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2023 DIGILAW 643 (PAT)

Sheo Tahal Tanti v. Bikas Kumar Keshari

2023-06-20

KHATIM REZA

body2023
ORDER Re:-I.A. No. 02 of 2020 This interlocutory application has been filed under Order XXII Rule-3, 4, 9 and 10(a) & Section 151 of the Code of Civil Procedure on 27.02.2020 for substituting the name of the heirs of deceased-appellants and deceased-respondents whose details are given in this application and also for setting aside the abatement and condonation of delay in filing the setting aside abatement by filing I.A. No. 03 of 2020, which has been filed under Section 5 of the Limitation Act. 2. It is submitted that Appellant No. 1g, namely, Most. Makhia Devi died in the year, 2001 leaving behind her three sons namely, Sheo Tahal Tanti, Baldeo Tanti and Ganesh Tanti and three daughters, namely, Rampari Devi, Maina Devi and Chinma Devi. The heirs of deceased-appellant no. 1g are already on the record as appellant No. 1a, 1b, 1c, 1d, 1e and 1f respectively and, therefore, her name may be deleted from the memo of appeal. 3. It is further stated that Appellant No. 2, namely, Most. Rohani Devi also died in the year, 2001, leaving behind her three sons, namely, Bharosi Tanti, Ramdhani Tanti and Brahmdeo Tanti, who are already on record as appellant Nos. 3, 4 and 5 and, therefore, her name may also be deleted from the memo of appeal. 4. It is further stated that appellant No. 07, namely, Most. Balya @ Most Balia Devi died issueless in the year, 2007 and Appellant No.8, namely, Most. Manakwa Devi @ Mosomat Manaky Devi died in the year 2005 leaving behind her sole heir namely, Babulal Tanti, therefore, the names of the deceased appellant nos. 7 & 8 may be deleted from the memo of appeal and the sole heir of Most. Manakwa Devi @ Mosomat Manaky Devi be substituted. 5. It is further stated that appellant No. 09, namely, Meghan Tanti died in the year 2009 leaving behind his two sons, namely, Naresh Tanti and Botal Tanti. Therefore, the name of the appellant no. 09 be deleted from the memo of appeal and the name of the heirs of appellant no. 09 be substituted in his place. 6. It is further stated that appellant No. 10, namely, Ramchandra Tanti died issueless in the year 2011, therefore, his name be deleted from the memo of appeal. 7. Therefore, the name of the appellant no. 09 be deleted from the memo of appeal and the name of the heirs of appellant no. 09 be substituted in his place. 6. It is further stated that appellant No. 10, namely, Ramchandra Tanti died issueless in the year 2011, therefore, his name be deleted from the memo of appeal. 7. It is stated that appellant No.11, namely, Smt. Kalbatya Devi went to Haryana in the year, 2006, and the deponent came to know that she has died there issueless in January 2020, therefore, her name may be deleted from the memo of appeal. 8. It is further stated that the deponent learnt from neighbours of respondent 1st party that respondent No. 1g namely, Hiralal Sao, respondent No. 1h namely, Ahilya Devi, respondent No.3 namely, Salendra Kumar Sao, respondent No.5 namely, Bilayati Devi and respondent No.7 namely, Smt. Keshari Devi have died during the pendency of this appeal. The aforesaid deceased respondents are close relatives of respondent No. 1a to 1f, 1i, 1j, 2(a) to 2 (e) and respondent No.4. It is further submitted that the deponent had gone to Sikandra Bazar on 12.01.2020 and met with the aforesaid relatives and enquired about the date of death and legal heirs of respondent No. 1g, 1h, 3, 5 and 7 but they refused to give the details regarding them. 9. In the aforesaid facts and circumstances, learned counsel appearing on behalf of the respondent 1st set may be directed to supply their date of deaths and names of their heirs with address. 10. It is further stated that respondent No.8, namely, Bhukhan Gope had died in the year 2014 leaving behind his sole son Ramdhani Gope but he refused to give date of death of his father, therefore, his name may be deleted and his heirs may be substituted in his place. 11. It is further stated that respondent No.10 namely, Garib Yadav had died in the year 2008 leaving behind his two sons, namely, Ganesh Yadav and Mahesh Yadav. Sri Ganesh Yadav refused to give date of death of his father and, therefore, his name may be deleted from the memo of appeal and the name of his heirs be substituted in his place. 12. It is further mentioned that respondent No. 13, namely, Ramrup Gope had died in the year 2014 leaving behind his sole son Bharat Yadav. Sri Ganesh Yadav refused to give date of death of his father and, therefore, his name may be deleted from the memo of appeal and the name of his heirs be substituted in his place. 