired on 18.3.2013, his son Dharmendra Kumar Jain submitted an application on 26.4.2013 under Section 151 of CPC before the learned First Appellate Court, wherein it was pleaded that the original plaintiff/respondent i.e. Mahendra Kumar Jain since had expired on 18.3.2013 and the appeal was filed against a dead person on 26.4.2013 the same was nullity and not maintainable in the eyes of law. It was prayed that the appeal be dismissed. It was prayed that the appeal be dismissed. In response thereto on 29.4.2013 the appellant filed an application under Order 22 Rule 4 of CPC and contended that the legal representatives of dead respondent be taken on record. The said application was opposed by the son of deceased Mahendra Kumar Jain that the provision of Order 22 Rule 4 of CPC is not applicable as it is not a case where the respondent had died during the proceedings but in-fact appeal has filed against a dead person. 3. The First Appellate Court after hearing the both parties disposed off application under Section 151 of CPC filed by the appellant Dharmendra Kumar Jain and application filed by the appellant in response thereto under Order 22 Rule 4 of CPC, by detailed order and held that the appeal against the dead person was not maintainable. However, exercising the power under Order 41 Rule 3 of CPC returned the appeal memo with documents with liberty to file the appeal again with necessary amendment. The First Appellate Court further ordered that the period spent from the date of institution of appeal till passing of the order i.e. 4.4.2013 to 4.5.2013 shall be excluded while computing the period of limitation as the period spent was in pursing the remedy bona-fide. 4. Pursuant to the said order the appellant filed an application for returning of memo of appeal with documents on 18.7.2013 and on 19.7.2013 the appeal memo with documents were returned to the appellant's counsel. Thereafter the appellant again submitted the appeal on 23.7.2013, which was admittedly barred by time. For condonation of delay, an application under Section 5 of Limitation Act was filed. The appellant/plaintiff in his application submitted that he was posted at Dehradun (Uttaranchal) with Insurance Company as Class-1 Officer, and as per rules application for leave of Class-1 officer cannot be allowed without cogent reasons. He remained in faith that the appeal must have been filed by his Advocate and he would be informed about the proceedings by his counsel. During the period of his stay at Dehradun, he reached the age of superannuation, but due to disaster at Uttaranchal he was not able to come to Gwalior. The appellant further pleaded that after return when he reached Gwalior, he received summon for appearance in execution proceedings on 15.7.2013. During the period of his stay at Dehradun, he reached the age of superannuation, but due to disaster at Uttaranchal he was not able to come to Gwalior. The appellant further pleaded that after return when he reached Gwalior, he received summon for appearance in execution proceedings on 15.7.2013. On 15.7.2013 he appeared in the Execution proceedings and contacted his counsel Shri Deepak Sharma. At that point of time, his counsel informed him about the order dated 4.5.2013 passed by the 14th ADJ, Gwalior and thereafter on 16.7.2013 he filed an application (in fact on 18.7.2013) to receive back appeal memo and documents and he received on 19.7.2013. Since 20th July and 21st July 2013 were holidays, he filed the appeal on 23.7.2013 and pleaded that delay caused in filing the appeal was bona fide and sought condonation of delay. The said application was opposed with the written and detailed para-wise reply, filed by the appellant Dharmendra Kumar Jain. The First Appellate Court considered the application under Section 5 of Limitation Act and as the appeal was barred by 45 days, the First Appellate Court has given detail reasoning while it dismissed the application. On facts the Court found that the appellant failed to establish firstly, as to when he was transferred to Dehradun from Gwalior secondly he had not filed any document to prove that he had applied for leave, but the same has not sanctioned by his authority thirdly appellant had not filed any document that he has retired from service. The Court further pointed out that in the Cause Title of Memo of Appeal, the appellate was described as "Brijesh Kumar Gupta son of Laxminarayan Gupta and had mentioned address Madhoganj Lashkar, Gwalior, M.P. and he mentioned his age 45 years, as such on his own showing he was not retired from service as age of the retirement of Class-1 as per rules 60 years. Besides, the excuse pleaded that the appellant was trapped in Dehradun due to disaster in Uttaranchal was found to be factually incorrect for more than reasons, in as much