Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 337 (PAT)

Lala Yadav v. Sheo Nandan Yadav

2014-03-10

BIRENDRA PRASAD VERMA

body2014
ORDER Re. Interlocutory Application No. 1487 of 2007 and Interlocutory Application No. 1488 of 2007 Interlocutory Application No. 1487 of 2007 has been filed under Order 22, Rule 3 read with Rule 9 of the Code of Civil Procedure on behalf of the widow, two sons and two daughters of the sole appellant Lala Yadav stating therein that during the pendency of the First Appeal, the sole appellant Lala Yadav died on 14.6.2005 leaving behind him his heirs and legal representatives, fully detailed in Paragraph No. 3 of the aforesaid Interlocutory Application. In fact, the aforesaid heirs and legal representatives of the deceased appellant are the applicants in the aforesaid Interlocutory Application. A prayer has been made on their behalf in the aforesaid Interlocutory Application that the name of the sole deceased appellant may be expunged from the array of the parties of the memorandum of appeal and they may be substituted in place of the deceased sole appellant, after setting aside the abatement, if any, of the appeal, and further, they may be permitted to prosecute the First Appeal. 2. I.A. No. 1488 of 2007 has been filed on behalf of the applicants under Section 5 of The Limitation Act, 1963 for condoning the delay in filing the substitution petition vide I.A. No. 1487 of 2007 on the grounds mentioned there in that application. 3. Learned counsel appearing on behalf of the applicants has submitted that after the death of the sole appellant, the applicants came to know about the pendency of the present First Appeal for the first time on 22.9.2005, when they received a letter by the counsel of the appellant, and immediately thereafter on 23.9.2005, they contacted the learned counsel appearing on behalf of the original deceased appellant. It has been asserted on behalf of the applicants that prior to 22.9.2005, they had no knowledge or information about the pendency of the first appeal before this court, as the sole appellant himself was looking after the appeal and was making necessary pairvi before this Court. It is further submitted that after making necessary arrangements and execution of Vakalatnama by all the applicants, they acted promptly and got I.A. No. 5120 of 2005 filed on 6.10.2005 seeking their substitution in place of the deceased sole appellant. It is further submitted that after making necessary arrangements and execution of Vakalatnama by all the applicants, they acted promptly and got I.A. No. 5120 of 2005 filed on 6.10.2005 seeking their substitution in place of the deceased sole appellant. However, he has fairly conceded that the order passed on 17.1.2006 by the learned Lawazima Board for service of copy of the aforesaid Interlocutory Application on the learned counsel appearing on behalf of the respondents could not be complied with. According to him, in the meantime, the proposed heirs had taken away the entire file from the learned lawyer on the ground that a talk was going on between the parties for compromise. 4. It is not under dispute that on account of non-compliance of the aforesaid order dated 17.1.2006, the matter was listed before a Bench of this Court, whereafter by an order dated 4.8.2006 one week’s further peremptory time was granted to the applicants for complying the aforesaid order dated 17.1.2006. It is pleaded that since the entire file was taken away by the clients, therefore, the aforesaid order dated 4.8.2006 passed by a Bench of this Court could not be complied with, as a result thereof I.A. No. 5120 of 2005 stood dismissed on account of non-compliance of the Court’s peremptory order. 5. Learned counsel appearing on behalf of the applicants has contended that despite dismissal of the aforesaid I.A. No. 5120 of 2005 and despite death of the sole appellant, a note of abatement of the First Appeal has not been recorded. According to him, when talk of compromise failed, then on 6.3.2007 the proposed heirs came back to Patna with the entire file informing their counsel that compromise could not be arrived at between the parties. Accordingly, on 9.3.2007, I.A. No. 1487 of 2007 as also I.A. No.1488 of 2007 were filed before this Court for the reliefs indicated above. 6. Learned counsel appearing on behalf of the applicants has further submitted that aforesaid I.A. No. 5120 of 2005 was not dismissed on merit, rather it stood dismissed on account of non-compliance of the Court’s order. Therefore, the subsequent substitution petition vide I.A. No. 1487 of 2007 is not barred by doctrine of res judicata and is fit to be considered on merit. Therefore, the subsequent substitution petition vide I.A. No. 1487 of 2007 is not barred by doctrine of res judicata and is fit to be considered on merit. It is next contended that the applicants have shown sufficient cause for condonation of delay as also for setting aside the abatement of the appeal. Therefore, according to him, the limitation occurred in filing the substitution petition is fit to be condoned, abatement of appeal is also fit to be set aside and, accordingly, the applicants are entitled to be substituted in place of the deceased sole appellant. 