12. It is further mentioned that respondent No. 13, namely, Ramrup Gope had died in the year 2014 leaving behind his sole son Bharat Yadav. Bharat Yadav refused to give date of death of his father and, therefore, his name may be deleted from the memo of appeal and his heirs be substituted in his place. 13. It is further stated that respondent No. 14, namely, Munshi Gope had died in the year 2012 leaving behind his three grandsons namely Adhik Yadav, Shankar Yadav and Pintu Yadav. Sole son of the deceased respondent No. 14, Tilkeshwar Yadav, is also dead and his heirs are aforesaid three grandsons of Munshi Ghop. Therefore, name of deceased-respondent no. 14 be deleted from the records and his grandsons be substituted in his place. 14. It is further stated that respondent No.15(a), namely, Munna Devi had died in the year 2016 leaving behind her three sons namely Matlu Sao, Shiv Sao and Talo Sao but Matlu Sao refused to give date of death of her mother Munna Devi and prayed that her name may be deleted and the name of heirs of respondent no. 15a be substituted in her place. 15. It is further stated that respondent No.16 namely, Mahabir Sao died in the year 2013 leaving behind his two sons namely Arjun Sao and Bhuto Sao. Bhuto Sao refused to give date of death of his father Mahabir Sao, therefore his name may be deleted from the memo of appeal and heirs of respondent No. 16 be substituted in his place. Re. I.A.No. 03 of 2020 16. Bhuto Sao refused to give date of death of his father Mahabir Sao, therefore his name may be deleted from the memo of appeal and heirs of respondent No. 16 be substituted in his place. Re. I.A.No. 03 of 2020 16. This interlocutory application has been filed for setting aside abatement and condoning delay of 15 years in case of substitution of appellant No.8, delay of 11 years in the case of substitution of appellant No.9, delay of six years in case of substitution of respondent No.8, delay of twelve years in case of substitution of respondent No.10, delay of six years in case of substitution of respondent No. 13, delay of eight years in case of substitution of respondent No. 14, delay of for years in case of substitution of respondent No.15a and delay of seven years in case of substitution of respondent No.16. 17. Learned counsel for the appellant submitted that appellant No.1 Saudagar Tanti was Pairvikar of the instant appeal and after his death his grandson Surendra Tanti and his son Baldeo Tanti [appellant No. 1(b)] and Bharosi Tanti (appellant No. 3) made pairvi in the case for substitution of appellant No.1 and 6; respondent nos. 1, 2, 6, 12 and 15 and thereafter Surendra Tanti, Baldeo Tanti and appellant no. 3 went to Punjab for eking out their livelihood, and other remaining appellant are illiterate, and rustic and they did not know about the instant case properly and they did not make pairvi as required under law. 18. Learned counsel for the appellant further submitted that the deponent lived in chanch (Jharkhand) along with his son Ashok Tanti, who is eking out his livelihood there and he got information from his other family members who lived in village-Kirparamdih. It is also submitted that a letter has come on 6th January 2020 from Patna stating there in that second appeal bearing No. 438/1989 is to be listed for final hearing, thereafter he came back to his native village Kirparamdih on 09.01.2020 and met his counsel Bharat Lal, Advocate on 10.1.2020 and his counsel instructed him to collect information regarding dead appellants and dead respondents of the memo of appeal. Soon thereafter, the deponent came back to his native village Kirparamdih and on 12.01.2020, he went to Sikandra Bazar and learnt from neighbours of respondent 1st set that respondent No. 1g Hiralal Sao, respondent No. 1h Ahilya Devi, respondent No.3 Sailendra Kumar Sao, respondent No. 5 Bilayati Devi and respondent No.7 Smt. Keshari Devi have died but they were not in position to point out their date of death and name of their legal heirs. Thereafter on the same day he went to their relatives (respondents 1st set) and asked from them the date of death and legal heirs of respondent No.1g, 1h, 3, 5 and 7 but they refused to supply their date of death and name of their legal representatives. 19. Learned counsel for the appellant further submitted that deponent is of advance age, aged about 73 years who also suffered from cold and cough on 13.01.2020 remained confined to bed for 45 days and got treated by the village doctor and got fully cured on 21.02.2020. Learned counsel further submitted that all the heirs of appellants are not in a position to disclose the actual date of death of their father/mother is that’s why the deponent is unable to state the date of deaths of the deceased appellants and also prayed for condoning the delay and setting aside abatement. 