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2018 DIGILAW 1216 (KAR)

Dhareppa v. Shankar

2018-12-17

B.A.PATIL

body2018
ORDER : B.A. PATIL, J. 1. These two appeals arise out of the common judgment and decree. 2. IA-1/2017 to IA-6/2017 have been filed in both the appeals and as such, they have been taken up together for disposal. 3. IA-1/2017 has been filed by the learned counsel for the appellant under Section 5 of the Limitation Act to condone the delay of 3156 days in filing the application for bringing the LRs of deceased respondent No. 2. IA-2/2017 has been filed under Order XXII Rule IX CPC to set aside the abatement in so far as respondent No. 3 is concerned. IA-3/2017 is filed under Order XXII Rule 4 CPC to bring the LRs of deceased respondent No. 2 as 2(a) and 2(b). IA-4/2017 has been filed under Section 5 of the Limitation Act to condone the delay of 2926 days in filing the application to bring the legal heirs of deceased respondent No. 3. IA-5/2017 has been filed under Order XXII Rule 9 CPC to set aside the abatement in respect of respondent No. 2 and IA No. 6 has been filed under Order XXII Rule 4 CPC to bring the legal representatives of deceased respondent No. 3 as R-3(a) and R-3(b). 4. I have heard the learned counsels appearing for the parties. 5. It is the contention of Sri M.G. Naganuri, learned counsel appearing for the appellant that respondent No. 2 expired on 15.09.2008 leaving behind his wife and son and respondent No. 3 died on 3.05.2009 leaving behind her son and daughter. He further submitted that there is a delay of 3156 days in bringing the legal representatives of respondent No. 2 on record and there is a delay of 2926 days in bringing the legal representatives of deceased respondent No. 3 on record. It is his further submission that when the matter was pending before the principal bench, compromise talks were going on in order to facilitate the parties to compromise the matter and hence, he could not file the applications. It is his further submission that the applicant is the resident of Terdal village and was aged about 71 years and was suffering from old age ailments and was unable to instruct his advocate to file the applications to bring the legal representatives on record within the stipulated time. It is his further submission that the applicant is the resident of Terdal village and was aged about 71 years and was suffering from old age ailments and was unable to instruct his advocate to file the applications to bring the legal representatives on record within the stipulated time. It is further submitted that the delay is a bonafide mistake without there being any intention or to protract the proceedings. On these grounds, he prayed to allow the applications by condoning the delay. It is his further submission that respondent No. 1/Parasappa was also the legal representative of the deceased respondents 2 and 3 and he was already on record and as per the doctrine of sufficient representation, he represented effectively the said respondents. As such, there is no question of abatement of the said case. He further submitted that while condoning the delay, the Court has to apply the rational principles to do substantial justice. By relying upon the decision in the case of BANWARILAL (DEAD) BY LEGAL REPRESENTATIVES AND ANOTHER VS. BALBIR SINGH reported in ( 2016 (1) SCC 607 ), he submitted that the provisions of Order XXII CPC Rules 3, 4, 9 and 11 are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. He further submitted that the Rules of procedure are hand made of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. By relying upon the decision of the Hon'ble Apex Court in the case of SARDAR AMARJIT SINGH KALRA (DEAD) BY LRS AND OTHERS VS. PRAMOD GUPTA (SMT). (DEAD) BY LRS AND OTHERS reported in (2003) 3 SCC 272 ) he submitted that the laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. He further submitted that Order XXII is not to be construed rigidly and have to be viewed flexible as a tool of convenience in the administration of justice. By relying upon the decision in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS. He further submitted that Order XXII is not to be construed rigidly and have to be viewed flexible as a tool of convenience in the administration of justice. By relying upon the decision in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS. MASTER KATIJI AND OTHERS reported in ( 1987 (2) SCC 107 ) he further submitted that there must be liberal approach while condoning the delay and sufficient cause should not be interpreted in a strict manner with water tight compartments. It is further submitted that while condoning the delay, substantial justice has to be kept in view and the case should not be dismissed at the threshold on technical grounds and as far as possible the matter should be heard and decided on merits. On these grounds he prayed to allow the said applications. 6. Per contra, Sri Ashok R. Kalyanshetty, learned counsel for the respondents vehemently contended and submitted that death was reported on 25.07.2014 and Court passed an order to bring the legal representatives on record and even in spite of that the legal representatives were not brought on record. Subsequently, this Court by order dated 10.02.2015 observed that time granted for bringing the legal representatives has expired and appeals as against them stands abated. When the appeal against respondents 2 and 3 has been abated, the entire appeal is abated since the judgment and decree passed by the trial Court is confirmed in respect of those two deceased persons for having not brought the legal representatives of respondents 2 and 3 in time on record. He further submitted that more than 1½ years have lapsed after the Court accommodated the appellant for bringing the legal representatives of deceased respondents 2 and 3 on record and deliberately only with an intention to drag on the proceedings he has not filed appropriate applications. It is further submitted that it is not the case of the applicants that they were ignorant about the death. The said fact was brought to the notice of the appellant on 25.07.2014 and sufficient time was granted in spite of the said aspect without there being any bonafides and without showing any sufficient cause, the applications have been filed to bring the legal representatives of deceased respondents 2 and 3. The said fact was brought to the notice of the appellant on 25.07.2014 and sufficient time was granted in spite of the said aspect without there being any bonafides and without showing any sufficient cause, the applications have been filed to bring the legal representatives of deceased respondents 2 and 3. He further by referring to Order XXII Rule 4 (5) (b) CPC submitted that for setting aside the abatement the applicant must show sufficient cause for not making the application within the period specified in the said Act. While considering the application, the Court has to have due regard to the fact of such ignorance if proved, then only the same can be condoned and abatement can be set aside. He further submitted that in the applications filed, except stating that he was aged about 71 years and because of his old age ailments, he could not contact his advocate to file such applications, the said cause is not sufficient cause either to condone the delay or to set aside the abatement. On these grounds, he prayed to dismiss the applications filed by the appellant. 