7. In support of his above contention, learned counsel appearing on behalf of the applicants has placed reliance on the judgments of the Hon’ble Apex Court in the cases of Ganeshprasad Badrinarayan Lahoti vs. S.J. Chourasiya [ AIR 2004 SC 4158 ], K. Rudrappa vs. Shivappa [ AIR 2004 SC 4346 ], Shivashankar Prasad Sah Vs. Baikunth Nath Singh [1970 PLJR (SC) 197], Ramnath Sao vs. Gobardhan Sao [ (2002) 3 SCC 195 ], Perumon Bhagvathy Devaswom vs. Bhargavi Amma [ (2008) 8 SCC 321 = AIR 2009 SC (Supp) 886], and S. Ganesharaju vs. Narasamma [ (2013) 11 SCC 341 ]. 8. Per contra, learned Senior counsel appearing on behalf of the respondent No.2 has strongly opposed the prayer made in the aforesaid two Interlocutory Applications. According to him, admittedly, I.A. No. 5120 of 2005 filed in the same subject matter stood dismissed on account of non-compliance of the Court’s order dated 4.8.2006, but no petition for restoration was filed by the applicants and instead they have chosen to file separate substitution petition and limitation petition, as referred to above. According to him, the present substitution petition vide I.A. No.1487 of 2007 is liable to be dismissed on the twin grounds, viz. firstly, this is barred by the principles of res judicata, and secondly, sufficient cause has not been shown by the applicants for condonation of delay and for setting aside the abatement of appeal. In support of his above contention he has also placed reliance on the judgments of the Hon’ble Apex Court in the cases of State of Gujarat vs. Syed Mohd. Baquir El Edross [ AIR 1981 SC 1921 = (1982) 1 SCR 551 ], and Lal Chand vs. Sh. Paras Ram [ JT 2000 (4) SC 408]. 9. In support of his above contention he has also placed reliance on the judgments of the Hon’ble Apex Court in the cases of State of Gujarat vs. Syed Mohd. Baquir El Edross [ AIR 1981 SC 1921 = (1982) 1 SCR 551 ], and Lal Chand vs. Sh. Paras Ram [ JT 2000 (4) SC 408]. 9. It would be relevant to mention here that on the request of learned Senior counsel appearing on behalf of the respondent No.2, by an order dated 9.1.2014, the matter was adjourned, enabling him to obtain complete instructions and file a counter affidavit within a period of three weeks in the aforesaid two Interlocutory Applications. In fact, a composite counter affidavit/rejoinder has been filed on behalf of the respondent No.2, but the facts pleaded in the aforesaid two Interlocutory Applications have not at all been disputed. Purely on a question of law, the prayer for substitution after condonation of delay is sought to be resisted on behalf of the respondent No.2. 10. After having heard the parties at great length and on consideration of the materials available on the record, as also taking into consideration the judicial pronouncements by the Hon’ble Apex Court, this Court is of the considered opinion that the instant substitution petition vide I.A. No. 1487 of 2007 cannot be rejected on the ground of res judicata, as admittedly I.A. No. 5120 of 2005 was not rejected on merit rather it stood dismissed on account of non-compliance of the Court’s order. This Court is further of the opinion that the applicants have been able to show sufficient cause for condonation of limitation and for setting aside the abatement of the appeal. 11. The Hon’ble Apex Court in the case of Ganeshprasad Badrinarayan Lahoti vs. S.J. Chourasiya (supra) has held that if an application filed earlier for substitution is rejected on the ground that it was filed without any petition seeking condodnation of delay, then subsequent petitions filed for substitution, condonation of delay and for setting aside abatement cannot be rejected on the ground of res judicata. For better appreciation, relevant portion of paragraph 10 of the aforesaid judgment is reproduced herein below: – “We are also of the view that after dismissal of application Exh. 22 the appellants had filed three applications Exh. 29, Exh.31 and Eh.33 which ought to have been allowed considering overall and attenuating circumstances of the case. For better appreciation, relevant portion of paragraph 10 of the aforesaid judgment is reproduced herein below: – “We are also of the view that after dismissal of application Exh. 22 the appellants had filed three applications Exh. 29, Exh.31 and Eh.33 which ought to have been allowed considering overall and attenuating circumstances of the case. The doctrine of res judicata could not be applied when the Court felt the applications were not maintainable. In our considered view, this is not a case of inaction or negligence on the part of the appellants.” 12. The ratio laid down in the case of Ganeshprasad Badrinarayan Lahoti vs. S.J. Chourasiya (supra) has been reiterated in the Case of K. Rudrappa vs. Shivappa (supra). 13. A three Judge Bench of the Hon’ble Apex Court in the case of Shivashankar Prasad Sah vs. Baikunth Nath Singh (supra) has held that if suit has not been dismissed on merit, then subsequent suit is not barred on the principle of res judicata. While laying down the aforesaid law, several other judicial pronouncements were taken into consideration by the Hon’ble Apex Court. Relevant portion of paragraph 4 of the aforesaid judgment reads as follows: – “Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action.” 14. The Hon’ble Supreme Court in the case of Ramnath Sao vs. Gobardhan Sao (supra) while considering the scope of Section 5 of the Limitation Act and order 22, Rule 9 of the Code of Civil Procedure has held that sufficient cause should receive a liberal construction so as to advance substantial justice where no negligence or inaction or want of bona fides is imputed to a party. Relevant portion of paragraph 12 of the aforesaid judgment is reproduced herein below: – “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 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 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.” 