as, disaster in Uttaranchal took place between 14 to 17th June, 2013 and, therefore, the appellant had sufficient time from 4.5.2013 to 14.6.2013 to file second appeal but he failed to do so without any plausible reasons. Even otherwise, it is found at that time Dehradun (Uttaranchal) was not at all affected. Even otherwise, it is found at that time Dehradun (Uttaranchal) was not at all affected. Considering the factual aspects with due diligence the First Appellate Court reached to the conclusion that the appellant had taken false and frivolous grounds. He concocted the story of disaster to show the bona fide. In addition thereto it was admitted that the Civil Courts were closed from 20th May, 2013, even then also from 5.5.2013 to 19.5.2013 appellant had sufficient time to file appeal fresh. On such consideration the First Appellate Court dismissed the application and resultantly the appeal was dismissed. 5. The First Appellate Court relied on the judgments Ramlal Vs. Rewa Coalfields Ltd. ( AIR 1962 SC 361 ) to fortify its order. Since the appellant did not come forward to explain the delay with clean hands and taken false stands, it was held by the High Court of Madhya Pradesh that no indulgence can be shown to such applicant for condonation of delay. Another judgment relied upon by the First Appellate Court in Balwant Singh (Dead) Vs. Jagdish Singh and others AIR 2010 SC 3043 , wherein the Hon'ble Supreme Court while dealing the explanation 'sufficient excuse' engrafted in Section 5 of the Limitation Act, held that the party has been thoroughly negligent in impleading its right and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law. The Court further held that, "therefore, to say that the Court should take a very liberal approach and interpret the provision of Order XXVI Rule 9 of CPC and Section 5 of the Limitation Act in such manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative, so, it was held that application for condonation of delay cannot be allowed as a matter of right and even in a routine manner" 6. Now, the Second Appeal arising out from the aforesaid order of First Appellate Court, wherein the description of appellant is as under: “Brijesh Kumar Gupta s/o Shri Laxminarayan Gupta, Aged 45 years, Occupation: Service, R/o Madhoganj, Lashkar, Gwalior and in support of application under Section 151 of CPC for staying the execution proceedings in the application, the appellant described himself Brijesh Kumar Gupta Shri Laxminarayan Gupta, Aged 45 years, Occupation: Service, R/o Madhoganj, Lashkar, Gwalior on 16.9.2013” 7. The learned counsel for the appellate vehemently argued while criticizing the order dated 4.5.2013 passed by the learned First Appellate Court (while memo of appeal with documents were ordered to be returned with direction that the period spent from 4.4.2013 to 4.5.2013 while pursuing the remedy to be excluded while computing the limitation, with liberty to file fresh application) argued that the First Appellate Court committed jurisdictional error while passing the aforesaid order as even if the appeal was filed against a dead person, it should not have been returned instead the application filed under Order 22 Rule 4 of CPC for substituting the legal representatives of the deceased Mahendra Kumar Jain should have been allowed and appeal as such, should have been held to be maintainable. The learned counsel referred to Order 41 in support of his submission. On merits of the application for condonation of delay the learned counsel sought condonation on the ground that the appellant since had no knowledge about the proceedings of the First Appellate Court, delay caused may be condoned. The appellant should not suffer for the default of his counsel. Learned counsel relied on the judgment AIR 1972 Manipur 3 (V-59 C-2) Henjangam Kukki Vs. Taichung Tangkhul, AIR 1967 SC 1470 (v 54 C 309) Phoolchand and another Vs. Gopal Lal, AIR 1976 Raj 65 Ramjeewan Vs. Chand Mohammed. 8. The learned counsel for the respondents supported the impugned order and argued that the provision of Order 22 Rule 4 was not at all applicable when the first time appeal was filed against the judgment and decree dated 28.2.2013 passed by the XIV Civil Judge, Class-II, Gwalior in Civil Suit No. 63A/2011 on 4.4.2013 against original plaintiff Mahendra Kumar Jain, who died on 18.3.2013. The First Appellate Court has rightly exercised the power under Order 41 Rule 3 of CPC while it returned the memo of appeal to present in accordance with law, excluding the period spent while pursuing the remedy for purpose of computation of limitation. Besides, order dated 4.5.2013 passed by the First Appellate Court in Appeal No. 16-A/13 was never challenged either in appeal or revision by appellant. Instead the said order was acted upon by the appellant