20. On the other hand, respondents 1st set filed their counter affidavit and opposed the prayer for substitution of heirs of deceased appellants as well as the respondents and also condoning the delay up to 19 years in filing the substitution petition for substituting the heirs and legal representatives of the deceased appellants. Learned counsel for the respondents 1st set submitted that deponent is the son of appellant no. 1 and close relatives of the above mentioned appellants. Despite this fact, he has not taken any steps for substitution of heirs of the above mentioned appellants within statutory period of limitation. It is also submitted that in their application the date of death of all these appellants are not mentioned/provided. So, the actual delay in number of days and years cannot be calculated. The prayer for condoning the delay of specific period is not maintainable and is fit to be rejected. 21. Learned counsel for the respondent 1st set further submitted that the deponent is the son of appellant no. So, the actual delay in number of days and years cannot be calculated. The prayer for condoning the delay of specific period is not maintainable and is fit to be rejected. 21. Learned counsel for the respondent 1st set further submitted that the deponent is the son of appellant no. 1(g) having full knowledge about the death of her mother and also he is close relative of all the deceased appellants but he has filed the petition for substitution after a delay of about 19 years, which is an example of deliberate laches and negligence without any genuine explanation in this regard. Learned counsel for the respondents (1st set) relied upon a decision of Supreme Court in case of Shanti Devi and Others vs. Kaushalya Devi reported in (2016) 16 SCC 565 it is held that:— “….when the respondent daughter of the deceased had full knowledge of death of her father and also of the litigation pending before the First appellate court. Delay cannot be condoned on insufficient grounds and by abusing the process of the law”. 22. Learned counsel for the respondents (1st set) raised objection with regard to effect on substitution of heirs and legal representatives of the deceased. In this regard reference is made in paragraph 2 of I.A. No. 02 of 2020 wherein, deponent has stated that the appellant no. 1g (Most. Makhia Devi) died in the year 2001 leaving behind three sons and three daughters who are already on record as 1a, 1b, 1c, 1d, 1e and 1f and therefore, her name may be deleted from the memo of appeal. Learned counsel further submitted that deponent has cunningly suppressed the fact that his own brother late Baldev Tanti has died leaving behind her wife, two sons and one daughter namely Bipin Tanti, Kamlesh Tanti and Mangli Devi and no steps and prayer has been made in this application for bringing her heirs on record. It appears that the conduct of the deponent is malafide and cunningly he has suppressed the name of daughter namely, Parmeshwari Devi (appellant no. 6), who is the cousin of the deponent, who has already died and no steps and prayer has been made in this application for bringing her legal heirs. Likewise, deponent has stated that appellant no. It appears that the conduct of the deponent is malafide and cunningly he has suppressed the name of daughter namely, Parmeshwari Devi (appellant no. 6), who is the cousin of the deponent, who has already died and no steps and prayer has been made in this application for bringing her legal heirs. Likewise, deponent has stated that appellant no. 8 namely, Manakwa Devi @ Manaky Devi, who is the aunt of the deponent, has died in the year 2005 leaving behind her sole heir Babulal Tanti, whereas, the deponent has cunningly suppressed the fact that the appellant no. 8 has 3 more daughters namely Mundrika Devi, Suma Devi and Garvi Devi. 23. Learned counsel for the respondent (1st set) submitted that these three daughters are first cousin of the deponent but intentionally he has suppressed this fact and made false statement on oath before this Court. The deponent also made false statement on affidavit that appellant no. 11 namely, Smt. Kalbatya Devi died issueless in the year 2006, whereas, the fact is that she has one daughter, namely, Mina Devi, who is also first cousin of the deponent but intentionally he has suppressed this fact and made false statement on affidavit. 