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2024 DIGILAW 246 (HP)

Gurdei (deceased) through LRs v. Mohan Lal

2024-04-08

VIRENDER SINGH

body2024
JUDGMENT : Virender Singh, J. The applicants have preferred the application under Order 22 Rule 4 CPC, for brining on record the LRs of deceased appellant No. 1(d), who, as per the application, died on 20.5.2016, leaving behind the legal representatives, whose names have been mentioned in para-2 of the application. The application has been moved on the ground that the appellants/applicants have filed the present appeal, before this Court, however, the same was dismissed in default, on 10.3.2023. 2. When, the process of moving the application for restoration of appeal, has been initiated, then, the counsel, representing the appellants came to know about the fact that appellant No. 1(d) Ishwar Dass had died on 20.5.2016. 3. Since, the application has been filed after the prescribed period of limitation, as such, by moving CMP(M) No. 1584 of 2023, a prayer has been made to condone the delay, on the ground that the applicants/appellants were never intimated by their counsel, nor they were aware about the same. They came to know about filing of the appeal, when they received the notice in the execution petition. Thereafter, they had contacted their counsel to know about the status of the appeal, then, they came to know about the dismissal of the appeal, in default. 4. According to the applicants, thereafter, the applicants have moved the application, on 7.8.2023, before the High Court Legal Service Authority, for appointment of Legal Aid Counsel. Consequently, on 18.9.2023, the Legal Aid Counsel was provided to them to defend their case. They contacted the Legal Aid Counsel, on 22.9.2023. Thereafter, the application was prepared and as such, a prayer has been made to condone the delay, mentioned in the application, as seven years, nine months and nine days. 5. This application has been contested by the non-applicants, on the ground that appellants Uma Devi and Ishwar Dass, expired on 10.3.2022. Thereafter, application bearing No. 4391 of 2022, was moved for early hearing of the appeal. 6. In the application, respondents have pointed out the factum of death of aforesaid person and also submitted that steps have not been taken for bringing on record their legal representatives. 7. Thereafter, the appeal was dismissed for non-prosecution, as no one had appeared. 8. Thereafter, application bearing No. 4391 of 2022, was moved for early hearing of the appeal. 6. In the application, respondents have pointed out the factum of death of aforesaid person and also submitted that steps have not been taken for bringing on record their legal representatives. 7. Thereafter, the appeal was dismissed for non-prosecution, as no one had appeared. 8. On the basis of above facts, it has been pleaded that the appeal has been abated, as steps have also not been taken till 25.9.2023, for bringing on record the legal representatives of appellant No. 1(d), Ishwar Dass. On the same ground, the application under Order 22 Rule 3 CPC has also been contested. 9. Applicants have filed rejoinder denying the factual position, by virtue of which, the application has been contested. 10. Perusal of the record shows that the appeal was filed on 20.3.2010. The appeal was admitted on 15.7.2011. During pendency of the appeal, legal representatives of sole appellant were brought on record, as appellants No. 1(a) to 1(f), vide order dated 17.12.2014. 11. During the pendency of the appeal, respondents have preferred CMP No. 4391 of 2022, in which a prayer has been made for early disposal of the appeal, on the ground that the respondent Mohan Lal is 79 years old and is not keeping good health. When, the application was considered, then, the factum of death of appellants Uma Devi and Ishwar Dass, was noticed. On 23.4.2022, the following order was passed, by this Court, while disposing of CMP No. 4391 of 2022: “Even though, this application has been filed by applicants/respondents No. 1 and 2 for early hearing of the appeal, however, it would be noticed that appellant No.1-Uma Devi and appellant No.4-Ishwar Dass have died and their legal representatives have not been brought on record and, according to the applicants/respondents N.1 and 2, the appeal has abated. The application is disposed of. The appellants are directed to take steps for brining on record the legal representatives of deceased-appellants Uma Devi and Ishwar Dass within four weeks. However, this does not mean that the Court has extended the statutory period of limitation for bringing on record the legal representatives of aforesaid deceased-appellants and, therefore, the applications as and when filed for bringing on record their legal representatives shall be considered on their own merits.” 12. Thereafter, the matter was taken up on 10.3.2023. However, this does not mean that the Court has extended the statutory period of limitation for bringing on record the legal representatives of aforesaid deceased-appellants and, therefore, the applications as and when filed for bringing on record their legal representatives shall be considered on their own merits.” 12. Thereafter, the matter was taken up on 10.3.2023. On that day, neither the appellants nor their counsel put appearance, as such, the appeal was dismissed in default. Thereafter, the appeal was restored on 11.1.2024. 13. The present applications have been filed by the appellants for bringing on record the LRs of appellant No. 1(d), after condoning the delay in filing the application. 14. Death of respondent No. 1(d), as per the application, had taken place on 20.5.2016 and after 17.12.2014, the matter was listed in the Court on 23.4.2022. Meaning thereby, for a period of about 7 years, the matter was not listed before the Court. 15. As per contents of the application, when the appeal was dismissed in default, thereafter, they had applied to the High Court Legal Service Committee, for appointment of Legal Aid Counsel, for moving the application for restoration of appeal. Consequently, the application for restoration of the appeal was moved, which was allowed. 16. Considering the low legal literacy of Indian mases, the plea of the applicants that they came to know about the factum of dismissal of the appeal in default, after they had received notice, in the execution petition, through the Court of learned Senior Civil Judge, Solan, cannot be denied. 17. Death of appellant No. 1(d) had taken place on 20.5.2016 and the appeal was dismissed in default on 10.3.2023. The matter was not listed after 17.12.2014 and the same was listed, on the application of the respondents, only on 23.4.2022. 18. Initially, the appeal was filed by Gurdei. After her death, her LRs were ordered to be brought on record. Alongwith the application for restoration of the appeal, the applications under consideration were moved on 26.9.2023. Meaning thereby, the applications were simultaneously being moved by the applicants in this case, one for restoration of the appeal and other for bringing on record the LRs of appellant No. 1(d). The application for restoration was allowed on 11.1.2024. 19. It is no longer res-integra that length of delay does not matter, and it is the explanation, which matters. Meaning thereby, the applications were simultaneously being moved by the applicants in this case, one for restoration of the appeal and other for bringing on record the LRs of appellant No. 1(d). The application for restoration was allowed on 11.1.2024. 19. It is no longer res-integra that length of delay does not matter, and it is the explanation, which matters. The explanation, given by the appellants/applicants, appeals to the judicial conscience of this Court. As such, the explanation, so given, is accepted. 20. Law regarding impleadment of the legal representatives has elaborately been discussed by Hon’ble Supreme Court in Perumon Bhagvathy Devaswom versus Bhargavi Amma (dead) by LRs and others, reported in (2008) 8 SCC 321 . Relevant paragraph-13 of the judgment is reproduced as under: “13. The principles applicable in considering applications for setting aside abatement may thus be summarized 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 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, 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. (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 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. 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.” 21. Consequently, the application under Order 22 Rule 3 CPC is allowed, after condoning the delay, in filing the application, under Order 22 Rule 3 CPC, and the legal representatives of deceased appellant No. 1(d) are ordered to be brought on record, by setting aside the abatement, if any. The applications are, thus, disposed of. RSA No. 122 of 2010 22. Vide separate order of even date, passed in CMP(M) Nos. 1583 and 1584 of 2023, the legal representatives of appellant No. 1(d), are ordered to be brought on record, after condoning the delay. 23. Amended memo of parties be filed, on the next date of hearing. 24. List on 30.4.2024.