15. The scheme, scope and mandate of Order 22, Rule 4 and Rule 9 read with Rule 11 of the Code of Civil Procedure came up for consideration before the Hon’ble Apex Court once again in the case of Perumon Bhagvathy Devaswom vs. Bhargavi Amma (supra). After considering large number of judicial pronouncements, the Hon’ble Apex Court has laid down the principles applicable for setting aside the abatement. After considering large number of judicial pronouncements, the Hon’ble Apex Court has laid down the principles applicable for setting aside the abatement. Various factors/grounds, which can be taken into consideration for setting aside abatement have been indicated in paragraph 13 of the aforesaid judgment, which read as follows: – “The principles applicable in considering applications for setting aside abatement may thus be summarised as follows: – (i) The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words “sufficient cause” in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refilling 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. 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 refilling 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.” 16. Recently, in the case of S. Ganesharaju vs. Narasamma (supra) the Hon’ble Apex Court has reiterated the aforesaid principles and has held that the expression “sufficient cause” has to be given liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fidies on the part of the appellants for not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. 17. However, the judgments referred to by learned Senior counsel appearing on behalf of the respondent No.2 in the cases of State of Gujarat vs. Syed Mohd. Baquir El Edross (supra) and Lal Chand vs. Sh. Paras Ram (supra) are practically orders passed by the Hon’ble Apex Court on the given facts of that particular cases and, therefore, it cannot be said that any contrary principles have been enunciated by the Hon’ble Apex Court in those two judgments. 18. Coming to the present case, it is true that the applicants had earlier filed I.A. No. 5120 of 2005 seeking their substitution after setting aside the abatement of the appeal. The aforesaid I.A. No. 5120 of 2005 stood dismissed on account of non-compliance of the Court’s order. It is not the case of either party that issue was decided by this Court in the aforesaid Interlocutory Application on merit. The aforesaid I.A. No. 5120 of 2005 stood dismissed on account of non-compliance of the Court’s order. It is not the case of either party that issue was decided by this Court in the aforesaid Interlocutory Application on merit. Though there appears to be some lapses on the part of the applicants, as they are said to have taken away the entire file from their lawyer after filing I.A. No. 5120 of 2005 for negotiating the compromise with the other side, and thereafter they did not approach their lawyer for quite a long time. Ultimately, when negotiation of compromise failed, then they came back to their lawyer, but in the meantime, I.A. No. 5120 of 2005 stood rejected on account of non-compliance of Court’s order dated 4.8.2006. Therefore, the present substitution petition and limitation petition were filed on 9.3.2007 and in that process there has been some delay. But, on the basis of this negligence or delay, both the aforesaid Interlocutory Applications cannot be thrown out in view of principles laid down by the Hon’ble Apex Court, as referred to above. 19. In the aforesaid facts and circumstances, this Court is of the considered opinion that the applicants have been able to show sufficient cause for condonation of delay in filing the substitution petition as also for setting aside the abatement of the appeal, and, consequently their substitution in place of the deceased sole appellant. 20. For the reasons recorded above, I.A. No. 1488 of 2007 is allowed and delay in filing the substitution petition is hereby condoned. The abatement of the appeal is hereby set aside and accordingly, prayer for substitution made in I.A. No. 1487 of 2007 is allowed. 21. Now, the name of the sole deceased appellant shall be expunged from the array of the parties of the memorandum of appeal and the applicants shall be substituted in his place. 22. Before parting with the order, this Court is also of the opinion that respondents are required to be compensated on the ground of certain negligence on the part of the applicants. Therefore, it is directed that this order is subject to payment of costs of Rs. 2,000/- by the applicants to learned counsel appearing on behalf of the respondent No.2 within a period of four weeks. A receipt showing payment of costs of Rs. Therefore, it is directed that this order is subject to payment of costs of Rs. 2,000/- by the applicants to learned counsel appearing on behalf of the respondent No.2 within a period of four weeks. A receipt showing payment of costs of Rs. 2,000/- must be filed within the aforesaid period of four weeks, failing which it shall be construed that both the aforesaid Interlocutory Applications stood rejected on account of non-compliance of the Court’s order. Re. Interlocutory Application No. 6016 of 2005 23. In view of order passed on I.A. Nos. 1487 of 2007 and 1488 of 2007, the present Interlocutory Application does not survive and is, accordingly, rejected.