24. Learned counsel also relied upon a decision in case of Rameshwar Prasad and Ors vs. Shambehari Lal Jagannath and Ors reported in AIR 1963 SC 1901 . Learned counsel has placed reliance on paragraph 18 which reads as follows:— “18. When the legal representatives of the deceased appellant and the surviving appellants where negligent in not taking steps for substitution, the court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate court and another to the contrary effect by the court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This is always avoided” 25. Learned counsel further submitted that the deponent (Appellant no. 1a) has deliberately and knowingly suppressed the details of the heirs and legal representatives of the deceased appellants with ulterior motive. This is always avoided” 25. Learned counsel further submitted that the deponent (Appellant no. 1a) has deliberately and knowingly suppressed the details of the heirs and legal representatives of the deceased appellants with ulterior motive. The deponent is not providing the date of death even of his mother Most. Makhia Devi (Appellant no. 1g) and also not providing the details of legal heirs of his own brother Baldeo Tanti (Appellant no. 1b) along with other deceased appellants which is a clear example of suppression of facts and providing false and misleading information before this Court. It is further submitted that Hon'ble Supreme Court in case of K.D. Sharma vs. SAIL reported in 2008 (12) Supreme Court Cases 481 has held as under:— "Where the petitioner makes false statement or conceals material facts or misleads the Court, in such a case the court may dismiss the petition at the threshold without considering the merits of the claim". 26. It is submitted that deponent has suppressed the details of the heirs and legal representatives of the deceased Appellant no. 1(b), namely, Baldeo Tanti, Appellant no. 6, namely, Parmeshwari Devi, Appellant no. 11, namely, Kalbatya Devi and the Appellant no. 8, namely, Manakwa Devi. The deponent has prayed only for expunging the name of the aforesaid deceased appellants, otherwise, in case of substitution of all the heirs, the delay of 19 years will create a lot of hurdle. 27. Learned counsel for the respondent 1st set relied upon the decision in case of Sudama Rai vs. Bhagrashan Rai reported in 2016 (1) PLJR 346 , wherein this Court has held that:— “Where there is not a case of no knowledge of death – explanation given that appellant not aware of the death legal procedures, appears to be only fanciful and made with a view to gain sympathy from the court as his sons are on record as appellants. Incorrect statements itself is sufficient to reject the application. Substitution application rejected and appeal abated against the deceased respondent. Further the whole appeal has become incompetent due to dismissal of substitution application”. 28. It is further submitted that the deponent has neither provided date of death of the respondents nor made any prayer for substitution of legal heirs of the deceased respondents. It is submitted that in the aforesaid facts and circumstances, the appeal is now incompetent. Further the whole appeal has become incompetent due to dismissal of substitution application”. 28. It is further submitted that the deponent has neither provided date of death of the respondents nor made any prayer for substitution of legal heirs of the deceased respondents. It is submitted that in the aforesaid facts and circumstances, the appeal is now incompetent. The Division Bench of this court in case of Mahabir Mistry & Ors vs. Smt. Lachhmini Devi & Ors reported in AIR 1975 Patna 279 has held in paragraphs 15 & 16, which reads as under:— “15. The question in most of these cases was whether the whole appeal had abated in view of its abatement in respect of some of the respondents, and, as I have said earlier, the question before us is not whether the appeal has ‘abated’ as a whole, but the question is whether the appeal is now competent and can be heard in view of the existence of a decree already enuring to the benefit of defendants-respondents 26 to 28. It will not, therefore, be necessary to refer to these cases at any length. 16. ...there is a likelihood of a decree being passed which would be in conflict with the decree already passed in favour of respondents 26 to 28 and this being not open to us to do, the present appeal must be held to be incompetent.” 29. Learned counsel for the contesting respondents have submitted that there is a huge delay up to 19 years in filing of the substitution petition and setting aside abatement with no plausible justification and explanation and all the heirs of the deceased appellants were not on the record and therefore, the right of appeal did not survive against the surviving respondents alone but also against the persons other than those who were already on record. 30. The present Second Appeal has been filed against the judgment and decree dated 24.06.1989 passed in Title Appeal No. 4 & 10 of 1984/07 of 1988 by the learned Sub Judge II, Jamui, modifying the judgment and decree of trial court dated 08.02.1984 passed by Munsif, Jamui in Title Suit No. 81 of 1970 (72 of 1975) for redemption of property mortgaged for Rs. 275/- (Two Hundred Seventy Five) only. The ancestors of the plaintiffs are mortgagor and ancestors of defendant (1st set) is mortgagee. 275/- (Two Hundred Seventy Five) only. The ancestors of the plaintiffs are mortgagor and ancestors of defendant (1st set) is mortgagee. The said mortgage deed was registered on 23.08.1929. 