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2016 DIGILAW 215 (ORI)

Sudhansu Giri v. Ashish Mohapatra

2016-03-16

D.DASH

body2016
JUDGMENT : D. DASH, J. 1. This appeal has been filed challenging the judgment dated 29-10-2005 passed by the learned ad hoc Addl. District Judge, Balasore in R.F.A. No. 10 of 2003 rejecting the application filed by the present appellants who were also the appellants before the said court for substitution of the legal representatives of respondent No. 1 in the said appeal by setting aside the abatement and condoning the delay. 2. Facts necessary for disposal of this appeal are as under:- One Subodhabala Sadangi as the plaintiff had filed Title Suit No. 1103 of 2001 (T.S. No. 452 of 1994) in the Court of Civil Judge (Jr. Division), Balasore for declaration of right, title and interest over the suit land and issuance of permanent injunction against the appellants. These appellants being the defendant did neither file the written statement nor came forward to contest the suit at the time of hearing. So finally the suit was decreed ex-parte by judgment dated 29-10-2005 followed by the decree granting the relief to the plaintiff as prayed for. 3. The defendants without taking recourse to the provision of Order 9, Rule 13 of the Code of Civil Procedure, called in question the said ex-parte judgment and decree on merit by filing an appeal under Section 96(2) of the Code. During pendency of the appeal, on 17-10-2004, respondent No. 1 therein who was the plaintiff in the trial Court died. The learned counsel for the respondent on 10-1-2005 tiled a memo intimating the Court as also the appellant about said death of respondent No. 1. On 7-4-2005 a memo was filed by the appellant to delete the name of the respondent No. 1 plaintiff as she has dead leaving no legal representatives for the right to sue to survive. When the matter stood thus, the appellants again filed the petitions for substitution of legal representatives of respondent No. 1 by setting aside the abatement and condoning the delay stating that they could know about it by making further enquiry that the children of the respondent No. 1’s brother are standing as legal representatives of respondent No. 1 and the right to sue to be surviving against them. The lower appellate court refused to condone the delay and set aside the abatement on the ground that no such sufficient cause was shown for the purpose as to why no timely step was taken in the matter of substitution and consequently the prayer for substitution of legal representatives of respondent No. 1 also stood rejected. The appeal thus abated against the respondent No. 1. In view of the fact that the said respondent No. 1 was sole plaintiff in whose favour the decree had been passed the appeal was held to have abated as a whole. 4. The principles covering subject are too well known that in such matter, the approach of the court should not be pedantic and should be in the direction of advancement of substantial justice to decide the lis on merit instead of closing it on the ground of technicality. However, it is said that when the delay is for too long a period, the court should give due consideration to the fact that by such inaction on the part of a party for long, the legal representatives of deceased party in whose favour a valuable right has already accrued be not taken away by casually and lightly finding that there was prevention for the same due to sufficient cause. The party so applying must satisfy the court about such existence of sufficient cause standing to reasons and acceptance. 5. In a suit or appeal, the period of substitution of the legal representatives of a party who dies during the proceeding is 90 days. And on expiry of 90 days, the suit or appeal automatically abates against the said deceased-respondent, and for that no specific order is required to be passed. Taking into consideration that the party may not be able to know about said factum of death, further period of 90 days is given to the party to apply for setting aside the abatement on that score and thereafter for consideration of delay in filing the petition for setting aside the abatement, the provision of section 5 of the Limitation Act may be adhered to. However, in these matters the party applying for setting aside the abatement by condoning the delay is required to show that he was prevented by sufficient cause during the period for not taking timely step. 6. However, in these matters the party applying for setting aside the abatement by condoning the delay is required to show that he was prevented by sufficient cause during the period for not taking timely step. 6. Considering the totality of the facts and circumstances of this case and keeping in view the settled principles of law, this Court is led to hold that in the fact situation particularly when the respondent No. 1 was not survived by her own son and daughter but her brother’s sons who are coming to stand as legal representatives which is not so easily to be known to others, the lower appellate court should have held that as the sufficient cause for the delay and ought not to have rejected the petition for condonation of delay and refused to set aside the abatement of appeal against respondent No. 1 so as to permit the appellants to bring her legal representatives against whom the light to sue survive for the appeal to proceed further for its disposal on merit and in accordance with law. The earlier memo under the circumstance ought to have been taken as of no significance which instead has been seriously viewed is saying against the existence of sufficient cause. The substantial question of law thus stands answered in favour of the appellant. 7. For the aforesaid, the order passed by learned Ad hoc Addl. District Judge, Balasore impugned in this appeal is hereby set aside and the appeal is remitted to the Court of District Judge, Balasore for carrying out the substitution of the legal representatives of deceased respondent No. 1 so as to bring them on record as respondents, for disposal of the said appeal on merit and in accordance with law upon hearing the parties further keeping in mind that the appeal being one under Section 96 (2) of the Code, its consideration and disposal has to remain within the said scope and ambit that the appellate Court in that situation is not permitted to examine the sufficiency of cause for non-appearance of the defendants on the date of hearing and can however examine the correctness of the ex-parte judgment on the basis of the materials available on record and also if there remains any error, defect or irregularity which affected the decision of the suit. The suit being of the year 2003, in order to arrest the delay, the parties are directed to appeal in the Court of District Judge on 9-4-2016 to receive further instruction and the learned District Judge is directed to dispose of the appeal within two months computed therefrom. 8. The appeal is accordingly allowed. No order as to cost. Appeal allowed.