while he took back the memo of appeal for presenting the same afresh. Learned counsel further argued that no indulgence is warranted as the learned ADJ has considered the entire matter and by comprehensive order has decided the same by impugned order, exercising the jurisdictional discretion on the principle of law laid down by the Hon'ble Apex Court. The learned counsel relied on the following judgments 2005 (1) W.P. Weekly Note 87Balkishan Chaturvedi Vs. Ramsingh, 2002(1) M.P.L.J. Suresh @ Pappu Vs. Vidhi Chandra Dharamshala and others, 1998 (1) M.P.L.J. 534 Bank of India Vs. Swaisingh Ramsingh Baghel, 2000(II) MPWN 84 Devilal Vs. Kantabai and others and 2010(8) SCC 685 Balwant Singh Vs. Jagdish Singh and others. 9. Heard both the parties. 10. As regards appellant's first contention that even if the respondent - plaintiff had expired on 18.3.2013 the appeal filed on 4.4.2013 against the judgment and decree dated 28.2.2013 against a dead person ought to have been held maintainable. The Court ought to have allowed the application under Order 22 Rule 4, instead of returning the memo of appeal. In the opinion of this Court, the argument is misconceived and misdirected. Order 22 Rule 4 being relevant is produced below (Relevant portion) 4. Procedure in case of death of one of several defendants or of sole defendant- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendants or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.... 11. A bare perusal reveals that Order 22 Rule 4 of CPC has no application to the facts in hand. 11. A bare perusal reveals that Order 22 Rule 4 of CPC has no application to the facts in hand. The said provision will be applicable only in such eventuality where during the pendency of proceedings the sole respondent had died. It follows that the said provision will not apply if death of the sold respondent occurred prior to the filing of the appeal. The Division Bench of this Court in the case of Hindustan General Insurance Society Ltd. Vs. Kedarnarayan AIR 1956 Madhya Bharat 76 has ruled as under: “The substitution of the heirs of the deceased defendant in a suit or respondent in appeal is permissible where the defendant or respondent was alive at the date of the institution. A suit or appeal filed against a sole defendant or respondent who was dead on the date of the institution is a nullity and the Court has no jurisdiction to substitute the heirs of the deceased under O.22 Rule 4, CPC or add their names in exercise of the powers conferred upon it by O.1 R.10, CPC.” 12. Besides, in another case Smt. Agrawal wd/of G.S. Agrawal and another VS. Arya Vidhya Sabha and another 2000 (3) MPLJ 412 the Court has held that if defendant had died before the institution of suit, the provision of Order 22 Rule 4 will not apply. Legal representative of sole defendant cannot be brought on record by way of amendment. The entire proceedings are nullity and void. Suit filed against a dead person cannot be deemed to be proper suit. Hence, this Court is of the opinion that the submission made in this behalf is devoid of substance and deserves to be rejected. 13. Further more, the First Appellate Court while passing the order dated 4.5.2013 in Civil Appeal No. 16A/2013 did not commit any mistake to return the appeal memo to the appellant under Order 41 Rule 3 of CPC with liberty to present the same in accordance with law, excluding the period from the date of institution of appeal till passing of the order dated 4.4.2013 to 4.5.2013 as excluded for computation of limitation. 14. In the instant case, the trial Court has passed the decree on 28.2.2013 in favour of the respondent plaintiff Mahendra Kumar Jain. Mahendra Kumar Jain died on 18.3.2013 whereas the First Appeal was filed on 4.4.2013. 14. In the instant case, the trial Court has passed the decree on 28.2.2013 in favour of the respondent plaintiff Mahendra Kumar Jain. Mahendra Kumar Jain died on 18.3.2013 whereas the First Appeal was filed on 4.4.2013. As such there was no occasion for bringing the legal representatives of Mahendra Kumar Jain during the pendency of the suit. The case law cited viz. AIR 1976 Rajasthan 65 Ramjeewan (supra) wherein Second Appeal was filed against one Chand Mohammed, who had died during the pendency of First Appeal in the lower Appellate Court and his legal representatives have been brought on record. By mistake Cause Title in the Lower Appellate Court was, however, not amended and the decree sheet was drawn mentioning the name of Chand Mohammad as appellant instead of his legal representatives. This error resulted into filing the appeal by Mr. H.M. Parikh against Chand Mohammad dead person. Under these circumstances, the Court found that the description of respondent was due to bona fide mistake and in advertence showing to dead person as respondent and it is held that mistake committed was curable. 