31. The instant I.A. No. 02 of 2020 has been under Order XXII Rule-3, 4, 9 and 10(a) & Section 151 of the Code of Civil Procedure for substitution/deletion of appellant no. 1g, appellant no. 2, appellant no. 7, appellant no. 8, appellant no. 9, appellant no. 10 and appellant no. 11 and also for respondent 1st set to supply the date of death and heirs of deceased respondent no. 1g, 1h, 3, 5 and 7. 32. Firstly, substitution of deceased appellants who died during the pendency of this Second Appeal is being dealt herewith. Appellant no. 1(g), Most. Makhia Devi, is said to have died in the year 2001 leaving behind her three sons, namely, Sheo Tahal Tanti, Baldeo Tanti and Ganesh Tanti and three daughters, namely, Rampari Devi, Maina Devi and Chinma Devi, who are already on record as appellant nos. 1a, 1b, 1c, 1d, 1e and 1f but the learned counsel for the respondents opposed the said submission and stated that appellant no. 1(g) had one more son, namely, Baldeo Tanti, who also died leaving behind her wife, two sons and one daughter namely Bipin Tanti, Kamlesh Tanti (Sons) and Mangli Devi (Daughter) and no steps and prayer has been made for bringing the heirs of Baldev Tanti on record. 33. So far Appellant No. 2, namely, Most. Rohani Devi, who also died in the year, 2001 leaving behind her three sons namely Bharosi Tanti, Ramdhani Tanti and Brahmdeo Tanti, who are already on record as appellant nos. 3, 4 and 5 is concerned, learned counsel for the respondents have raised objection with regard to not mentioning the name of one daughter, namely, Parmeshwari Devi (Appellant no. 6), who is the cousin of the deponent, has already died and no steps has been taken for bringing her legal heirs on record. Likewise, substitution of Appellant No. 8 namely, Most. Manakwa Devi @ Mosomat Manaky Devi, who is the aunt of the deponent, has died in the year 2005, leaving behind her sole heir namely, Babulal Tanti. The said fact is also denied by the respondents and submitted that appellant no. Likewise, substitution of Appellant No. 8 namely, Most. Manakwa Devi @ Mosomat Manaky Devi, who is the aunt of the deponent, has died in the year 2005, leaving behind her sole heir namely, Babulal Tanti. The said fact is also denied by the respondents and submitted that appellant no. 8 has three more daughters namely Mandrika Devi, Suma Devi and Garvi Devi, and the appellants have suppressed the name of the daughters of appellant no. 8. 34. So far Appellant No.11, namely, Smt. Kalbatya Devi, who died issueless in the year 2006 is concerned, the learned counsel for the respondents denied the fact and substituted that appellant no. 11 has one daughter namely, Mina Devi and also submitted that the said Mina Devi is the cousin of deponent and intentionally he has suppressed this fact and made false statement on affidavit before this court. This fact has not been controverted by the appellants. 35. Admittedly, all the heirs of deceased appellants were not taken for substitution. In the aforesaid facts, it is apparent that there is no substitution petition on the record for appellant no. 11, while she had a daughter namely, Mina Devi R/o Gidhi Magrar, P.S.- Laxmipur, District- Jamui. 36. So far other deceased appellants are concerned, as per the respondents, some heirs are left out. It is well settled that if some of the legal representative are already on record the suit/appeal can not abate. In a full Bench decision of this Court in the case of Jagarnath Singh vs. Srimati Singhashan Kuer and others reported in 1984 PLJR 217 , it is held that:— “From the discussions of the several Supreme Court decisions made above, it emerges that when one or more heirs of the deceased defendant or respondent are on record, then the estate in fully represented in the suit or the appeal, as the case may be, and the suit or the appeal will not abate for not bringing on record the other left out side”. 37. Reference was made in case of Delhi Development Authority vs. Diwan Chand Anand and others reported in (2022) 10 SCC 428 which reads as under:— “The difficulty arises always when there is a joint decree. 37. Reference was made in case of Delhi Development Authority vs. Diwan Chand Anand and others reported in (2022) 10 SCC 428 which reads as under:— “The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondent whose rights in the subject matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can suitably dealt with by the appellate court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot taken. