1 HIGH COURT OF MADHYA PRADESH AT JABALPUR R.P. No.1342/2017 ([ENTITY] & others vs. Smt. Pushpa Mishra & another) Jabalpur, dated 13.04.2018 Shri [ENTITY], learned counsel for the petitioners. Shri [ENTITY], learned counsel for the respondents.
This review petition has been filed by the petitioners against the order dated 08.11.2016 passed by this Court in [CASE NUMBER].
Heard arguments of learned counsel for both the parties. Perused the record.
Learned counsel for the petitioners placed reliance upon the case of Dev Lal vs. Faili AIR 1[SECTION]51 Madhya Bharat 156 and State of M.P. vs. Jay Singh AIR 2004 Madhya Pradesh 66 and contended that the interest of justice required that the delay should have been condoned. This Court did not examine the matter properly and dismissed the appeal in limine.
Learned counsel for the respondents vehemently opposes the prayer of learned counsel for the petitioners.
As per office report this review petition is time barred by 352 days. The limitation period for filing review petition is 30 days. Application under [SECTION] of the [ACT] along with the affidavit of petitioner no.1-[ENTITY] has also been filed by the petitioners on the ground that they did not know about the earlier order. They were under the impression that the appeal is pending. On 20.11.2017, they came to know that the appeal has been dismissed as abated. After receiving the certified copy of the impugned order, this review petition has been filed by the petitioners on 30.11.2017.
It is settled law that Under [SECTION] of [ACT] for review the earlier order; the Court has very limited jurisdiction.
The present review petition is time barred by 352 days. I do not find any satisfactory and cogent reason to condone such inordinate delay caused in filing this petition. The petitioners in very casual or routine manner has filed the application under [SECTION] of the [ACT].
Further that, the [CASE NUMBER] was pending since 2006. On so many occassions petitioners were absent, particularly on 08.11.2016, when impugned order was passed. In the present petition, they have failed to explain any proper and satisfactory reason of their regular absence, which indicates that petitioners have lost interest in prosecuting the case and are not in a hurry to dispose their appeal.
During pendency of the said appeal respondent No.1 has died on 26.04.2010. Provision of [SECTION] was applicable since then but upto six years petitioners did not proceed to implead legal heirs of respondent no.1 as party to the appeal whereas the prescribed period for the same is [SECTION]0 days. Even though, [CASE NUMBER] was pending but it was time barred.
No application under [SECTION] of the [ACT] has been filed along with the aforesaid application of [SECTION] & [SECTION] of [ACT]
It is necessary to state the law governing the field. [SECTION], [SECTION] in the following manner:-
"[SECTION].
4. Procedure in case of death of one of several defendants or of sole defendant.- (1) Where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under [SECTION], the suit shall abate as against the deceased defendant.
[(4)The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. ] [(5) Where,
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the [ACT], 1[SECTION]63 (36 of 1[SECTION]63), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the [ACT], 1[SECTION]63 (36 of 1[SECTION]63), for setting aside the abatement and also for the admission of that application under [SECTION] of that Act on the ground that he had, by reason 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 the said [SECTION], have due regard to the fact of such ignorance, if proved."
[SECTION], [SECTION] also placed below for better appreciation.
"[SECTION] Rule [SECTION]
[SECTION]. Effect of abatement or dismissal.- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of [SECTION] of the [ACT], shall apply to applications under [SECTION].
[Explanation: Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]"
12. The above provisions are very clear to show that the substitution of the party must be filed within [SECTION]0 days from the date of death. If no substitution is prayed within [SECTION]0 days, the suit or appeal abates automatically against the deceased respondent. At the same time for setting aside the abatement the appellant on showing sufficient cause as required under [SECTION] of the [ACT]. Similarly, if the petition for substitution is prayed within these 60 days, the abatement stands, but [SECTION], [SECTION] [ACT] allow the plaintiff or defendant to file a petition for condonation of delay, set aside the order of abatement in accordance with the provision of [SECTION] of the [ACT].
Thus, there are ample provision to allow a party to take step for bona fide disposal of the suit or appeal so that the trial court or appellate court can adjudicate the claim after condoning the delay.
In the case of N. Balakrishnan- v. M. Krishnamurthy; (1[SECTION][SECTION]8) 7 SCC 123 where Their Lordships was pleased to explain the purpose of limitation under law in the following manner at paragraphs- 11 and 12:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
After discussing the cases of [PRECEDENT] through Legal Representatives, AIR 1[SECTION]64 SC 215 and [PRECEDENT], in the case of [PRECEDENT], it has held that:-
"Procedural laws are as valid as any other law and are not meant to be brushed aside by the Court. The provision fixing a particular time for making an application for bringing legal representatives on record with the consequence of the suit or appeal abating if no application is made within time, have been enacted for expeditious disposal of cases in the interest of proper administration of justice. It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the absence of good grounds results in injustice to the party concerned.
The petitioners failed to file an application under [SECTION] of the [ACT] for condoning the delay.
In such circumstances, there is no ground to review the impugned order.
Accordingly, the review petition stands dismissed.
(Smt. [ENTITY]) Judge RJ