15. Facts in case cited AIR 1972 Man 3 Henjangam Kuki (Supra) are entirely distinguishable hence, the same cannot be pressed into service. 16. In view of the aforesaid, enunciation of law as propounded by this High Court, I am of the opinion, that Order 22 Rule 4 has no application to the facts in hand in as much as, the suit having been decreed on 28.2.2013, the respondent plaintiff died on 18.3.2013 and thereafter on 4.4.2013 appeal was filed. Hence, appeal filed against a dead person was nullity and not maintainable as rightly held by the ADJ, Gwalior vide order dated 4.5.2013. 17. At this juncture, it is relevant to point out that the appellant in fact has acted upon the order dated 4.5.2013 while it moved application on 18.7.2013 for returning the memo of appeal with documents, the same was taken on record on 19.7.2013 and memo of appeal with documents were returned to the counsel for the appellant. Besides, at no point of time order dated 4.5.2013 was the subject matter of challenge either in appeal or revision at the instance of appellant. Hence, the aforesaid first contention of the appellant, as regards order dated 4.5.2013 was nullity and without jurisdiction is rejected as being devoid of substance. 18. Besides, at no point of time order dated 4.5.2013 was the subject matter of challenge either in appeal or revision at the instance of appellant. Hence, the aforesaid first contention of the appellant, as regards order dated 4.5.2013 was nullity and without jurisdiction is rejected as being devoid of substance. 18. Before adverting to the contention of the appellant for condonation of delay in filing appeal (second time) it is apt to quote the comprehensive interpretation of Section 5 of the Limitation Act by the Hon'ble Supreme Court of in the matter of Ramlal Vs. Rewa Coalfields Ltd., ( AIR 1962 SC 361 ) this Court held that, “In construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the decree-holder to treat the decree as binding between the parties and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause of excusing delay is shown discretion is given to the court to condone the delay and admit the appeal. It is further necessary to emphasise that even if the sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage the diligence of the party or its bona fides may fall for consideration.” 19. In another case in the matter of Balwant Singh (dead) Vs. Jagdish Singh A.I.R. 2010 S.C. 3043, the Hon'ble Supreme Court while analyzing the complete case laws on interpretation and applicability of Section 5 of the Limitation Act laid emphasis on the conduct and bonafides of the applicant and material facts to be pleaded to satisfy ingredients of sufficient cause under Section 5 of Limitation Act in order to persuade the Court for exercising discretion in its favour. 20. 20. Now turning to the facts in hand, the first appellate Court in its detailed order has discussed the conduct and bonafides of the applicant in paragraphs 16, 17 and 24 of the order wherein the averments made in the application for condonation of delay are discussed and found that applicant made incomplete, incorrect statements of the facts misleading in nature. 21. In the opinion of this Court, the appellant has not come to the Court with clean hands, he has not been vigilant in perusing the matter to file appeal. He lacked bonafide, fabricated facts misleading in nature while filing application under Section 5 of the Limitation Act. The averments made in the application and the description made in the memo of appeal and affidavit filed in support of the application under Section 151 of C.P.C. on 16.9.2013 are contrary in as much as in the application he pleaded to have retired from service whereas in the affidavit he mentioned as aged 45 years and occupation in service. 22. In view of the aforesaid facts, the appeal sans merit. No interference is warranted in order passed by the First appellate Court. Even otherwise, the subject matter of the suit related to eviction of the appellant/tenant from the suit premises. The trial Court vide order dated 28.2.2013 has decreed the Suit under Section 12(1) (e) of Madhya Pradesh Accommodation Control Act on the ground of bonafide need of the respondent/plaintiff for residential premises due to increase in the members of the family and the appellant/tenant is continued as tenant since 1984, bringing to an end the tenancy which lasted about 30 years. The original landlord has died. The tenant admittedly living in Dehradun. In view of these facts, in the opinion of the Court no equity lies in favour of appellant to claim in the matter of exercise of discretionary jurisdiction under Section 5 of the Limitation Act. 23. Appeal is dismissed. No order as to cost.