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot taken. After referring to the decision of this Court in the case of Nathu Ram Vennigalla Koteswaramma vs. Malampati Suryamba it is observed by this Court in Venigalla Koteshwaramma case that the nature and extent of the abatement in a given case and the decision to be taken thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately depend upon the fact whether the decree obtained was a joint decree or a separate one. It is further observed that this question cannot and should not also be tested merely on the format of the decree under challenge of it being one or the manner in which it was dealt with before or by the Court which passed it”. 38. As discussed aforesaid, the suit is for redemption of mortgage which was decreed in part against the contesting defendants and ex-parte against non-contesting defendants which was dismissed in appeal and cross appeal was allowed. 39. Before deciding the issue of abatement, it is necessary to refer to the relevant provisions of Order XXII of the Code of Civil Procedure and their scope. Order XXII, Rule 11 of the Code of Civil Procedure provides that in an application of Order XXII to appeal so far as may be, the word ‘plaintiff’, shall be held to include an appellant, the word ‘defendant’ a respondent, and the word ‘suit’ an appeal. 40. Rule 1 of the Order XXII provides that the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. 41. Rule 3 of the Order XXII prescribes the procedure in case of death of a plaintiff/appellant. 40. Rule 1 of the Order XXII provides that the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. 41. Rule 3 of the Order XXII prescribes the procedure in case of death of a plaintiff/appellant. Sub-rule (1) of Rule 3 provides that where a plaintiff/appellant dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Sub-rule (2) of the Rule 3 provides that where no application is made to cause the legal representative of the deceased plaintiff/appellant to make party, the said suit/appeal shall abate in so far as deceased plaintiff/appellant is concerned, and, on an application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of deceased. The word ‘Abate’ in the context of the order XXII of the Code of Civil Procedure means termination of the word ‘appeal’ on account of the death of a party materially interested. 42. Rule 4 of the Order XXII of the Code of Civil Procedure provides the procedure in case of death of a defendant/respondent. Sub-rule (1) of the Rule 4 provides that where a defendant/respondent dies and the right to sue does not survive against the surviving respondent/defendant alone, or a sole defendant/respondent die and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased respondent/defendant to be made a party and shall proceed with the suit/appeal. Sub-rule (3) of the Rule 4 provides that where no application is made to cause the legal representative of the deceased of the deceased/respondent to be made party, the appeal shall abate as against the deceased/defendant/ respondent. Sub-rule (5) of the Rule 4 now gives a clear indication as to what will be sufficient cause. Sub-rule (3) of the Rule 4 provides that where no application is made to cause the legal representative of the deceased of the deceased/respondent to be made party, the appeal shall abate as against the deceased/defendant/ respondent. Sub-rule (5) of the Rule 4 now gives a clear indication as to what will be sufficient cause. It provides that where the appellant was ignorant of the death of a respondent, and for that reason, could not make an application for the substitution of legal representative of the deceased-respondent under Rule 4 within the time specified in the Limitation Act, 1963, and in consequence, the appeal has abated and the appellant applies after the expiry of the period specified in Limitation Act, for setting aside the abatement and also for the admission of that application under Section 5 of the Limitation Act, on the ground that he had, by reasons of such ignorance, sufficient cause for not making the application within the period specified in the said Act. The Court shall, in considering the application under Section 5 of the Limitation Act, have due regard to the fact of such ignorance, if proved. 43. Rule 10-A of the Order XXII of the Code of Civil Procedure provides whenever a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party. 