7. I have carefully and cautiously gone through the submissions made by the parties and I have also gone through the records and the decisions quoted by the learned counsel for the appellant. 8. In R.S.A. No. 2245/2005, IA No. 1/2017 has been filed for condonation of delay of 3156 days in bringing the legal representatives of deceased respondent No. 2 on record and IA No. 4/2017 has been filed for condonation of delay of 2926 days in bringing the legal representatives of respondent No. 3 on record. I am conscious of the fact that whenever an application for condonation of delay has been filed, then under such circumstances the applicant has to explain the delay with sufficient cause. The moot question which has to be considered by the Court is what is the standard applicable to know the sufficient cause test and whether each day's delay has to be explained with sufficient cause or the delay has to be explained in a rational manner. 9. In catena of decisions this Court as well as the Hon'ble Apex Court have consistently held that the Court should adopt a liberal and justice oriented approach while considering the application under Section 5 of the Limitation Act. 9. In catena of decisions this Court as well as the Hon'ble Apex Court have consistently held that the Court should adopt a liberal and justice oriented approach while considering the application under Section 5 of the Limitation Act. This proposition of law has also been laid down by the Hon'ble Apex Court in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG, stated supra wherein at paragraph No. 3 it has been observed as under: "3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant 1. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in mew to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides." 10. It is also well settled principles of law that while considering the application under Section 5 of the Limitation Act, and the spirit and philosophy of the provision in the course of interpretation of the expression of 'sufficient cause' it has been interpreted that at the very threshold only on the basis of limitation the cause of justice should not be defeated. When the Court is intended to do substantial justice then under such circumstances the technical consideration are to be kept aside and as far as possible the Court should decide the matters on merits unless it is hopelessly without any merits. This proposition of law has been laid down by this Court in the case of the STATE OF KARNATAKA REPRESENTED BY REVENUE SECRETARY VS. H.B. MUNIVENKATAPPA reported in ILR 2007 KAR 1893. When that is the spirit with which Section 5 of the Limitation Act has been interpreted and even it has been observed that the Court should adopt a liberal and justice oriented approach, then under such circumstances that at the threshold only on technical grounds the application cannot be dismissed. Appellants have also filed IA Nos. 2/2017 and 5/2017 for setting aside the abatement No doubt, as could be seen from Order XXII Rule 4 (5) (b), that therein the said provision mandates that sufficient cause has to be given for considering the application and the Court has to give due regards to the facts of such ignorance. If the said interpretation is taken in its strict sense, then under such circumstances substantial justice cannot be done. It is the rule of procedure and substantial right of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. This proposition of law has been laid down by the Hon'ble Apex Court in the case of BANWARI LAL's case quoted supra whereunder at paragraph 9 it has been observed as under: "9. This proposition of law has been laid down by the Hon'ble Apex Court in the case of BANWARI LAL's case quoted supra whereunder at paragraph 9 it has been observed as under: "9. Provisions of Order 22 CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra V. Pramod Gupta, a five-Judge Bench of this Court held as under: "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice." 11. It is also further observed that the procedure of law are handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. When that is the letter and spirit of interpretation, then under such circumstances strict adherence to the said provision cannot be made. It is also made it clear by the Hon'ble Apex Court in the case of SARDAR AMARJIT SINGH'S case quoted supra at paragraph 26 wherein it has been observed as under: "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice." 12. On going through the above said paragraphs, while interpreting Order XXII, it has been observed that provisions contained in Order XXII are not to be construed as a rigid matter of principle but must ever be viewed as flexible tool of convenience in the administration of justice. Keeping in view the above interpretation, if we go through Order XXII Rule 9 CPC therein a provision has been made for setting aside the abatement caused in bringing the legal representatives on record. Under the said provision also, he has to explain that he was prevented by any sufficient cause from continuing the suit and if it is satisfied then under such circumstances the Court shall set aside the abatement caused in bringing the legal representatives on record. Under the said provision also, he has to explain that he was prevented by any sufficient cause from continuing the suit and if it is satisfied then under such circumstances the Court shall set aside the abatement caused in bringing the legal representatives on record. As could be seen from the order of this Court dated 25.07.2014, therein it has been observed after hearing the arguments for some time, the Court felt that it is a fit case to be compromised and Court suggested the learned counsel for the parties to know as to whether there is any possibility of settlement and on that count, time was granted to report the compromise and to take steps to bring the legal representatives of deceased respondents 2 and 3 on record. 13. It is the specific contention of the appellant/applicant that the compromise talks were going on between the parties and as such, the application was not filed within the stipulated time. Though, it is not stated specifically in the application, but the learned counsel for the appellant/applicant submitted the same and even the records also substantiate his contention. Looking from any angle, I am of the considered opinion that instead of standing too technically on those issues, as held by this Court as well as the Apex Court the case should not be dismissed on technical grounds at threshold and as far as possible it has to be heard and decided on merits to do justice. In that light, I am of the opinion that if the applications are allowed and if the legal representatives of deceased/respondents 2 and 3 are brought on record and if the matter is heard and decided on merits, it would meet the ends of justice. 14. In the light of the discussion held by me above, IAs-1/2017, 2/2017, 3/2017, 4/2017, 5/2017 and 6/2017 are allowed and the delay in filing the applications for bringing the legal representatives of deceased respondents 2 and 3 on record is condoned, abatement is set aside and the appellant is permitted to bring the legal representatives of deceased respondents 2 and 3 on record and file amended appeal memos in both the appeals.