44. In view of Rule 3 and 4 of the Order XXII it is clear that when a plaintiff/appellant and defendant/respondent dies and an application to bring his/her legal representative on record is not made, abatement takes place on the expiry of the prescribed period of 90 days by operation of law. 45. On considering, an application under Section 5 of Limitation Act, 1963, has been indicated in several decisions. It may be sufficient to refer a decision of the Hon’ble Supreme Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhargavi Amma (Dead) By Lrs. & others reported in (2008) 8 SCC 321 , wherein Hon’ble Supreme Court has considered the scope of Rule 4 and 9 of Order XXII as has been mentioned in several decisions and especially referred to two of them. & others reported in (2008) 8 SCC 321 , wherein Hon’ble Supreme Court has considered the scope of Rule 4 and 9 of Order XXII as has been mentioned in several decisions and especially referred to two of them. In Shakuntala Devi Jain vs. Kuntal Kumari, reported in AIR 1969 SC 575 reiterated the classic statement from Krishna vs. Chathappan reported in (1890 ILR 13 Mad 269): “…...section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words “sufficient cause” receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant” and in the case of Union of India vs. Ram Charan (deceased) through his Legal Representatives reported in [ AIR 1964 SC 215 ], it has been observed as follows:— “The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined, while if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. It is true, as contended, that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party.” 46. The observations have stood diluted in view of subsequent insertion of Sub-rule 5 in Rule 4 and addition of Rule 10 A in order XXII of the Code of civil Procedure by amendment Act 104 of 1976, requiring: (I) - the Court to take note of the ignorance of death as sufficient cause for condonation of delay, and (II) - the counsel for the deceased party to inform the Court about the death of his client. 47. 47. The Hon’ble Supreme Court in the case of Perumon Bhagvathy Devaswom, Perinadu Village (supra) has summarized the principles applicable in considering the application for setting aside the abatement, which is as follows:— “(i) The word ‘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 bonafides, deliberates 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 application 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 institutions 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 refiling 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. (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.” 48. It is further held that ‘it can safely be concluded that if the following three conditions exists, the Court will usually condone the delay and set aside the abatement (even though the period of delay is considerable and a valuable right might have accrued to the opposite party-LRs of the deceased on account of abatement):— (i) The respondent had died during the period when the appeal had been pending without any hearing dates fixed. (ii) Neither the counsel for the deceased respondent nor the legal representatives of the deceased respondent had reported the death of the respondent to the Court and the Court has not given notice of such death to the appellant. (iii) The appellant avers that he was unaware of the death of the respondent and there is no material to doubt or contradict his claim’ 49. In view of the aforesaid decisions of the Hon’ble Supreme Court and submissions made by the parties, it is apparent that after the death of the original appellant No. 01, Baldeo Tanti (appellant No. 1.b) and Bharosi Tanti (appellant No. 3) were looking after the case and had filed substitution petition of appellant No. 01 and appellant No. 06, respondent Nos. 1 to 6, 12 and 15 and thereafter they went to Punjab to eke out their livelihood and other remaining appellants are illiterate and they did not know about the instant case and were not able to make pairvi as required by law. Moreover, some of the appellants died during the pendency of the instant appeal and their heirs are already on record. 50. So far, appellant No. 1g is concerned, the heirs of her pre-deceased son, Baldeo Tanti have not been made party to the appeal. Moreover, some of the appellants died during the pendency of the instant appeal and their heirs are already on record. 50. So far, appellant No. 1g is concerned, the heirs of her pre-deceased son, Baldeo Tanti have not been made party to the appeal. The heirs of her pre-deceased son are Bipin Tanti, Kamlesh Tanti and Mangli Devi, sons and daughter of Baldeo Tanti (pre-deceased son of appellant No. 1g). Although, her other three sons and three daughters are already on record as appellant No. 1.a, 1.b, 1.c, 1.d, 1.e and 1.f. 51. In the aforesaid facts and circumstances, right to sue survives in presence of other heirs of deceased/appellant No. 1.g. 52. So far appellant No. 2, namely Mostt. Rohini Devi is concerned, she died during the pendency of the appeal and her heirs are already on record as respondent Nos. 3, 4 and 5, whose daughter, namely, Parmeshwari Devi (original appellant No. 6) also died during the pendency of the instant appeal and substitution petition had already been filed and prayed for transposition of her heirs in the category of respondent, which has been allowed on 27.08.1991. 53. So far appellant No. 8, namely Mosst. Manakwa Devi @ Manaky Devi, who died during the pendency of appeal is concerned, the learned counsel for the appellant stated that she died leaving behind her sole heir, namely, Babu Lal Tanti, but learned counsel for the contesting respondent stated that the appellant No. 8 has three more daughters, namely, Mundrika Devi, Suma Devi and Garvi Devi and they have to be made party as daughters of appellant No. 08 as party. 54. In the aforesaid fact and circumstances, appellant is directed to implead these daughter of appellant No. 08 as party. 55. So far appellant No. 11, namely Smt. Kalbatya Devi is concerned, who died issueless during the pendency of the appeal and as per the contesting respondents she has one daughter, whose details are as follows: Mina Devi R/o Gidhi Magrar, P.S.- Laxmipur, District- Jamui, but there is no prayer for substitution of heirs of appellant No. 11. 56. In these circumstances the appeal abates against appellant No. 11. 57. 56. In these circumstances the appeal abates against appellant No. 11. 57. So far death of several respondents as well as the substitution petition with regard to deceased-respondent No. 8, 10, 13, 14, 15(a) and 16 are concerned, the learned counsel for the appellants submitted that their heirs are not ready to supply their actual dates of death and learned counsel for the respondent 1st set may be directed to supply their actual dates of death. It is admitted fact that the counsel for the respondents 1st set did not inform the Court about the death of the respondents Nos. 08, 10, 13, 14 15(a) and 16. 58. As discussed above, a Full Bench of this Court in the case Jagarnath Singh (supra) has held that “....when one or more heirs of the deceased defendant or respondent are on record, then the estate is fully represented in the suit or the appeal, as the case may be, and the suit or the appeal will not abate for not bringing on record the other left out side”. 59. Rule 10-A of the Order XXII of the Code of Civil Procedure casts a duty on the counsel for the respondents to inform the Court about the death of such respondent/respondents whenever he come to know about it. When the death is reported in the proceedings and the appellant is informed, the appellant has knowledge of the death and there is a duty on the part of the appellant to take steps to bring the legal representatives of the deceased on record in place of the deceased. 60. As per the pleadings of the learned counsel for the appellants, he submitted that the deponent learnt from neighbours of respondent 1st party that respondent Nos. 1(g), 1(h), 3, 5 and 7 have died, who are close relatives of respondent No. 1(a) to 1(f), (i), 1(j), 2(a), 2(e) and 4. Learned counsel for the appellants further submitted that respondent 1st set never disclosed the death and names of the heirs of aforesaid deceased-respondent Nos. 1(g), 1(h), 3, 5 and 7. Re.: I.A. No. 04 of 2022 61. This interlocutory application bearing I.A. No. 04 of 2022 has been filed for direction to supply information with regard to date of death and name of heirs of deceased-respondents. 62. 1(g), 1(h), 3, 5 and 7. Re.: I.A. No. 04 of 2022 61. This interlocutory application bearing I.A. No. 04 of 2022 has been filed for direction to supply information with regard to date of death and name of heirs of deceased-respondents. 62. Since, the contesting respondents are close relative of the deceased-respondents, the respondent 1st set is directed to supply the date of death and details of the heirs of the aforesaid deceased-respondents. 63. Accordingly, I.A. No. 04 of 2022 is disposed of. 64. Considering the I.A. No. 02 of 2020 and I.A. No. 03 of 2020 and nature of the case, this Court finds that there is no any apparent negligence on the part of appellants, though substitution petition has been filed after long gap. The delay has been explained as the appeal had already been admitted in the year 1990 and no periodical date in the second appeal was fixed or listed so that development in the matter could have been known to the parties. 65. In the peculiar circumstances, delay is condoned in filing the petition for setting aside the abatement and also setting aside the abatement of heirs of the deceased-appellants as well as respondents. The Office is directed to substitute the name of the heirs of the deceased-appellants in place of concerned deceased-appellants as also delete the name of the concerned deceased- appellants. Further, Office is directed to substitute the name of heirs and legal representatives of deceased-respondent Nos. 8, 10, 13, 14, 15(a) and 16 in place of the aforesaid deceased-respondents after deleting their names form the memo of appeal. 66. Accordingly, I.A. No. 02 of 2020 and I.A. No. 03 of 2020 are allowed subject to the payment of Rs. 5,000/- (Five Thousand) within four weeks from today to the learned counsel for the respondent 1st set.